RSSB(B) EVIDENCE TO THE REVIEW OF SPCB SUPPORTED BODIES COMMITTEE FROM RICHARD SMITH, INTERIM SCOTTISH PRISONS COMPLAINTS COMMISSIONER Background: I was appointed the Interim Scottish Prisons Complaints Commissioner in July 2008. I was previously the Interim Chief Executive for the new Scottish Legal Complaints Commission (SLCC). From February 2005 to March 2007, I was the Director of the Scottish Public Services Ombudsman (SPSO) and worked with Professor Alice Brown on the reengineering of the SPSO s business processes and the development of the inquisitorial method of investigating complaints. I was asked by Justice Directorate of the Scottish Government to introduce a SPSO-type investigative methodology into the Scottish Prisons Complaints Commission (the Commission) and to establish, as closely as possible, the Commission as an operational mirror of the SPSO. This instruction was in line with the proposals in the Crerar Review for the standardisation of complaints investigation processes across the public sector in Scotland. The Scottish Prisons Complaints Commission: Since July, the Commission has been reorganised and has adopted a completely new process and approach to investigating complaints. The focus of the Commission is on investigating complaints from prisoners relating to maladministration and/or service failure by the Scottish Prison Service (SPS) that have not been resolved through the SPS's internal grievance system. Unless there are exceptional circumstances, the Commission will only investigate a complaint where the prisoner has exhausted the procedures, as appropriate to the nature of the complaint, as set down in Rules 123 130 of the Prisons and Young Offenders Institutions (Scotland) Rules 2006 (and what is commonly known as the CP System). The Commission has received 150 complaints since 8th July, an average of seven per week. Of the 150 complaints, 111 (75%) have been accepted for investigation but, not all investigations culminate in formal reports. Investigations can be terminated or suspended for a number of reasons including, lack of evidence, change in prisoner circumstances (release, etc.) or unacceptable behaviour by the prisoner. The Commission has so far published 14 reports (draft and final). The Commission cannot investigate complaints that relate to conviction or sentence awarded by the Courts, decisions relating to parole or life licence, complaints relating to medical matters that involve clinical judgement, complaints relating to action taken in respect of appointments or removals, pay, discipline, superannuation or other personnel matters relative to SPS or staff in contracted 1
out prisons, complaints which are the subject of legal proceedings, the opinions of professionals regarding a prisoner or to matters relating to Reliance (SPSO jurisdiction). In line with the SPSO, the Commission 'owns' the investigation and is responsible for defining the scope, method and value of that investigation. The Commission also mirrors the SPSO by refusing to investigate complaints considered vexatious, trivial or without clear value. If the Commission considers that a complaint raised by a prisoner is one we could and should investigate, we will formally contact the complainer and the SPS and advise them of the matter under investigation. The investigation is conducted by the staff of the Commission. The initial focus is on finding the answers to the following two questions: Firstly, what should have happened? This is usually as defined by law and by SPS rules/procedures. Secondly, what actually happened? This is with the intent of revealing any gap between what should have happened and what did happen. The staff of the Commission will then attempt to determine what caused the gap (correct procedure wasn t followed, etc.), who, if anybody, was responsible for the gap and finally, what was the consequence of the gap? The structure of any investigation is a logical sequence of evidence request, evidence provision and evidence analysis. The end point of any investigation is the identification of any root cause(s) of the issue(s) identified in the original complaint. As Commissioner, once my staff have concluded their investigation, I must decide whether the complaint is to be upheld in full or in part. I will then consider whether the Commission wishes to make any specific recommendations to the Chief Executive of the SPS in relation to the complainer. Lastly, I will decide whether the Commission should make any wider recommendations to the SPS in relation to their policies, processes or procedures, for the purpose of helping to avoid any repetition of the root cause issue. This is the first time that the SPS has been subject to this particular form of inquisitorial investigation. I would like to record my thanks to Mike Ewart, Chief Executive, and his team for their support and willing acceptance of the new methodology. I am aware of the comments made by my predecessors regarding the importance of speedy resolution. Most Orderly Room Hearings (disciplinaries) award sanctions of between 3 and 10 days and there is actually very little any agency could do to make a meaningful assessment of the evidence within such a short timeframe. In my experience, prisoners are more concerned with potential implications of disciplinary awards in terms of their location, status and record, than they are with the awards themselves. The Commission already has the 2
ability to fast-track complaints where appropriate and we have done so recently in two complaints from possibly vulnerable prisoners. I must also note that the complainer and/or the SPS can appeal against the findings of the Commission to the SPSO. The Ombudsman may consider whether the Commission has acted reasonably based on the evidence available or is guilty of maladministration and/or service failure. The transfer of functions to the SPSO: In my opinion, it would be feasible and relatively straightforward to transfer the function of investigating complaints against the SPS relating to maladministration and service failure from the Commission to the SPSO. The methodologies and approaches of the Commission and the SPSO are very similar. There are no significant data or process difficulties to overcome and the two members of staff of the Commission have already indicated that they would prefer to remain in the civil service rather than transfer to the SPSO. There would be a requirement to train and familiarise SPSO staff with the SPS and prison rules/routines. The subject matter of some complaints to the Commission can be difficult. Most complaints are lodged by long-term or life prisoners, with a disproportionate number coming from sex offenders, often linked to their treatment programmes. The SPS is a unique organisation, especially given the extent of governorial autonomy and the mixture of SPS managed and contracted out prisons. I would however, like to bring to the Committee s attention two issues which I believe need some consideration before the transfer of function to the SPSO is approved. Firstly, approximately one third of the 150 complaints received by the Commission since July 2008 relate either directly to disciplinary decisions taken at Orderly Room Hearings or to the implications of decisions taken at Orderly Room Hearings, notably downgrades or relocations. I should advise the Committee that the Commission s most complex and time-consuming investigations fall into this category. I would suggest to the Committee that legal advice is sought to confirm that the SPSO would not be excluded under current legislation from considering such disciplinary-related complaints. Schedule 4 (8) of the Scottish Public Services Ombudsman Act 2002 states that the SPSO is excluded from considering complaints relating to appointments or removals, pay, discipline, superannuation or other personnel matters. It would seem important for the Committee to clarify whether or not complaints relating to discipline within prisons were covered by this exclusion. 3
It is accepted that any system for adjudicating prisoner complaints must be compliant with the European Convention of Human Rights (ECHR). However, the extent to which Article 6 of the ECHR applies to Scottish prisons, especially in relation to disciplinary decisions, is not entirely clear because the issue has not come before the Scottish courts. In relation to prisoners in England, the Court of Appeal (Tangney v Governor of Elmsley Prison [2005]) held that Article 6 was not engaged but it was accepted, by reference to the Strasbourg cases of Engel v Netherlands and Ezeh/Connors v UK (39665/98, 40086/98), that Article 6 may be engaged by prison disciplinary decisions. The Committee should note that if it were ever decided that Article 6 of the ECHR applied to a meaningful extent to disciplinary decisions taken in Scottish prisons, it could possibly move the consideration of this significant minority of prisoner complaints away from the traditional remit of an Ombudsman, such as the SPSO. The SPS is updating the Prisons and Young Offenders Institutions (Scotland) Rules. One of the matters they are due to consider is the extent to which the disciplinary process at contracted-out prisons (HMP Kilmarnock and HMP Addiewell) are different from those at prisons directly managed by the Scottish Prison Service. I think there would be practical advantages if this difference was resolved before jurisdiction transferred to the SPSO. The second area of complexity relates to the investigation of complaints relating to the use of intelligence by the SPS. The monitoring of SPS conformance to the Regulation of Investigatory Powers (Scotland) Act 2000 rests with the Surveillance Commissioners. The Commission has no power to require evidence from the Surveillance Commissioners or to make recommendations to the Surveillance Commissioners. The Commission has therefore no authority to investigate matters relating to the collection and management of intelligence and must limit its investigations to the use of intelligence by the SPS. In order to manage these jurisdictional complexities, the Commission has recently agreed a protocol with the SPS under which they self-certify their conformance to the Regulation of Investigatory Powers (Scotland) Act 2000 and their own Intelligence Management Framework. This protocol will not be binding on the SPSO and will need to be reconsidered. The Committee should also note that the Surveillance Commissioners are not under the jurisdiction of the SPSO. Conclusion: The Fit-for-purpose Complaints System Action Group recommended that the Scottish Government and Parliament consider transferring the functions of the Scottish Prisons Complaints Commission to the SPSO. They could see no rationale for maintaining a parallel process of external review and argued that centralisation of the function would also make the consumer experience more consistent, as well as offering complaints handling employees better career development opportunities than are available within smaller organisations. They noted that, in respect of prison complaints, retaining the ability to react rapidly to complaints is vital, and it should be possible to do so from within the SPSO. If 4
legislation was being used to effect change, then an opportunity should be taken to put the prison complaints procedures into statute, where required. A statutory basis would provide the same level of independence and assurance for consumers as in other regimes such as police complaints. In broad terms, I accept that there would be advantages in the functions of the Commission transferring to the SPSO but, I would slightly down-play the Fit-forpurpose Complaints System Action Group suggestion that those advantages would be around responsiveness and consumer experience. I would argue that a better justification would be that the SPSO has greater resources (capacity) and more investigative expertise (capability). It also has existing jurisdiction over related agencies such as the Parole Board for Scotland, Reliance and the Scottish Government, which is important in terms of consistency and in pursuing multi-agency investigations. I believe the Committee can be confident that the SPSO could effectively absorb complaints from prisoners against the SPS relating to maladministration and service failure. The SPSO may require some additional resources, both investigative and managerial, in order to successfully taken on this extension of remit but, I think the option sponsored by the Scottish Government is sensible, robust and efficient. Richard Smith Interim Scottish Prisons Complaints Commissioner 18 December 2008 5