James McManus* - THE ROLE OF A PRISONS OMBUDSMAN IN THE
PROTECTION OF PRISONER’S RIGHTS
versione italiana
I have just completed a five year period as the first Prison
Ombudsman for Scotland and I would like to share with you some
reflections on what I think the post has achieved in Scotland
and what it might offer to prison systems generally.
THE ORIGINS OF THE OFFICE IN SCOTLAND
It is important to understand where the post came from in Scotland.
Scottish prisons had simply grown from the last quarter of the
19th Century without much thought being given to what they were
for or how they should be run. By 1980 much of the law regulating
them, the buildings in which they were housed and the attitudes
of staff, the public and the prisoners was still firmly based
in the 19th Century. Throughout the 1980’s, pressure for change
mounted and I would identify two particular pressures as crucial
in promoting the change which has happened. The first of these
was prisoners themselves. The 1980’s in Scottish prisons was
a decade of riots, hostage taking, severe damage to prison property
and some damage to individuals, mostly prisoners. The authorities
responded in the traditional way. Acting on the assumption that
the troubles were caused by a "few bad apples", they identified
individuals and subjected them to a highly restrictive regime.
But new "bad apples" simply filled the spaces left and disturbances
continued. The traditional response had not worked and eventually
some people began questioning the analysis behind this response.
There was a crisis in maintaining good order and discipline.
Perhaps the underlying reason was a crisis in legitimacy of
the way prisons were run. The second pressure came from staff
themselves, particularly from senior staff who were increasingly
University graduates with a firm foundation in both management
and penology, though rarely in law. They were aware of the growing
involvement of the ECHR in prison issues but perhaps more aware
of the collapse of the treatment model of imprisonment and the
widespread adoption of the justice model. In a famous English
case in 1983 the judge, Lord Wilberforce, had said, "A convicted
prisoner, in spite of his imprisonment, retains all rights not
taken away expressly or by necessary implication." This conflicted
strongly with the traditional approach in Scotland which had
been to accord prisoners at best privileges which could, of
course, be forfeited virtually at the whim of the prison administrators.
The staff saw the Justice Model in its purest form as promoting
an arid prison environment. The role of staff in a prison run
under this model was simply that of a turnkey. This did not
fit with their aspirations and they set about a fundamental
re-examination of the prison system to attempt to create an
environment which both respected the rights of prisoners and
might conduce to a positive regime with a view to prisoners
addressing the issues which had led them to imprisonment. The
result of that endeavour was a series of position papers outlining
the basis for a new approach to imprisonment. The three most
important papers were called Custody and Care (1988), Opportunity
and Responsibility (1990) and Right and Just (1992). The first
two papers spelled out the basic approach: the main task of
a prison service is to hold, in secure and safe surroundings,
persons committed by the courts. While persons are in prison,
they are entitled to be treated as responsible people. As such,
they should be offered choices, and these choices should include
facilities to assist them in addressing their offending behaviour.
RIGHT AND JUST
In this new culture, it was seen as crucially necessary to
review the existing law and to bring it up to date in both form
and content. This process started with a consolidating statute
in 1989 and proceeded to a totally new set of Prison Rules in
1994. The new Rules were a radical breakthrough. Not only did
they spell out a whole series of entitlements for prisoners,
but they also required that prisoners and their legal advisers
be given access to the full Rules and that prisoners be given
reasons for decisions affecting them. This was a real step forward
in opening up a closed world. Right and Just specifically addressed
the issue of the complaint systems in prisons. Everyone recognises
the special problems of the prison when it comes to dealing
with complaints. Prisoners are particularly vulnerable to abuse
– by fellow prisoners and by staff. They spend 24 hours per
day 7 days per week in close confinement with others in a situation
where every aspect of their life is potentially subject to control.
If power corrupts then absolute power might corrupt absolutely.
In the prison setting, there is the potential for staff having
absolute power over prisoners. It is thus particularly important
that there are effective mechanisms available to enable prisoners
to raise issues concerning them and to have these issues properly
addressed. The existing complaints system in Scotland was primitive.
The prisoners could ask to see the governor on any issue, but
access was controlled by staff, very poor records were kept
of issues raised and prisoners had little confidence in the
system. Equally, prisoners could formally petition the government
minister responsible for prisons. Such petitions, however, were
answered by civil servants of a lower grade than governors and
they tended to rely on governors for all the information used
in answers. The process took a long time and rarely changed
anything. Prisoners thus had little confidence in it. Prisoners
could also complain to the Visiting Committee, an independent
lay body with authority to investigate complaints and to make
recommendations to governors. However, few of the members of
visiting committees had much idea about the realities of prison
life. They spent little time in the prisons and generally relied
on staff for all their information. They thus rarely changed
anything and prisoners had little confidence in them.
FUNDAMENTALS OF A GOOD SYSTEM
Right and Just suggested a radical overhaul of the system.
It thought it was crucial to have a complaints system which
was;
1.easy to access
2.speedy
3.effective
4.efficient
5.recorded
6.independent element.
Accordingly, they re-designed the internal complaints system.
Prisoners were first encouraged to raise issue verbally with
the basic grade staff. If this fails to resolve the issue, the
next stage is for the prisoner to raise the matter formally
in writing again with the basic grade staff. Strict time targets
for responding to such complaints are laid down in the rules,
with 24 hours being allowed for an answer at a first stage.
The system is thereafter hierarchical, with prisoners then having
access to hall managers, an internal complaints committee, before
which the prisoner has a right of audience, and then the governor
in charge. Initially, prisoners were also allowed access to
prison service headquarters but Right and Just also suggested
a Scotland wide independent complaints committee with the power
to make recommendations to the minister in charge after they
had investigated any complaint. Events overtook the recommendation
for the establishment for a national complaints committee. After
the riot in Strangeways Prison in Manchester England, the government
established a committee of enquiry under the chairmanship of
Lord Woolf. The Woolf report concentrated strongly on the deficiencies
of the internal complaints system in English prisons. It recommended
the appointment of a specialist prisons ombudsman who would
be totally independent of the prisons department and would report
only to the minister in charge of prisons. This recommendation
found favour in England and was also adopted in Scotland as
a replacement for the proposed national committee.
TERMS OF REFERENCE
The post was publicly advertised in Scotland and I was interviewed
and appointed in 1994. My terms of reference were to investigate
any complaint brought by a prisoner who had exhausted the internal
complaints procedure and had failed to achieve satisfaction.
My remit covered only issues under the control of the Scottish
Prison Service and thus excluded matters relating to conviction
and sentence and release on parole. Also excluded were matters
relating to professional medical judgement. I was given authority
to enter any Scottish prison establishment, interview staff
and prisoners in whatever conditions I determined and to have
access to all appropriate paperwork. I had no executive decision
making power but relied on the ultimate power to make a formal
recommendation to the Chief Executive of the Scottish Prison
Service. I was also required to produce an annual report for
presentation to Parliament and publication.
MY EXPERIENCE
Throughout my time in office, I experienced absolutely no problems
in obtaining the full and free access to which I was entitled.
Indeed, it was clear in many cases that the complaints which
came to my office had actually been drafted by staff for prisoners
and in other cases that prisoners had been actively encouraged
by staff to raise issues with me. Early on in my term of office,
I became concerned at the time delays occasioned within the
internal procedures by the requirement that prisoners go through
the final stage in the process, complaining to prison service
headquarters. I suggested that this level of the process could
be eliminated since it rarely seem to produce any change and
simply added some four weeks to the complaints process. My representations
on this point were accepted and prisoners were authorised to
complain to me as soon as the governor in charge in the individual
prison had the opportunity to deal with the issue.
MODUS OPERANDI
I was left to establish my own method of operating subject
to the requirement that prisoners should submit their complaints
personally and in writing. The requirement for writing is a
difficult one to impose in the prison environment. Accordingly,
the commission was prepared to accept initial approaches from
anyone on behalf of the prisoner, or directly from a prisoner
by telephone. We then saw the prisoner in person and confirmed
that he or she wished to proceed with the complaint. Indeed,
my generally policy was to see as many complainers as possible
face to face since this not only facilitated the gathering of
evidence but also insured that the prisoner knew that the complaint
was being investigated seriously. I also saw many of the staff
involved face to face. It quickly became apparent that in some
cases a mistake had been made either by an individual or as
a result of following mistaken established practices. My preference
was always for obtaining speedy resolution of complaints. Thus,
if staff agreed that a mistake had been made and were willing
and able to remedy it there and then, I saw that as an ideal
way of resolving the problem. In most cases that ended the matter
and there was no need to resort to my formal power of making
a recommendation to the Chief Executive of the prison system.
However, if the mistake was the result of structural problems,
or if staff did not accept my view, I did resort to formal recommendations.
This ensured that both the individual prisoner’s complaint was
resolved and that corrective action could be taken to eliminate
structural problems. By the end of my period of office, many
more matters were resolved in discussion with staff, a process
I called conciliation, than by means of resort to a formal recommendation.
As well as producing speedy results, this process also seemed
to me to be better at ensuring that the individual member of
staff involved learned from the process directly. It also avoided
contributing to something I see as a big problem in prisons,
which is the blame culture. Blaming has never seemed to me to
be a good method of ensuring attitudinal change on the part
of prison staff.
CONTRIBUTION TO THE SCOTTISH PRISON SERVICE
In terms of individual cases I made a difference for about
30% of individual applicants. These applicants did not necessarily
get all that they had asked for, but they achieved at least
some of their objectives in complaining. For the other 70%,
nothing changed in relation to what they had complained about,
but they did at least secure a further explanation for the outcome
about which they were unhappy. We did a "user survey" each year
and one of the encouraging results was that many of those who
had not obtained a change in their situation nonetheless felt
that their complaint had been properly investigated and an explanation
provided for the outcome. However, I would want to suggest that
the office of ombudsman contributed much more to the system
than simply the changes it produced in individual cases or the
more contented prisoners resulting from fuller explanations
of their situation. First, the very existence of the office
contributes to the legitimacy of the system. As an independent
outside person (and the reason for the five year term of appointment
is to ensure that the ombudsman remains an outsider), to whom
prisoners had easy access and who provided a speedy response,
investigation taking an average of 12 days, I provided a guarantee
to prisoners that complaints would be dealt with seriously.
Secondly, the office contributed to the efficiency of the system.
The very awareness of the possibility of external review made
first the internal complaints answering system more efficient
and second the original decision making more careful. The identification
of structural problems, and the proposal of remedies for these
assisted the prison service in improving overall procedures.
Thus, many of my cases concerned prison disciplinary proceedings
and it was clear to me that there was systematic failure to
adhere to the standard principles of natural justice in these
cases. I drew this to the attention of the Chief Executive on
several occasions and pushed for the creation of a training
manual for all prison governors on this issue. Eventually such
a manual was drafted and I was personally involved in the training
of all prison governors in the conduct of adjudication. This
has now resulted in a substantial decrease in complaints about
these procedures. Similarly, many complaints were about security
category allocations of prisoners. Prisoners security categories
determines many of the conditions they experience during imprisonment
and various practices had grown up which restricted the exercise
of discretion on the part of staff in allocating prisoners to
a particular security category. Using the standard administrative
law rules, which require that discretion must be properly exercised,
I was able to questions these established practices and ensure
that individual decisions were made taking into account all
relevant factors and leaving out of account all irrelevant ones.
Prison staff in this procedure became used to explaining their
decision making processes to an outsider and responded well
when that outsider pointed out the wider legal context within
which decisions have to be made. The net result was a considerable
change both in their practice and in their culture of decision
making. Indeed I think that my conciliatory approach greatly
assisted the whole process of cultural change. Many things in
a prison system are done the way they are because that is the
way they always were done. Moving people on is an extremely
difficult process, more difficult even then changing old buildings.
It is a process which can be done much better through education
and explanation than by bullying and public shaming. A prison’s
ombudsman is ideally placed to carry out this function within
a prison system. I am very conscious that I was pushing at an
open door in my work as a prison ombudsman in Scotland. The
prison system was looking for ways of improving itself and saw
an external ombudsman as one way forward. Without that openness,
and without the reform of the internal complaint process which
preceded my appointment, I am sure that things would have been
much more difficult for me. But the will was there among the
prison professionals who knew that they were standing at a crossroads
and had to change. I consider that I have assisted them to change
in the right direction and their response to me encourages me
to believe that I am not deluding myself. I would thus recommend
the appointment of a prison’s ombudsman to any system which
is resolved properly to face the challenges of legitimacy currently
facing penal systems. Not least, I can happily record that,
since my appointment, there has not been a single mass riot
in any Scottish prison. I cannot argue post hoc propter hoc
but it is something to think about.
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