Bullying in prison

There is no Prison Service Order or Prison Service Instruction which deals specifically with the issue of bullying in prison. However, PSI 64/ 2011, Management of prisoners at risk of harm to self, to others and from others (Safer Custody), contains guidance as to how issues of bullying should be dealt with.

Bullying can manifest itself in many different forms: emotional, physical, psychological and verbal. PSI 64/ 2011 recognises this, and can be accessed here: http://www.justice.gov.uk/offenders/psis/prison-service-instructions-2011

What is the prison's approach to bullying?

The National Offender Management ("NOMS") Service has a zero tolerance approach to violence.NOMS also has a duty of care to those affected by violence. 

PSI 64/ 2011, Chapter 7 states:

"Every verbal or physical act of violence must be challenged. Appropriate sanctions for perpetrators must be applied robustly, in a fair and consistent manner.  Victims must be supported and protected."

With regards to non-physical bullying, Chapter 7 also states:

"All incidents of violence must be challenged be they physical, verbal and/or emotional. There a range of options available to staff starting with speaking to the prisoner concerned to make them aware that their behaviour will not be tolerated and that sanctions may be imposed.  The sanctions may be used incrementally or in combination, depending on the seriousness of the incident and/or the wishes of the victim."

What impact could bullying have on a prisoner?

PSI 64/ 2011 indicates the following:

• Reluctance to leave cell;
• Cell is empty of personal possessions;
• Disruptive behaviours displayed by a prisoner in order to remove himself from potential violence or conflict e.g. to segregation unit.

What measures can prison staff take to address the effects of bullying?

PSI 64/ 2011 suggests the following positive measures:

• Encourage proximity to staff while on association or movement between activities to promote safety and build self-confidence;
• Check in cell possessions against the prisoner’s property card (this can also be applied to perpetrators)
• Speak to the prisoner to ascertain any underlying concerns for safety;
• Address poor personal hygiene;
• Support prisoners to gain employment in order to be self sufficient and not rely on other prisoners;
• Encourage victims to reflect on their own behaviours that may result in acts of violence or confrontation from others.

Here you can read a report prepared by the Prison and Probation Ombudsman on the issues surrounding violence and bullying: http://www.ppo.gov.uk/docs/PPO_report_-_violence_reduction_web_.pdf

Barristers in prison

What is a barrister?

If an individual is in prison, they were probably represented by a barrister in court at their trial. A barrister is a lawyer who represents individuals in court and specialises in advocacy.

When may I be represented by a barrister if I am in prison?

You may be represented by a barrister in the following situations:

At a parole hearing

If you are represented by a barrister at an oral hearing, he will represent you in front of the Parole Board and be your advocate. He will prepare submissions based on the parole dossier and other documentation which your solicitor has provided him with.

In an appeal

Often, solicitors instruct barristers to represent their clients in appeals. Your barrister will draft a written application to appeal, and if permission to appeal is granted, and the case proceeds to an oral hearing, he will represent you in the Court of Appeal and advance oral arguments.

In a Judicial Review

If you are commencing a civil action in the form of Judicial Review against the Governor of a prison, the Parole Board or the Secretary of State, your solicitor will instruct a barrister to draft the grounds for your case. If the case proceeds to an oral hearing, your barrister will represent you in the Administrative Court and advance oral arguments.

Article 6

 Article 6 of the European Convention on Human Rights states:

"1.In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

2.Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3.Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and the facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court." 

In what situations could Article 6 apply?

Because of the right to a fair trial is at the heart of a democratic society, it has been held that Article 6 should not have a restrictive interpretation. Therefore, it is submitted that the right to a fair trial applies to those proceedings outside of criminal trials. It logically follows that this includes civil proceedings, and in the context of prison law, this includes civil actions against the prison or the Government. This point regarding civil proceedings specifically was addressed in Raymond v Honey [1983] 1 AC 1:

"At the forefront of those civil rights is the right of unimpeded access to the courts... the right of access to a solicitor to obtain advice and assistance with regards to the initiation of civil proceedings..."

Prohibition of prisoners' legal papers and Article 6

Prisoners who have ongoing legal issues, such as appeals, claims or civil actions against prisons or other bodies need access to their legal documentation. Sometimes, access to this information can be witheld by the prison. Witholding such documentation can be legitimately justified but also potentially gives rise to Article 6 claims.

When can legal documentation be legitimatley witheld?

It depends on the facts of each case. Volumetric control may be a legitimate justification.

What should a prisoner do if they believe their rights under Article 6 have been violated?

They should seek legal advice from a solicitor.

Article 5

Article 5 of the European Convention on Human Rights, the right to liberty and security.

Article 5 ECHR states:

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

a. the lawful detention of a person after conviction by a competent court;

b. the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

d. the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

e. the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

f. the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation."

Guidance on Article 5 can be found here.

More guidance on Article 5.

Information on Article 5 from equalityhumanrights.com.

What relevance does Article 5 have in relation to prison law issues?

Article 5 grants individuals, including prisoners, certain rights in relation to their detention or imprisonment. The purpose of this is to ensure that detention is lawful and not arbitrary. Article 5 is therefore a very powerful safeguard to ensure prisoners and those detained in custody are treated fairly and in accordance with the law. If these rights are breached, a prisoner may be entitled to make a claim against the body responsible for the impingement of his rights. If a prisoner thinks his Article 5 rights have been infringed upon, he should seek legal advice.

Article 5 (4) and recalled prisoners

Article 5 (4) provides:

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

This means that recalled prisoners are entitled to regular and speedy reviews of their detention in order to determine whether or not their detention continues to be justified.

If an individual is recalled to prison whilst serving the licence period of a determinate sentence, he will be released on his sentence expiry date unless he can demonstrate to the Parole Board that he can safely be released before then. The Secretary of State for Justice has a duty to refer such cases to the Parole Board. The Parole Board cannot consider the recalled prisoner's case without a recommendation from the Secretary of State. The case must be referred to the Parole Board within 28 days of recall (s. 255C (4) Criminal Justice Act 2003) and after that, at least every 12 months (s. 256A(1) Criminal Justice Act 2003).

However, the Parole Board can recommend that the Secretary of State makes such a referral by virtue of s. 256A (3) Criminal Justice Act 2003, which stipulates:

"The Board may at any time recommend to the Secretary of State that a person's case be referred under subsection (2)."

The case law reiterates the principle:

"Recall, even of someone who has only a conditional right to his freedom under licence... is a new deprivation of liberty by detention. The prisoner is therefore entitled to take proceedings by which the lawfulness of that detention can be decided speedily by a court under Article 5 (4). Review by the Parole Board of the recall decision... if conducted in accordance with the fairness which the common law requires, is in my view a compliance with Article 5 (4)..." (per Lord Slynn, R (Smith & West) v Parole Board [2005] 1 WLR 350).

This was reaffirmed by Lord Phillips in R (Black) v Home Secretary [2009] UKHL 1:

"What of those determinate prisoners whose release depends upon the decision of the Parole Board? I consider that our domestic law entitles them to release provided that the criteria for their release are satisfied. Article 5 (4) entitles them to judicial determination of that question and timely consideration by the Parole Board will satisfy the requirements of Article 5 (4)."

Therefore, if an individual is entitled to the protection which Article 5 (4) affords, he is entitled to speedy and regular reviews of his case.

What about lifers?

The issue of reviews for life sentence prisoners was considered in Noorkoiv v Home Secretary & Parole Board [2002] EWCA Civ 770. It was held in that case that for lifers, reviews are to be conducted upon tariff expiry.

Article 5 (5) and damages

Article 5 (5) provides an enforceable right to damages if an individual's Article 5 rights have been breached.

Do indeterminate sentences breach Article 5?

No. Indeterminate detention or imprisonment for public protection ("IPPs") do not breach Article 5, however such detention cannot be arbitrary.

Appeals

An individual is in prison because he or she has been found guilty in a court of law of a criminal offence. Invariably, the issue of whether that conviction was correct or lawful can arise for some prisoners.

An individual who has been found guilty in the Crown Court can appeal to the Court of Appeal against his conviction or his sentence.

The information provided below is merely an overview of the grounds upon which an application to appeal may be made. A very comprehensive guide to appeals and the procedure can be found here: http://www.justice.org.uk/data/files/resources/274/How-to-Appeal-2011.pdf

Appeals against conviction

The test for appeal against conviction is whether or not the conviction is safe. The following could render a conviction "unsafe".

• The judge's decisions during the trial: throughout a trial, the judge makes decisions on issues such as admissibility of evidence. If the judge acted unreasonably in his rulings, you may have a ground of appeal. It should be noted that judges have a lot of freedom in how they conduct the trial, therefore the threshold as to whether the judge was unreasonable is a very high one.
• The judge's summing up: if the judge made a mistake in his summing up of a case for the jury, there may be a ground of appeal if and only if this mistake is likely to have led the jury to find the defendant guilty. Again, the threshold for this is very high.
• Objections to jury members.
• New evidence.
• Disclosure issues.
• Mistakes made by a solicitor or barrister: the mistake must have been very serious and must have caused the conviction.

Appeals against sentence

The test for appeal against sentence is whether or not the sentence is excessive.

If a prisoner believes that his conviction is unsafe or the sentence he was given was excessive, he should seek legal advice from a solicitor.

Allocation

Allocation  means placement in an appropriate prison.

Prisoners can be allocated to different prisons for a variety of reasons. For example, allocation to one prison may mean that the prisoner can complete a course which is offered at one prison but not another. Allocation to one prison rather than an other may also mean that the prisoner is closer to his family.

Allocation is central to sentence management.

When allocating, security issues must be balanced with the needs of the prisoner.

The Secretary of State for Justice has wide powers to allocate a prisoner wherever he sees fit (s. 12 Prison Act 1952).

Allocation is a process distinct from categorisation.

Why is allocation to a suitable estate important?

1. Completion of Offender Behaviour Programmes

Some prisons offer courses which other prisons do not. Courses, known as Offender Behaviour Programmes (which will be discussed in a later post) are important for prisoners to engage in sentence planning and demonstrate risk reduction. Therefore, it follows that it is desirable for a prisoner to be allocated to an estate which offers a course pertinent to his sentence plan.

2. Proximity to family

Prison Rule 4 states:

"(1) Special attention shall be paid to the maintenance of such relationships between a prisoner and his family as are desirable in the best interests of both.

(2) A prisoner shall be encouraged and assisted to establish and maintain such relations with persons and agencies outside prison as may, in the opinion of the governor, best promote the interests of his family and his own social rehabilitation."

(The Prison Rules 1999 are a Statutory Instrument and can be accessed here: http://www.legislation.gov.uk/uksi/1999/728/made)

If a prisoner is allocated to a prison which is far away from his family, this may hinder his ability to maintain family relationships. As such, it is desirable that a prisoner is allocated to a prison which his family can access with relative ease.

What impact does allocation have?

If a prisoner has a sentence planning target to, for example, complete certain offender behaviour work, but cannot complete it in the prison he is currently in, he will not be able to engage effectively with his sentence plan and this will impinge his ability to progress. Lack of progression ultimately impacts upon the question of release.

If a prisoner is allocated to a site which is far away from his family, he may not be able to see them as frequently as he would have hoped. This could impact on his ability to sustain family and community ties, which are often cited as "protective factors".

What should a prisoner do if he has an issue with his allocation?

If a prisoner believes that he is allocated in an unsuitable prison, he should seek legal advice from a solicitor. The decision to allocate is one which can potentially be challenged via Judicial Review.

On what grounds can the allocation decision be challenged?

1. Public law grounds

For a prisoner to have a sentence plan target he is unable to meet due to the resources of the prison he is currently at is an error of law. It is irrational to make progress dependent on courses which cannot be completed. The following cases highlight this principle:

• R (Cawser) v Home Secretary [2004] 1 PLR 166;

• R (Lynch) v Secretary of State for Justice [2009] 1 PLR 265

2. Breach of Convention rights

Finally, if a prisoner in unable to maintain family ties due to allocation, there is a potential breach of Prison Rule 4 (see above) and Article 8 of the European Convention on Human Rights. Article 8 provides that there is a qualified presumption in favour of preservation of family ties. Such inteference with family life has to be necessary and proportionate.

Aftercare

If an individual has been in prison for a period of time, particularly if the period has been a lengthy one, one of their concerns may be how are they to cope with life once they are released? They may be specifically worried about where they are going to live or how they are going to find employment.

Prison Rule 5 states:

"From the beginning of a prisoner's sentence, consideration shall be given, in consultation with the appropriate after care organisation, to the prisoner's future and the assistance to be given him on and after his release."

There are resettlement teams in prisons who should help individuals with practicalities when release is approaching. Aside from this, whilst in prison, an individual may acquire skills which help him to live an offending-free life upon release. For example, he may learn new skills, gain qualifications or address substance misuse issues which have contributed to his offending behaviour. However, we cannot pretend that some offenders do end up back inside, and the reasons for this are varied. What is crucial is that a prisoner receives the support he needs once released. There are several organisations which address some of the pertinent aftercare needs.

Support from the Probation Service

If an individual is released from prison on licence, the Probation Service is the body responsible for overseeing action upon release. The Service is provided by the local Probation Trust, and these trusts manage approved premises known as hostels for offenders with a residence requirement on their licence or sentence. This service in particular enables the transition between prison to the outside world is a smooth one in terms of accommodation.

Support from a youth offending team

Youth offending teams strive to help young people stay away from crime. They supervise young offenders serving a community sentence and support those in custody.

Support from a drug or alcohol team

These organisations support and aim to rehabilitate those who have substance misuse problems, or have had them in the past. 

Other support agencies

Mental Health Matters

Prison Advice and Care Trust (PACT) 

Shelter (advice on homelessness upon release from prison)

Prisoners' Advice Service

Citizens' Advice Bureaux (for independent advice on a range of issues, for example, benefits or debt).

NACRO (services for ex-prisoners, including housing and resettlement)