Complaints and legal proceedings
How to Make a Complaint
Within prison, complaints may be made in person or in writing to a governor or to the Independent Monitoring Board (IMB). A governor must be available each day to hear complaints. Prison Service Order (PSO) 2510 contains detailed guidance on the complaints scheme. It states that complaint forms will be freely available for prisoners to pick up on the wing and when completed posted into a locked box to which a designated officer has sole access. This is intended to resolve the common problem of prisoners being refused complaint forms. The response to a complaint (except on reserved subjects – see below), is in three stages. The forms that have to be used are:
Some issues, called reserved subjects, may only be dealt with by Prison Service headquarters. These include adjudications (see below), transfer to or removal from mother and baby units, Category A status, life sentence prisoners’ transfers and deportation. Parole matters will be dealt with by the Release and Recall Section at NOMS. Complaints on these issues will be dealt with by the relevant department and should also be replied to within six weeks. The booklet How to Make a Request or Complaint: Information for Prisoners, which details the procedures, should be available in prison libraries.
The time limit for lodging a complaint is 3 months from the date of the incident.
The Ombudsman
The Ombudsman can investigate complaints only when the internal complaints system has been exhausted. A complaint must be sent within one month of the final decision made by the prison or the relevant Prison Service department. The complaint should normally be made by the prisoner or with the prisoner’s signed authority, but the Ombudsman will usually accept complaints made by solicitors on behalf of their clients.
The Ombudsman will normally take around twelve weeks to investigate the matter and will then issue a report either upholding or rejecting the complaint. If it is upheld, recommendations will be made to the Director General of the Prison Service about the individual case and any general issues that it raises. The Ombudsman cannot investigate decisions made by the Parole Board, decisions made personally by Ministers or clinical judgments made by medical staff.
It is also possible to raise complaints with any outside organisation or person, for example, an MP, the Parliamentary Commissioner for Administration, the European Parliament, the ECtHR or the police. Petitions may also be made to the Queen and Parliament.
Legal Proceedings in Court
Prisoners have the absolute right to commence legal proceedings in the courts either in person or through a solicitor. Prisoners can conduct:
The Race Relations (Amendment) Act 2000 applies to prisons, and discrimination, for example, in the allocation of jobs, would be actionable in the courts. The High Court will intervene by way of judicial review only when it can be shown that a decision has been taken which is wrong in law, for example, where the prison authorities had no power to do what they did, or the decision was flawed by procedural unfairness. A breach of the Prison Rules does not automatically give a prisoner grounds to sue the prison authorities to obtain compensation for their failure to comply with the Rules. In such cases, the prisoner will need to establish some form of loss or damage resulting from the breach of the Rules.
Right to be Present at Court
A prisoner acting without a solicitor who wishes to be produced at court to present a case in person must apply to the prison governor by completing the relevant request form. This includes a requirement that the prisoner undertakes to pay the costs of the production. These costs should be limited to production from the prison nearest to the court and the level at which they are set should have regard to what is realistic for a prisoner to pay. The courts have recognised that there may be an appearance of bias if the Home Office refused to produce at court a prisoner who was unable or who had refused to give an undertaking as to costs in an action when the Home Office is the defendant to the action. Any refusal to produce a prisoner, particularly when the action is against the Home Office, or now the Ministry of Justice, may be in breach of Article 6 of the Convention, the right to a fair trial. Increasingly, the courts are using video links with prisons to hear cases where prisoners are not represented.
Access to Lawyers
Prisoners have an absolute right to have visits from and to correspond with their solicitors. It is not necessary to tell the prison authorities why contact with a solicitor is needed, nor is it necessary to make any complaint about prison treatment to the authorities before contacting a solicitor for legal advice. This right was first recognised by the ECtHR and any attempts to interfere with such access are closely scrutinised by the courts. This right is seen as part of the overall right of access to the courts and so it also includes preserving the confidentiality of any legally privileged material held by prisoners in their possession in prison.
Within prison, complaints may be made in person or in writing to a governor or to the Independent Monitoring Board (IMB). A governor must be available each day to hear complaints. Prison Service Order (PSO) 2510 contains detailed guidance on the complaints scheme. It states that complaint forms will be freely available for prisoners to pick up on the wing and when completed posted into a locked box to which a designated officer has sole access. This is intended to resolve the common problem of prisoners being refused complaint forms. The response to a complaint (except on reserved subjects – see below), is in three stages. The forms that have to be used are:
- COMP 1 for the first stage (to be answered at prison officer level)
- COMP 1A for stages 2 and 3 (to a senior officer and the Governor respectively)
- COMP 2 is for confidential access complaints (where because of the nature of the complaint the prisoner wishes to raise the issue directly with the Governor or Area Manager)
Some issues, called reserved subjects, may only be dealt with by Prison Service headquarters. These include adjudications (see below), transfer to or removal from mother and baby units, Category A status, life sentence prisoners’ transfers and deportation. Parole matters will be dealt with by the Release and Recall Section at NOMS. Complaints on these issues will be dealt with by the relevant department and should also be replied to within six weeks. The booklet How to Make a Request or Complaint: Information for Prisoners, which details the procedures, should be available in prison libraries.
The time limit for lodging a complaint is 3 months from the date of the incident.
The Ombudsman
The Ombudsman can investigate complaints only when the internal complaints system has been exhausted. A complaint must be sent within one month of the final decision made by the prison or the relevant Prison Service department. The complaint should normally be made by the prisoner or with the prisoner’s signed authority, but the Ombudsman will usually accept complaints made by solicitors on behalf of their clients.
The Ombudsman will normally take around twelve weeks to investigate the matter and will then issue a report either upholding or rejecting the complaint. If it is upheld, recommendations will be made to the Director General of the Prison Service about the individual case and any general issues that it raises. The Ombudsman cannot investigate decisions made by the Parole Board, decisions made personally by Ministers or clinical judgments made by medical staff.
It is also possible to raise complaints with any outside organisation or person, for example, an MP, the Parliamentary Commissioner for Administration, the European Parliament, the ECtHR or the police. Petitions may also be made to the Queen and Parliament.
Legal Proceedings in Court
Prisoners have the absolute right to commence legal proceedings in the courts either in person or through a solicitor. Prisoners can conduct:
- Normal civil proceedings such as divorce or breach of contract.
- Cases where the prisoner is suing the prison authorities, for example, for assault or medical negligence.
- Judicial review in the High Court of an administrative or disciplinary decision that affects him or her.
The Race Relations (Amendment) Act 2000 applies to prisons, and discrimination, for example, in the allocation of jobs, would be actionable in the courts. The High Court will intervene by way of judicial review only when it can be shown that a decision has been taken which is wrong in law, for example, where the prison authorities had no power to do what they did, or the decision was flawed by procedural unfairness. A breach of the Prison Rules does not automatically give a prisoner grounds to sue the prison authorities to obtain compensation for their failure to comply with the Rules. In such cases, the prisoner will need to establish some form of loss or damage resulting from the breach of the Rules.
Right to be Present at Court
A prisoner acting without a solicitor who wishes to be produced at court to present a case in person must apply to the prison governor by completing the relevant request form. This includes a requirement that the prisoner undertakes to pay the costs of the production. These costs should be limited to production from the prison nearest to the court and the level at which they are set should have regard to what is realistic for a prisoner to pay. The courts have recognised that there may be an appearance of bias if the Home Office refused to produce at court a prisoner who was unable or who had refused to give an undertaking as to costs in an action when the Home Office is the defendant to the action. Any refusal to produce a prisoner, particularly when the action is against the Home Office, or now the Ministry of Justice, may be in breach of Article 6 of the Convention, the right to a fair trial. Increasingly, the courts are using video links with prisons to hear cases where prisoners are not represented.
Access to Lawyers
Prisoners have an absolute right to have visits from and to correspond with their solicitors. It is not necessary to tell the prison authorities why contact with a solicitor is needed, nor is it necessary to make any complaint about prison treatment to the authorities before contacting a solicitor for legal advice. This right was first recognised by the ECtHR and any attempts to interfere with such access are closely scrutinised by the courts. This right is seen as part of the overall right of access to the courts and so it also includes preserving the confidentiality of any legally privileged material held by prisoners in their possession in prison.
