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Abstract
This article describes the role of ombudsmen in the prison complaints systems in the regions that make up the UK: England and Wales, Northern Ireland and Scotland. It assesses the different systems in each of the three jurisdictions, examines their characteristics, remit and the remedies they can give. It looks at their independence and discusses whether prisoner complaints should be dealt with by special mandate or generalist ombudsmen.
Keywords:
Acknowledgements
The author would like to record her thanks to the Nuffield Foundation for funding empirical work which informed this article.
Notes
1. See the debate in the House of Commons on 10 February 2011, where MPs voted to maintain the ban on prisoners being allowed to vote, despite the ruling by the European Court of Human Rights that the UK's blanket ban was in violation of Article 3, Protocol 1 of the Convention (See Hirst v United Kingdom (No. 2) (2005) ECHR 681).
2. The function of the Prison Inspectorate is to inspect prison establishments on a regular basis. These inspections include physical conditions, quality of prisoner regimes, morale of staff and prisoners, facilities and amenities, and issues of safety and decency. Although they do not deal with individual complaints, they inspect the system for dealing with complaints.
3. Then, as now, complaints to the Parliamentary Ombudsman had to be referred by a Member of Parliament. There is no direct access for complainants. In a recent consultation, the majority of respondents supported the removal of this requirement (Parliamentary and Health Service Ombudsman [PHSO] Citation2011b), a change which may have consequences for prisoner complaints.
4. This was abolished in 2010, when prisoner complaints came within the remit of the Scottish Public Services Ombudsman.
5. Unlike the PPO, the PONI does not have jurisdiction over complaints about probation in the community.
6. When the PONI was within the remit of the PHSO, there did not appear to be any protocols between the two offices either, although it appears that the PONI was expected to make prisoners aware of PHSO's office.
7. Independent Monitoring Boards were originally called Boards of Visitors. Established in 1898, these boards consist of lay volunteers, who visit prisons, hear prisoners’ complaints, and report any concerns to the Minister. They used to have an adjudication function in relation to disciplinary hearings, but this is no longer the case. The Lloyd Review (Citation2001) led to the restructuring of the boards in 2003, when they were renamed Independent Monitoring Boards. For further details see Eady (2007, 268).
8. For privately managed prisons, where the health care is not normally commissioned by the NHS, the Parliamentary Ombudsman deals with complaints about such services.
9. Some aspects of health could be investigated, for example the process for psychiatric assessments, or the process for the treatment of sex offenders.
10. In Scotland, these are referred to as Orderly Room hearings.
11. Some charges are referred to judges.
12. This includes court premises where the deceased has been sentenced to custody or remanded in custody. The jurisdiction also covers those temporarily absent from the institution, for example, at court, in hospital, under escort. It does not apply to those permanently released from custody, although there is discretion to investigate deaths after release, where there may be issues which relate to the care proved while in custody. The remit does not extend to deaths in police cells.
13. Out of a total of 102 staff, 46 were involved in complaints investigations, and 45 in fatal incidents investigations. The remaining 11 were the PPO, secretary and corporate services (Prisons and Probation Ombudsman [PPO] Citation2009a, p. 18).
14. See, for example, the report by the Prisoner Ombudsman into the circumstances surrounding the death of Colin Martin Bell, aged 34, in Maghaberry Prison in the late hours of 31 July and early hours of 1 August 2008, published 9 January 2009.
15. For the PPO, probationers must have exhausted the internal grievance system operated by the probation service, and those in immigration detention centres must have exhausted the internal complaints system of the UK Border Agency.
16. For example, the PPO declined to accept for investigation a complaint that the provision of mince pies at the prison's Christmas carol concert amounted to a bribe to convert to Christianity, on the grounds that it did not raise a substantial issue, and investigation would not be a good use of public money (PPO Citation2011b, p. 17).
17. Four thousand six hundred and forty-one complaints were received, 2324 of which were eligible. (PPO Citation2011b, pp. 17, 48). The lowest eligibility rate was in 2007–08, when it was just 36% of complaints received.
18. Of the 717 complaints received, 328 (46%) were eligible, and 389 were not accepted for investigation (PONI 2011, p. 7).
19. It is not true of the private sector ombudsmen, who normally do make binding awards.
20. The exception to this is the Commissioner for Complaints in Northern Ireland, where recommendations can be enforced in the county court. This power has been little used.
21. BIOA is a self-regulatory organisation, established in 1993 with the main aim of ensuring that the title of ‘ombudsman’ should not be devalued. It has established a set of criteria which must be met before organisations can become ‘ombudsman’ members of the association. These include independence from those who are within jurisdiction. The SPSO is an ‘ombudsman’ member of BIOA; the PPO and PONI are ‘complaint handler’ members.
22. Wales has a Public Services Ombudsman who has jurisdiction over many public services in Wales. However, the Prison Service is not part of the Welsh Assembly's functions; complaints from prisoners are thus within the remit of the PPO. For a discussion of the role of the Public Services Ombudsman for Wales, see Seneviratne Citation2003, Citation2006).
23. See the Parliamentary debates on the Criminal Justice and Immigration Bill, e.g. HC Deb col. 424 7 Nov 2007; HL Deb col. 954 5 Feb 2008.
24. As justice is not devolved to the Welsh Assembly, prison complaints would not be within the remit of the Public Services Ombudsman for Wales. For a discussion of the desirability of a Welsh criminal justice system, see Dingwall Citation2009.
25. Complaints about the police are still dealt with separately, and are not within the SPSO's remit. There was a strong police lobby against bringing police complaints into the jurisdiction of the SPSO. There is a separate police complaints commissioner who deals with police complaints, although complaints about the police complaints commissioner are within the SPSO's remit.
26. This excludes, of course, matters which are not devolved to the Scottish Executive, which remain within the remit of the Parliamentary Ombudsman.