The Claimant is a prisoner subject to a determinate sentence . Stuart Withers succeeds in quashing a decision of the Parole Board

Tue, 04 Aug 2020

In R(Grinham) v the Parole Board of England & Wales and the Secretary of State for Justice [2020] EWHC 2140 (Admin) the High Court quashed a decision of the Parole Board where it found that a prisoner’s oral hearing and a subsequent decision, refusing his release, had been marred by procedural unfairness.

The decision is important as it cites a number of key authorities in relation to procedural unfairness and how they apply to proceedings before the Parole Board.

Facts:

The Claimant is a prisoner subject to a determinate sentence. He was recalled to custody and his case was referred to the Parole Board who granted an oral hearing to consider his re-release. Shortly after this the Claimant was diagnosed with cancer. An application to expedite his oral hearing was granted and his oral hearing was listed for February 2020.

The judgment identifies a number of failings in relation to (i) the preparation of the hearing by the Parole Board (ii) the conduct of the hearing by the Panel Chair and (iii) the service of late reports after the hearing and (iv) the decision.

There were a number of failings to comply with the service of reports before the hearing, which meant that the Claimant’s solicitor was unable to take proper instructions until the morning of the hearing.

Upon arriving to the hearing, the Claimant’s solicitor was informed by the Panel Chair that she only had limited time to hear the case. This again compounded the difficulty with being served with a lengthy late report. Witnesses and the Claimant gave their evidence at some haste at the hearing, with the Panel Chair reminding the witnesses over their limited availability. After the hearing a key report was served, which should have been served well before the hearing took place.

The issue for the High Court was whether there had been procedural unfairness in the Claimant’s case.

Mr Justice Spencer held that “there were plainly serious failings in the preparation of the case for the oral hearing which resulted in real difficulty for the claimant and his solicitor on the day of the hearing. I am troubled by those failings and their impact on the fairness of the hearing”.

In summary he found that the following individual failings led to an unfair hearing:

• There was a failure to comply with directions to serve reports before the hearing.
• There was insufficient time before the hearing for the Claimant’s solicitor to take instructions on the late served reports.
• The Panel Chair had limited time to hear the case and this resulted in an unreasonable pressure of time which impacted the evidence received at the hearing.
• The limited amount of time available had a prejudicial effect on the Claimant giving evidence.
• The Claimant’s solicitor had been unable to challenge witnesses as extensively as she would have liked due to the time constraints. Materially this meant that the Claimant’s licence conditions were not able to be fully explored with the Claimant’s Offender Manager.
• The late service of a report after the oral hearing had concluded, meant that the Claimant’s solicitor did not have the opportunity to allay the Panel Chair, by way of oral submissions, of any concerns in relation to it.

After his Lordship identified several failings of procedural unfairness he concluded that but for the procedural unfairness, it was entirely possible that the outcome could have been different and the Claimant’s case was “a classic case of the need for justice not only to be done but to be seen to be done”.

As a result, the Parole Board’s decision was quashed and the High Court directed that an expedited re-hearing must take place by September 2020.

Commentary

This is an important judgment relating to how the Parole Board should conduct oral hearings fairly, and the need for the Parole Board to actively manage cases to ensure that directions are complied with. Prison law practitioners are all too often faced with lengthy reports being served on the day of a hearing with inadequate time to consider them or to take instructions. Procedural fairness therefore requires that the Board actively make sure that deadlines to serve reports are met, so that hearings can be effective.

Key to this case was the Panel Chair’s narrow availability to hear the case which meant the hearing was unduly rushed. Whilst most panels are willing to sit later in order to hear a prisoner’s case this was not done on this occasion. The result was that an expedited oral hearing, on the grounds of the Claimant’s own ill health, was unduly rushed. This prejudiced the ability of the Claimant to present his case fully through his solicitor.

Additionally, the judgment is critical of the inability to make oral submissions and to engage frankly with the Panel Chair on topics of concern to them. If crucial reports are not served until after a hearing, it is suggested that panels should be mindful of whether procedural fairness requires a further oral hearing, to allow a prisoner to present their case and allay the panel of any concerns. It is clear from this case that written submissions, which are commonly provided after hearings, will not always be suitable, especially where evidence has been provided after a hearing that remains untested.

Stuart Withers was instructed in this case by Alizeh Khan from Dobsons Law.

Stuart Withers , N05 FIVE BARRISTER CHAMBERS 

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A chaotic cycle of abuse and crime’: The truth behind prescription drugs and prisons

The picture we have of the prison estate’s drug epidemic is far from complete and, crucially, overlooks the policy of prescribing and dispensing synthetically-produced opiates for addicted inmates

The prison estate is in crisis. That much we know. Rampant violence, officer corruption, riots, murder, suicide, record-high levels of self-harm and assaults. These are the norms of life for those on the inside.

At the heart of this “appalling” system, as described by a justice committee of MPs late last year, is an explosion in drug abuse. Much has been made of psychoactive substances such as “spice” and the damage they are inflicting behind bars. Tales of addicted inmates reduced to zombie-like states, prone to sudden outbursts of violence, regularly make the headlines – with authorities helpless to take effective action.

But the picture we have of the estate’s drug epidemic is far from complete and, crucially, overlooks the role of medical prescriptions – provided by prison doctors and part-funded by the taxpayers’ money – which, like spice and other “legal highs”, are contributing to what the Forward Trust has described as a “chaotic cycle of abuse and crime”.

As authorities attempt to tackle rising abuse rates – the number of inmates addicted to illicit substances has more than doubled in five years – concerns are now being raised of the prison estate’s policy of prescribing and dispensing synthetically-produced opiates, such as methadone and buprenorphine, in a bid to tackle prisoner addiction.

Prison officers, former inmates and charity workers within the sector have all told The Independent that the existing system is flawed, heightening the likelihood of recidivism and death by overdose while fuelling a dangerous drug economy inside prisons.

Under the current policy set by the Department of Health and Social Care (DHSC), inmates with drug addictions are typically placed on a prescription programme of substitute medication and sent to a prison’s drug wing.

If a prisoner is serving a sentence longer than six months, treatment services are encouraged to reduce their dose gradually and work towards abstinence. If an inmate has been sentenced for less six months, the guidance is to keep them on a substitute prescription, and continue it when they return to the community.

Such an approach is underpinned by “sound health rationale” and holds the potential to “save lives”, but putting policy into practice has proven virtually impossible within the unstable conditions of the prison estate, says Mike Trace, chief executive of the Forward Trust and former deputy drugs tsar to Tony Blair.

“The strategy is undermined by too many prisoners not complying with the treatment – selling on the drugs prescribed to them, and continuing to use a cocktail of drugs from the black market,” he tells The Independent.

“Very few prisoners are given the opportunity to break out of the cycle of drugs, crime and re-imprisonment.”

In reality, only a small proportion of prisoners receiving substitute drugs follow the desired route of stabilisation, a source with inside knowledge of the DHSC’s policy said.

Prisoners serving short-term sentences, typically between six and 12 months, are most at risk, according to Steven*, a veteran prison officer at HMP Long Lartin who has served 24 years on the frontline. Rather than easing these inmates towards abstinence, he says, prisons will typically up their dosages in the weeks prior to release and, in doing so, “maintain” their drugs habits – “free of charge”.

“You’ve got prisoners who come in who are heroin addicts, and rather than try to wean them off this stuff we just maintain their habit until they go out,” he tells The Independent.

“They might come in off the streets and they’ll have a heroin addiction. So, what do they do, they come in and they’ll be put on 150ml of methadone, they’ll keep them on that. So they’ll go from 150ml, over six months it’ll be 100ml, then nine months it’ll be 75ml, then they’ll be thinking ‘oh God, he’s due out in three months’ time’ then they start retoxing.

“They start upping the levels again to what they were on when they came in, purely because they don’t want them to go out and OD. So all we’ve done is maintained his drug habit, free of charge, and then put them back out to maintain their drug habit, to then come in again.

“We spend more on that side of things, for Subutex [buprenorphine] and morphine, than any other sort of drug in the prison service. We spend millions on it to maintain prisoners’ habits.”

Freedom of information requests carried out by The Independent have revealed that from a sample of 16 prisons, 13 of these have seen a rise in prescription rates or spending on drug substitutes over the past five years.

HMP Nottingham, a category B prison with an operational capacity of 1060, witnessed one of the most marked increases during this period. Between 2014 and 2018, the number of prisoners prescribed methadone more than doubled, rising from 429 to 948.

Elsewhere, at the likes of HMP Belmarsh, HMP Birmingham and HMP Hindley, expenditure on methadone and buprenorphine has more than doubled or tripled in recent years.

Officials say that opiate substitutes are also being used as a “currency”, with doctors, nurses, prison officers and inmates caught in a “constant game of cat and mouse” as the latter attempt to sell their prescribed drugs to other prisoners. This leads to the formation of a black market behind bars.

“When you’ve got drugs like that, Subutex and methadone, they all trade with each other,” says Mark Fairhurst, the national chairman of The Professional Trades Union for Prison, Correctional and Secure Psychiatric Workers, which has 37,500 members across the UK.

“So what I’ll do is put a cotton wool bud in my mouth, take the methadone which will suck up in the cotton wool, take it out my mouth, ring it out in a little cup for you and you give me your canteen or whatever. It’s unbelievable.”

Frances Crook, chief executive of the Howard League for Penal Reform, has warned that the current system is only getting worse. “Inside, there has been an increase of people dying from drug overdoses and cocktails of illegal and prescribed drugs,” she says. Outside of prison, “it appears that the majority of people who die from drug overdoses in the community have recently been released.”

Nonetheless, the Ministry of Justice is “confident” of turning this crisis around. It has committed an extra £70m to fighting drugs, increasing security and improving decency, and believes the right steps are now being taken to create “a safer environment” inside the country’s prisons.

The Independent also understands that new “drug lockers” are set to be trialled in some prisons to combat the issues that come with the prescription of medication. Typically, inmates will pick up their daily or weekly doses from the prison drug hatch, at a regular time known to all. This allows dealers to identify, coerce or rob these individuals, sparking violence and further fuelling a prison’s drug economy.

However, under the new initiative, lockers will be installed with biometric data that means prisoners can access their medication at any time of the day or week with one touch of a button. A source with knowledge of the scheme said the approach could help limit the flow of drugs inside prisons.

For now, though, optimism continues to run low in the estate. For one former prisoner, who now works in reform and rehabilitation, authorities need to stop passing the buck and develop an approach that actually helps inmates combat their addictions.

The policy of retoxing a prisoner if they’re not clean before release carries risks, he says. “They’ll up the dosage again so he can go back into society as then they’re not an issue of the prison anymore – they’re now an issue of the probation service.

“We’ve not created a solution, you’ve just moved the problem to someone else.”

*Names have been changed to protect identity

Prison and probation chief Michael Spurr lett in March and is replaced amid epidemic of violence and self-harm in jails

It comes after inspectors found conditions in prisons across England and Wales to be the “worse they had ever seen” as authorities failed to take action over high levels of violence, self-harm ,drug use and deaths. We only must look at the huge death toll of the same group of prisoners sentenced to an IPP. 

i am laughing at the fact that  David Gauke said: “I am extremely grateful to Michael Spurr for his leadership of HMPPS? And on discipline in the prison estate? for  rehabilitating offenders? “He is an example of the very best of public service and civil service leadership. I look forward to continuing to work closely with Michael into the new year.”

Blame each other

Labour’s shadow justice secretary Richard Burgon said resolving the problems in UK jails would require more radical reform, stating: “The unprecedented crisis in our prisons is a direct result of the Conservatives’ decision to slash budgets and staffing levels.

“If the government really wants to put an end to this crisis then it needs to overhaul its policies. It should start with a "national emergency plan" and new treasury funds to end overcrowding and understaffing across the prison estate.” 

In a sign of discontent among staff in the sector, prison officers launched a protest last week after the government was issued an official warning over the deteriorating jails for the fourth time in nine months.

But the action was called off within hours following an agreement between the Prison Officers’ Association (POA) and prisons minister Rory Stewart.

The urgent notification issued by the HM Chief Inspector of Prisons Peter Clarke over Birmingham jail last month – the first to be issued to a privately-run jail – warned that it had “slipped into crisis” following a “dramatic deterioration”.

Subsequent attempts by the government to improve the state of the jail by removing hundreds of prisoners and transferring in more officers were criticised, with campaigners warning that this would “heap more pressure” onto other struggling jails.

Earlier this year, Mr Clarke said “repeated patterns of failure” had led to a point where staff are inured to conditions that have “no place in an advanced nation in the 21st century”.

Violence, drug use , self-harm  and deaths all remain issues, with assaults and self-harm having reached a record high in the past year, his annual report found.

 Failure' by government is repeated

 AN ARTICLE  POSTDATE 2 YEARS 

Prison conditions ‘most disturbing ever seen’ with staff now accustomed to jails not fit for 21st century, watchdog says

Conditions in jails deteriorate to 'totally unacceptable' levels and assaults and self-harm hit record levels as prisons show 'repeated patterns of failure', says prison inspector. 

 Prisoners in England and Wales are enduring the “most disturbing conditions ever seen” as authorities fail to take action to curb soaring levels of violence and self-harm in jails, the chief inspector of prisons has warned in a damning new report.

“Repeated patterns of failure” have led to a point where staff are inured to conditions that have “no place in an advanced nation in the 21st century”, Peter Clarke warned.

Violence, drug use and self-harm all remain issues, with assaults and self-harm having reached a record high in the past year, the report states.

This is despite Mr Clarke’s call for ministers to address the issues as a “matter of urgency” in his annual report a year ago.Politicians and campaigners warned that the prison system had reached the point of “emergency” and said the chief inspector’s warnings of rapid deterioration in jails must not be allowed to “fall on deaf ears”.

Speaking at the report’s launch, Mr Clarke said: “I realise that in recent years many prisons, short of staff and investment, have struggled to maintain even basic standards of safety and decency. Some prisons, in very difficult circumstances, have made valiant efforts to improve.

“Others, sadly, have failed to tackle the basic problems of violence, drugs and disgraceful living conditions that have beset so many jails in recent years. I have seen instances where both staff and prisoners alike seem to have become inured to conditions that should not be accepted in 21st century Britain.”

There was an “obvious” correlation between the significant increase in violence across the prison estate over the past five years and the large reductions in staff numbers and resources that has taken effect, he said.

The report found that levels of violence had continued to increase in prisons, with assaults hitting record highs last year and continuing to become less safe.Self-harm among inmates also hit the highest levels on record, with the number of reported incidents rising from 40,161 in 2016 to 44,651 in 2017 – an increase of 11 per cent.

Mr Clarke welcomed a gradual decline in self-inflicted deaths, which peaked in 2016, but said there were still repeated patterns of failure in far too many cases.

He said he was particularly concerned at the failure by staff to carry out “basic operation procedures” such as responding promptly to cell call bells.

“Whether this is a cultural or leadership issue, it needs to be looked at carefully,” he said. “There is a clear link between cell call bells and self-harm, and in the worst cases suicide.”The report also described a “totally unacceptable” situation in which many thousands of prisoners find themselves forced to share cells designed to hold only one prisoner.

These were used as their “bedroom, dining room and lavatory” despite inadequately screened, dirty toilets without lids, it stated.

“How is it that in a prison, which is one place there is no shortage of labour to clean places up, can become so unhygienic?” Mr Clarke asked.

“The conditions are so terrible that staff seem to have lost the ability to recognise them as being good or being bad – it’s just become the norm.”

Despite the government’s ambition to improve training and education by getting inmates out of cells, many prisoners remain locked up in them for up to 22 hours a day.

One in five prisoners told inspectors they were out of their cells for less than two hours a day, while just 16 per cent were unlocked for more than 10 hours.

The report also highlighted the ready availability of drugs in too many prisons, with 13 per cent of prisoners acquiring a drug habit while they were detained. Mr Clarke said this was “shockingly high”.

Too many prisons still lack a comprehensive strategy to reduce drug supply, with modern technology to detect and deter drugs – which has been proven to be effective – being introduced too slowly, the report stated.

Responding to the report, the shadow justice secretary, Richard Burgon, said: “The crisis in our prisons has now become an emergency – as Labour has long warned it would. The Tories’ ideological decision to axe thousands of prison officers and slash prison budgets is to blame for this unprecedented failure.

“The government must now take responsibility for some of the worst prison conditions that Inspectors have ever seen. Instead of tinkering around at the edges, the government needs to outline an emergency plan and new funds to make our prisons safe and humane.”

Andrew Neilson, director of campaigns at the Howard League for Penal Reform, said no public service in England and Wales had deteriorated as “rapidly and as profoundly” in recent years as the prison system.

“This excoriating report is yet another reminder of the scale of the chaos in overcrowded and under-resourced jails that are failing everyone,” he said. “The chief inspector’s warnings must not be allowed to fall on deaf ears, and what matters now is how the government responds.”

He added: “The prison population is falling, and ministers have rightly indicated that they want to see fewer short prison sentences being imposed. Scrapping plans to build more prisons for women is another step in the right direction. But the corner will not be turned unless ministers take further action to reduce demand on the system, protect staff and save lives. Building more prisons for men will only lead to more prisoners, more problems and more crime.”

Peter Dawson, director of the Prison Reform Trust, echoed the comments.

“The findings of this report put Britain to shame,” he said. “We should not tolerate a situation in a civilised society where thousands of prisoners are forced to share cells designed for one, eating their meals next to an unscreened toilet; where violence and self-harm have risen exponentially; and where a fifth of prisoners spend less than two hours a day out of their cell.”

The report comes after the justice secretary David Gauke announced a £30m “improvement package” aimed at bringing jails “back up to standards” – which campaigners welcomed but said fell short of tackling problems facing the prison system.

Deborah Coles, Director of charity Inquest said it was "deplorable" that in more than 90 per cent of men’s prisons the inspectorate found issues with self-harm and suicide management, which she said was reflective of the continually high death toll.

"These dangers are compounded by the systemic failure to act on recommendations made by coroners, inspections and monitoring bodies to prevent future deaths. If such complacency and neglect was found in any other setting, the institution would be shut down," she said.

"Until there is a dramatic reduction in the use of prison, a redirection of resources into community alternatives, as well as a clear and enforceable system of accountability which protects prisoners, then needless deaths and harms will continue.”

Michael Spurr, chief executive of Her Majesty’s Prison and Probation Service, conceded that prisons had had a “challenging twelve months” and said while the inspectors had recognised “particularly acute problems” in a number of prisons, he was pleased that they had also recognised progress and good outcomes in others.

“Our new scrutiny and assurance unit is helping to ensure that good practice is shared among prisons and that recommendations from inspectors are acted upon,” he added. “Many challenges remain in the coming year but the increased funding for frontline operations and investment in the estate will help us to better tackle issues such as drugs and poor living conditions.

“We have a robust and coherent strategy to drive up standards and I’m confident that we will make significant progress over the next 12 months. 

OCTOBER 2020 AND WHAT CHANGED!   Belmarsh murder: Man found beaten  to death at prison in London

"The Ministry of Justice says prison officers are trained to report suspicious behaviour, but a union called the training “completely inadequate”

Police have launched a murder investigation after a prisoner was found beaten to death at HMP Belmarsh.

The 36-year-old man was found with head injuries at the jail in south London on Tuesday night.

He died in hospital on Wednesday evening and detectives await a postmortem to establish the cause.

Two other inmates, both aged 28, were arrested at the scene on suspicion of attempted murder and remanded in custody.

“We are working to establish the circumstances surrounding this incident with the support of [private security firm] SERCO and local officers,” said Detective Chief Inspector Richard Leonard. 

“At this stage I am open minded concerning motive, but expect this to become clear as the investigation progresses.”

“An investigation has been launched following the suspicious death of a prisoner inmate at HMP Belmarsh,” the force said.

“Police were called at 20:00hrs on Tuesday, 18 February to reports of an assault within the prison facility.

“Officers and the London Ambulance Service attended the location where a 36-year-old man was found with head injuries.

“The injured man was taken to hospital in a critical condition where he later died on the evening of Wednesday, 19 February. His next of kin are aware.

“A post-mortem examination will take place in due course.”

 

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