We rely on the inspections regime to know what goes on our prisons. They provide both a window and a mirror, argues Prof Nick Hardwick: ‘a window to see the conditions that exist and a mirror to expose the conditions we tolerate’. This article is an edited version of an article that appears in the latest issue of Proof magazine – out now.
Earlier this year my successor Peter Clarke described HMP Bedford as on ‘a seemingly inexorable decline’ that was ‘evident through the results of the four inspections carried out since 2009’. It was, in his view, ‘fundamentally unsafe’. The report described how one segregated prisoner caught and killed a number of rats in his cell during the inspection.
Buy PROOF here.
Nick will be speaking at the launch of PROOF magazine on July 9 at the National Union of Journalists in central London.
Speakers include former prison governor John Podmore, Frances Crook of the Howard League, former prisoner Paula Harriott,the artist Patrick Maguire and veteran crime correspondent Duncan Campbell.
Hardeep Matharu, editor of Byline Times, and Jon Robins, editor of the Justice Gap will chair.
Where and when: The event takes place downstairs at the NUJ,72 Acton Street, WC1X 9NB London.
Book here. Tickets are £6 plus tax and includes a free copy of ProofMagazine worth £15.
Thanks to Hodge Jones & Allen for sponsoring the event and the Justice Hub at Manchester University’s School of law for sponsoring the magazine.
Nelson Mandela famously wrote: ‘It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.’
Most of us cannot go inside our jails. We rely on prison inspections to provide both a window and a mirror: a window so we can see the conditions that exist and a mirror to expose the conditions we tolerate.
It is a sobering picture if we care to take a look. And even if you do not care much about the treatment of prisoners – self-interest should recall that almost all prisoners will one day be released to live amongst us.
Independent inspections are necessary because prisoners are uniquely vulnerable to neglect and ill-treatment. Unlike almost any other public institution, it is impossible for members of the public to find out for themselves what is being done in their name. It is not perfect of course, but we can visit a relative in hospital and see if they are comfortable and the ward is clean. We can talk to the nurses and doctors. Our children can tell us what is happening at school and we can visit on open days and talk to their teachers.
But few of us can see what is happening behind prison walls and even when access is permitted, it is strictly controlled.
Prisoners’ vulnerability is magnified because if the power imbalance between prisoner and gaoler. It is not just that the gaoler can use force or lock the prisoner up – it is more that the prisoner is dependent on the gaoler for all the minutiae of life:
Need a new toilet roll? Got none here…
Need a gate unlocked so you can get to your education class? Can’t be arsed…
Need a good report for your upcoming parole hearing? Now I’ve got you…
And if a prisoner dares to complain, who is going to believe them? Even less credible if they are a child or have mental health problems.
Then there is the process of ‘normalisation’. We all know how we get used to the madness in our own organisations. Things we felt were very strange when we began a new job, we barely notice after a few months. In prisons that process is magnified because it is so difficult for those who work in prisons to compare what they are doing with what happens in similar institutions elsewhere. It is not just that prison walls prevent us from looking in; they prevent those who work there from looking out.
I remember an inspection of Feltham Young Offenders Institution in 2013 where we found batons had been drawn over 100 times in the year – far higher than in any other prison. We were told it was justified as a form of ‘de-escalation’ but in truth it had become normalised (‘the way we do things around here’) to deal with any misbehaviour.
Finally, there is the phenomenon of what my predecessor Dame Anne Owers described as the ‘virtual prison’ – that is the prison the governor thinks he or she is running on the basis of the reports and data that come into the office and which is often very different from the real prison on the wings.
Sometimes prison governors were in such denial about what was happening in their prisons that we introduced the practice of taking a camera on inspections – as much to confront a governor about what was really happening as it was to illustrate our reports.
It is a perhaps a credit to the development of public institutions in England and Wales that these issues have been recognised here longer than elsewhere. The first person who might be described as a prison inspector was John Howard (1726-1790).
Howard was the High Sheriff of Bedfordshire and when appointed part of his duties was to check conditions in the local gaol. Unusually for the time, he did so for himself and he was so concerned by what he found that he spent the rest of his life galloping round England and Europe, hammering on prison gates, demanding to be let in, going around the prison, notebook in hand, talking to prisoners and staff, writing reports on what he found, and demanding improvements.
Over the years the inspection system developed with greater or lesser degrees of independence according to the mood of the times until growing concerns about escapes, industrial relations problems and poor conditions led to the creation of the modern inspection system and the post of Her Majesty’s chief inspector of prisons by the Criminal Justice Act 1982.
The chief inspector’s powers and responsibilities were enhanced by the UK’s ratification to the United Nations Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (OPCAT). OPCAT both established an international monitoring system (the Sub-Committee on Prevention of Torture or SPT) and required state parties to establish an independent local system known as a National Preventive Mechanism.
Uniquely amongst human rights instruments at that time OPCAT aimed to proactively prevent human rights abuses rather than to reactively investigate or report on them. Article 1 of the OPCAT states:
The objective of the present Protocol is to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.
Later this year the SPT will be visiting the UK to assess the effectiveness of the UK’s system. What will they find?
The UK designated its existing independent monitoring bodies for any place where people might be deprived of their liberty – for example, police custody, immigration detention and secure psychiatric hospitals as well as prisons – as its National Preventive Mechanism and gave the chief inspector of prisons responsibility for co-ordinating the 21 bodies from England, Northern Ireland, Scotland and Wales.
The implementation process had weaknesses, notably the lack of a legislative basis setting out the powers and responsibilities of bodies, but in practice in prisons it at least supported the chief inspector’s independence and rights of access to any prison and go anywhere within it, speak in confidence to any prisoner, see any document and publish reports of its findings entirely at his or her discretion. Similar requirements apply to other places of deprivation of liberty.
Prisons are inspected against international and European human rights standards. Almost all inspections are unannounced. An advance group of inspectors will arrive at the prison and phone the prison from the car park to say they are outside, coming in and require keys. While the team leader meets the governor and makes arrangements for the full team to arrive, other inspectors go immediately to the areas of most concern such as the segregation block and the fan out round the prison as a whole. The inspectorate’s research team will conduct a survey of a large randomly selected group of prisoners on all aspects of prison life.
This first stage usually lasts from Monday to Wednesday. The following week the full team of up to 12 inspectors, including those from another National Preventive Mechanism member such as Ofsted and the CQC, will return and will spend the week in the prison. The inspection will follow up issues of concern identified in the survey; speak to prisoners individually and in groups; speak to staff, managers and other visitors to the prison; examine documents and data; and spend time simply observing every aspect of the prisons regime.
At the end of the inspection the team will assess the evidence they have obtained from all the sources they used and make an assessment of the outcomes for prisoners. There will be immediate feedback to the prison and if there are exceptionally serious concerns, an Urgent Notification Notice will be given to the Secretary State who is required to respond within 28 days.
A report and recommendations will be produced and published on all inspections and the prison service produces an action plan in response which is also published. In addition to individual inspection reports, the inspectorate also produces thematic reports that address systemic issues and a range of policy documents that feed into wider discussion of prison reform.
It is, I would argue, a pretty effective process that has been developed and improved by successive chief inspectors. The accuracy of inspection reports is rarely challenged and it is fair to say that the inspection system is England and Wales is regarded as a model of international best practice.
I never walked away from a prison satisfied that we had found everything that needed to be found. In truth inspections are a snapshot and while I think they were reasonably accurate in identifying the general experience of prisoners in a prison, we could not say for certain that there were not a smaller numbers of prisoners being victimised or poor performance that was not showing up in official records or occurring while inspectors were present. I am not surprised that occasionally undercover reporters such as the BBC Panorama’s exposéof staff bullying at Medway Secure Training Centre in 2016 find abuse that the inspection did not.
Inspection must not be a substitute for effective management or individual staff candour in exposing mistreatment that prisoners may justifiably feel frightened of complaining about. And international evidence informs us of the importance of accountability and sanction when wrongdoing or neglect is identified.
Weaknesses in these systems is exposed not just by the decline in individual prisons but the dramatic decline of the prison system as a whole. The statistics the prison service produces every quarter paint a chilling picture. Deaths overall, self-inflicted deaths, self-harm and assaults rising every year: 92 self-inflicted deaths in 2018 for instance, up from 70 the previous year and 52,814 self-harm incidents, up 23%. Almost a thousand serious assaults on staff, up 27%.
Faced with this decline, the frustration of Peter Clarke that the inspectorate’s recommendations are not effectively implemented is palpable. In his last annual report for 2017/18, he thundered:
‘…the response to inspection reports is often totally inadequate, showing unacceptably low achievement rates and, in some cases, giving a very clear impression that the reports have been put aside and ignored.’
Clarke has taken a number of effective steps to address this (including the introduction of the urgent notification process) but nevertheless it is reasonable to ask whether the time has come for the inspectorate to have the powers to enforce its recommendations and in effect become a regulator.
That would be a mistake in my view. It would make the inspectorate part of the management of the system and so marking its own homework. It would make the inspectorate a vehicle for assessing and enforcing the delivery of the government’s standards, not monitoring the government’s own compliance with international standards. All chief inspectors have promoted progressive prison reform but there is no guarantee that will always be the case. Imagine an independent chief inspector, not subject to ministerial control, with regulatory powers who demanded harsher conditions as a deterrent – what restraint or scrutiny would he or she face?
We are now in a period of a relatively benign relationships between the current chief inspector, ministers and parliamentary committees. There is a reasonable degree of consensus about the need for reform and the direction that reform should take.
That was not the case when I was chief inspector and for much of the time Chris Grayling was justice secretary. It is a matter of public record that we clashed and my reports were very critical of polices that reduced staffing, increased the prison population and introduced harsher regimes. I have recalled previously how there were attempts to get me to modify my criticisms.
We resisted those challenges and for all the problems that still exist, I believe the inspectorate can take credit for the reversal of policy that took place under Michael Gove when he replaced Chris Grayling in 2015. An examination of the then prime minister, David Cameron’s speech on prison reform in February 2016 for instance shows striking similarity in content and form to key parts of the Inspectorate’s annual report of the year before.
We should not imagine that such challenges will not happen again and so the structures and independence of the inspectorate need to be robust enough to withstand them. I do not believe there is a conflict between the inspectorate’s independence and its effectiveness. One informs the other. The remit of the inspectorate must not be such that it inhibits its ability to call out flaws in national policy as well as local management – and it needs a legislative base that protects its ability to do that.