England and Wales

1. National context

According to the latest figures (18 December 2015), there are 85, 847 people in prisons and young offender institutions in England and Wales. The female prison population is 3, 919 and the child custody population amounts to 1, 000.[1] The most recent set of Ministry of Justice statistics shows that 11, 785 men, women and children are held on remand prison, 6, 279 people are serving short sentences, 4, 614 people are still held on the now abolished Indeterminate Sentence for Public Protection (ISPP), of whom 3, 532 (77 per cent) have passed their tariff expiry date.

At the end of December 2014, 83 of the 119 prisons in England and Wales were classified as overcrowded. Kennet, Leeds, Wandworth, Swansea and Exeter are the most overcrowded prisons with the following percentages: 181%, 174%, 167%, 163%, 161%.[2] In the light of the Howard League for Penal Reform prison watch (16 March 2016), the percentages of Certified Normal Accommodation (CNA) are basically the same for the above-mentioned prisons, respectively: 183%, 168%, 166 %, 168 %, 165 %[3]. The latest population Bulletin from the UK government (18 December 2015) shows identical figures[4].

In England and Wales, there are a number of different categories of prisons: local prisons, Category B training prisons, Category C training prisons, Open prisons, High security prisons, Young Offender Institutions and Women’s prisons. The Prison Officers’ Association suggested in 2015 that capacity problems in some parts of the estate could result in a situation where prisoners could be held in prison accommodation of a category that was not appropriate to their risk.[5]

Both the Prison Officers’ Association and the Prison Governors’ Association expressed concerns that the Government had no plans to decrease levels of crowding. Greater overcrowding is accepted as a de facto policy.

An increase in the use of indeterminate sentences and the overuse of long determinate sentences are key factors in the doubling of prison numbers in the past two decades. The prison system in England and Wales has one of the highest incarceration levels in Europe, standing at 149 per 100, 000 people.[6]

Currently, there are 58 whole tariff order prisoners, of whom nobody had access to compassionate release (i.e. those who have no chance of parole). Additionally, England and Wales has more people in prison sentenced to life imprisonment (those with and without a chance of parole) than all the other 46 countries in Europe combined. More than 30, 000 adult men are serving more than four years.[7]

According to the data provided by Andrew Selous, the Minister for Prisons, Probation, Rehabilitation and Sentencing in an answer to a Written Question tabled on 26 June 2015 by the shadow Minister Andrew Slaughter, 132. 321 additional days were imposed on inmates in public prisons and 27.176 on detainees in private prisons. The Howard League for Penal Reform Report edited in 14 December 2015 reveals that the number of adjudications where extra days could be imposed has increased by 47 per cent since 2010[8].

In the first six months of 2015, there were 123 deaths in custody: 70 people died of natural causes; 43 deaths self-inflicted; 5 homicides; 5 deaths are yet to be classified.[9] According to the last report of the Chief Inspector of Prisons, there were 228 deaths in male prisons in England and Wales in 2014-15, namely a 4% increase from the previous year. These included: 74 self-inflicted deaths; 136 deaths from natural causes (up from 126 in 2013–14); four apparent homicides (up from three in 2013-14); 14 other deaths, 10 of which were yet to be classified.[10] The death rate in custody has become a national scandal.

Although the relevant role of the judiciary in the prison law, judicial review is not accessible to most prisoners. Nonetheless the effectiveness of the legal aid is often linked to the possibility to access to public funding, accessing which can be difficult.

Another critical issue concerns the imposition of additional days through the process of independent adjudication. The imposition of additional days is very expensive and counterproductive and paradoxically, many of the breaches of discipline result from the detrimental conditions of detention, namely the increasing overcrowding and the front-staff cuts. In spite of the formal strengthening of the guarantees and the formal provision relating the pivotal role of the district judges, most adjudications are carried out by a prison governor before whom there is no really right to legal representation, except in very limited circumstances.[11]

Problems are going to solve were the rate of IPP and of indeterminate and life sentence.

1.1 The critical issues regarding sentencing and imprisonment in the light of the ECtHR case-law

Despite the high overcrowding rate, the ECtHR case-law against United Kingdom regarding the violation of Article 3 of the European Convention does not directly concern this issue.

Under the ECHR Article 3, the most critical issue deals with the enforcement of the whole tariff order in a Convention compliance manner, namely including the effective access to release. The legal source of the complaint procedure, the section 30 of the Crime (Sentences) Act 1997, was applied in a very restrictive way, as held by the ECtHR in Vinter[12], because of its lack of clarity. The effectiveness of the access to the remedy of the release in case of whole tariff order is the main issue of the Hutchison case which is now pending before the Grand Chamber.[13] The United Kingdom is still in violation of the ECHR Article 3 and the domestic Court do not deal with this problem. As matter of fact, a critical issue concerns the scope of the judicial scrutiny carried out by the national Courts in applications for the judicial review of the negative decisions by the Secretary of State in relation to the release of whole life prisoners. In theory, the Courts can order to the Secretary of State the release of the whole life prisoner if the whole life sentence is no longer justified on legitimate penological grounds, but it is not the real set-up of the English and Welsh Courts.[14]

Another critical issue under scrutiny in the case-law relating to the United Kingdom concerns the high rate of the death in custody and the effectiveness of the inquests and other investigative procedures regarding the fatal events. The McDonnel case involved the persisting lack of the ECHR Article 2-complaint investigations of deaths in custody.[15]

Disenfranchisement of prisoners in the UK remains an issue to be faced, as the Government continues to delay removal of the blanket ban on prisoner voting and is reluctant to take remedial measures enforcing the pilot-judgement (Greens and M.T[16]). Nonetheless, in two recent judgments in August 2014 and February 2015 (Firth and others v The United Kingdom[17] and McHugh and others v The United Kingdom[18]) relating to a large number of outstanding claims by prisoners, the European Court of Human Rights noted the continuing violation of Article 3 to Protocol No. 1 to the Convention, but did not award the applicants any compensation or legal expenses.

1.2 The UK’s ‘National Preventive Mechanism’ from OPCAT

In September and October 2012 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) made two official visits to the UK and its reports on both visits were published in 2014. The report on the September 2012 visit, published after considerable delay in March 2014, set out a number of recommendations in relation to the CPT’s examination of the situation of female prisoners (Cornton Vale, Edinburgh and Greenock Prisons) and adult males on remand (Barlinnie and Kilmarnock Prisons). The CPT looked into the treatment and conditions of detention in several police stations and visited a mediumsecure psychiatric clinic, also in Scotland. In England, the Committee examined issues relating to persons held under immigration legislation and visited two immigration removal centres (IRCs), Brook House and Colnbrook. The CPT’s report on its October 2012 ad hoc visit, which involved the presence of a CPT delegation on a chartered immigration removal flight between London and Colombo (Sri Lanka), was broadly positive about the preparation for removal process, it observed the efforts to conduct it in a humane way. The CPT made recommendations regarding the accreditation and implementation of a revised training package for escort staff, the presence of interpreters during escort flights and the need to include psychological assessments in the recruitment of escort staff[19].

The OPCAT Article 19 provides for three fundamental NPM powers namely the power to examine the treatment of those deprived of liberty, to make recommendations with the aim of improving their treatment and conditions and to submit comments on existing or draft legislation. The UK ratified the Optional Protocol to the UN Convention Against Torture in December 2003. The British situation was different from the others States-Parties, as a matter of fact there were already a number of well-established individual bodies with statutory independent inspection, monitoring or visiting powers and so, rather than dismantle existing structures and create a new body, in March 2009 the UK designated 18 existing bodies as its NPM and gave HM Inspectorate of Prisons in England and Wales responsibility for coordinating their NPM activities[20]. On 3 December 2013, three new members were designated to the NPM, reflecting the merger of bodies monitoring care and social work in Scotland into the Care Inspectorate, the separate membership of Scottish Independent Custody Visitors, and the incorporation of Lay Observers to reflect their OPCAT-compliant role in monitoring court custody and transfers in England and Wales. Therefore the UK’s NPM is currently made up of 21 visiting or inspecting bodies[21] which visit prisons, police custody, court custody, immigration detention centres, children’s secure accommodation and mental health institutions. The NPM is co-ordinated by HMCIP and issued its first annual report in February 2011. In June 2013 HM Inspector of Prisons met with the Subcommittee on Prevention of Torture (SPT) in Geneva, the UN body that oversees OPCAT implementation, to discuss the work of the UK NPM and the strengths and weaknesses of its structure. In the opinion of the Chief Inspector of Prisons, it is a challenge to coordinate the activities of so many different bodies, all of which have different powers and many of which have much wider remits than the monitoring of places of detention[22]. In his view, the responsibilities and powers that members derive from being part of the NPM need to be clearly set out in legislation.

OPCAT embodies the idea that prevention of ill-treatment in detention can best be achieved by a system of independent, regular visits to all places of detention, so the effectiveness of this kind of system is linked to the real independence of government and the institutions it monitors[23]. Resource pressure continues to affect both the bodies that NPM members monitor, and the members themselves. The reintroduction of night-time confinement as a cost-saving measure in high security mental health hospitals in England and Wales demonstrates the direct impact of budget cuts on detention practices[24]. As above emphasised, there was an unacceptable increase in the number of self-inflicted deaths in prisons in England and Wales.

In the self-assessment regarding the five years of the NPM activity all members identified the lowest levels of compliance with issues relating to their visiting/monitoring functions[25]. Priorities for the NPM in 2015 have been to develop proposals to strengthen its governance, develop consistent approaches across the NPM to reduce reliance on and potential conflicts of interest from the use of seconded staff, and the protection of detainees from sanctions or reprisals for assisting or speaking to NPM members.

The NPM has begun work on a major joint project looking at isolation and practices that amount to solitary confinement.[26] On 1 December 2015, the National Preventive Mechanism Annual Report on UK detention was published and for the first time it also includes a national account of the use of solitary confinement and isolation in every type of custody across the UK. Inspectors and monitors of prisons and other detention facilities were alarmed that the use of isolation or solitary confinement was often unacknowledged and implied detrimental regimes and the lack of safeguards.[27]

2. Bodies in charge of the prisoners’ complaints

2.1 Judicial authorities/judicial remedies

In England and Wales, judicial review is the way in which the Courts intervene in prison issues. Judicial review (JR) is not an appeal but it is a technical remedy allowing the courts to assess the legality of administrative actions. It represents the jurisdiction by which the higher courts supervise the public law acts or omissions of public bodies and tribunals (such as decisions of magistrates’ courts or the Parole Board) or of other public bodies performing public functions. The general rule in judicial review is that the court will consider whether the decision has been lawfully made. The Rule 54 of the Civil Procedures Rules (CPR), defines a claim for judicial review as a means to review the lawfulness of an enactment, or a decision, action or failure to act in relation to the exercise of a public function[28].

The entry into force of Human Rights Act 1998 has significantly broadened the reach of judicial review. Standards of judicial review has become higher under the European Convention. Grounds for review in a prison law context are no different from those in any other area of law, therefore decisions can be challenged on the basis of illegality, procedural impropriety, irrationality or, in cases concerning the rights protected by the Human Rights Act 1998, proportionality[29].

This is reflected in the remedies available if an application for judicial review is successful. The remedies are the following:

  1. a mandatory order that is a judicial remedy issued from a higher court to compel or to direct a lower court or a government officer to fulfil mandatory duties correctly (formerly known as an order of mandamus);
  2. a quashing order that nullifies a decision which has been made by a public body, such an order is usually issued when the public body has acted ultra vires, namely outside of the scope of its powers (historically known as an order of certiorari);
  3. a prohibiting order that prevents the public body from doing something unlawful (in the past known as an order of prohibition);
  4. a declaration that is a judgment by the Administrative Court which clarifies the respective rights and obligations of the parties to the proceedings, without actually making any order;
  5. damages that is available as a remedy in judicial review in limited circumstances, not merely because a public authority has acted unlawfully, (in respect of this claims under European law or the Human Rights Act 1998 are included).

The decisions issued about prisoners that may be subject to a challenge will generally fall within the powers conferred on the Governor of the prison, the Secretary of State, the Parole Board or, in disciplinary cases, the district judge conducting the independent adjudication.

2.2 Non-judicial authorities/non-judicial remedies

Non-judicial authorities are the Secretary of State, the National Offender Management Service (NOMS), the governors of the prisons[30]. Rule 78 (1) of the Prison Rules 1999[31] and Rule 82 (1) of the Young Offender Institution Rules 2000[32] also impose a statutory duty on Independent Monitoring Boards to hear any request or complaint made by a prisoner. While there is a statutory requirement for each Prison Service establishment in England and Wales and for each Immigration Removal Centre in the UK[33] to have an IMB[34], their role is to monitor the day-to-day life in their local prison or immigration removal centre that is separate from the Prison Service itself and so they are not part of the formal internal complaints. Their role is limited to raising the matter with the appropriate authorities on behalf of the prisoners. The right of petition has long since been dismissed as not providing an effective remedy.

The Prison Act of 1952 empowers the Secretary of State and his officers to exercise all powers and jurisdiction exercisable as per the common law, by Act of Parliament, or by charter by visiting justices of a prison[35]. Any power of the Secretary of the State to make rules or regulations under the above-mentioned act shall be exercisable by statutory instruments[36]. Consequently, all decisions made either at ministerial level or by prison officers employed centrally by National Offender Management Service or at Prison Service Headquarters are taken on behalf of the Secretary of State. All decisions done in respect of the reserved subject complaint forms will be taken on the delegated authority of the Secretary of State. This will include decisions in relation to category A prisoners, repatriation decisions and compassionate release. Importantly, it will also include challenges to the contents of policy documents such as Prison Service Orders.

In contrast, a number of decisions are either conferred directly on the governor of a prison, or are devolved to the governor by the Secretary of the State. The Prison Rules give the governor responsibility for disciplinary matters such as segregation and prison adjudications and a range of other decisions are delegated to the Governor as a matter of policy by the Secretary of State. For example, in imposing a punishment for an offence against discipline the governor may impose the punishments provided for by the Rule 55 (1) of the Prison Rules 1999 but he shall take into account any guidelines that the Secretary of State may from time to time issue as to the level of punishment that should normally be imposed for a particular offence against discipline[37]. Governors also make decisions on issues such as categorization of prisoners (other than decisions on category A status); temporary release; the conduct of visits and other communications with the outside world; the Incentives and Earned Privileges Scheme, Home Detention Curfew and the transfer of prisoners.

The prisoners’ right to raise complaints about the prison regime or their treatment in prison through a formal set of procedures is a relatively recent development. Prior the 1990, prisoners could raise concerns about their treatment in custody by making a complaint to the governor, although there was no prescribed method for making that complaint; by submitting a complaint to the Board of Visitors (now the Independent Monitoring Board); or by submitting a petition to the Secretary of State. For long periods of time, the guidance issued by the Secretary of State even required prisoners to make use of these procedures at the same time as seeking legal advice until the ECtHR held this to be a breach of Article 6, or before seeking legal advice, a practice that was found to be unlawful in the domestic court[38].

2.3 Other proceedings: the Prison and Probation Ombudsman complaint scheme

The Ombudsman’s Terms of Reference permit him to investigate complaints submitted by individual prisoners; by individuals who are, or have been, under the supervision of the National Probation Service or housed in NPS accommodation or who have had pre-sentence reports prepared on them by the NPS; by individuals held in immigration removal centres[39].

A prisoner can complain to the Prisons and Probation Ombudsman, but he must have first completed the internal Prison Service complaint procedure. He must normally send his complaint to the Ombudsman within three months of receiving the final response to his complaint from the governor or NOMS Headquarters and within twelve months of the initial incident. This will normally entail the submission of the relevant COMP forms (or the probation service’s complaints forms) although where the matter has been raised by a legal adviser on behalf of the prisoner at the appropriate level, the Ombudsman will tend to accept the complaint for investigation.

In cases where there has been no reply to the final appeal for six weeks, the Ombudsman will treat this as the final determination. The complaint must be made within one month of the final determination although the Ombudsman will exercise discretion to extend that time limit in exceptional circumstances. Conversely, the Ombudsman may decide not to accept a complaint or to continue any investigation where it is considered that no outcome can be achieved or the complaint raises no substantial issue. The Ombudsman is also free not to accept for investigation more than one complaint from a complainant at any one time unless the matters raised are serious or urgent. All complaints must be treated as confidential by prison staff as must incoming correspondence from the Ombudsman to the prisoner. The Prison Service has no role in assessing eligibility. The Ombudsman will normally accept letters from legal advisers.

The Ombudsman is granted unfettered access to Prison and Probation Service documents for the purposes of assessing the eligibility of complaints and to conduct the investigation itself. It is aimed to complete the investigations within twelve weeks. In an attempt to cope with growing numbers of complaints, the Ombudsman has increasingly made use of a less formal procedure for determining less serious complaints where the prisoner and the Prison Service are simply sent a letter at the conclusion of the investigation containing the outcome. The Ombudsman does not have any binding powers and in case where a complaint is wholly or partially upheld, he can simply issue a recommendation. The Director General of the Prison Service (or the Chief Probation officer of the relevant probation board) then has four weeks in which to reply.

As the Ombudsman cannot bind the Prison and Probation Services, a complaint to his office is not a necessary precursor to applying for judicial review. The Ombudsman is not confined to the narrow judicial review grounds for reviewing decisions but can also reach a decision about the substantive merits of the case. For matters involving the less serious aspects of the prison regime and prison administration, a complaint to the Ombudsman may well be more pragmatic than resorting to judicial review[40].

The question of whether a complaint needs to be made to the Prisons and Probation Ombudsman before starting judicial review proceedings is more complex from a practical point of view but on a strict legal analysis, his position is little different from that of IMBs. The Ombudsman has no powers to bind the Prison and Probation Services to any course of action, therefore he cannot properly be classed as an effective independent remedy and so it would be very difficult for a Court to require this course of action to be taken before proceeding to judicial review. From an empirical perspective, there may be cases where it is in the inmate’s interests to pursue a complaint to the Ombudsman before or instead a judicial review application. Cases involving matters that will be considered trivial by the Courts, such categorisation decisions between category B and C may be better off being dealt with by the Ombudsman in the first instance.

Solicitors endeavour to resolve any issue through correspondence with the prison and by using the internal Prison Service complaints and Ombudsman schemes. If this approach does not resolve the matter, challenge is mounted to the Courts. The danger is making a complaint to the Ombudsman is that any negative report about the merits of the complaint may weigh heavily against the prisoner in any subsequent judicial review[41].

In general, public law is the mechanism by which the courts can review and control the administrative functions of the state to ensure that decisions are taken lawfully and that fair and appropriate procedures are followed. The most common public law remedy is through judicial review, although public law issues could be pursued through Ombudsman and complaints schemes.

2.4 The investigative procedure about the death in custody by the PPO

The PPO’s investigation is an highly important part of the investigative procedures available to families to enable them to obtain an adequate understanding of the circumstances relating their relative’s death in prison.

In the light of the current death rate in prison[42], the PPO’s role can be vital. In 18 of 42 reports of Her Majesty Chief Inspector of Prisons published so far, the body was critical of many aspects of the care and support for prisoners at risk of suicide or self-harm[43].

The quality of PPO investigations is not standardised in so far as the investigators appointed to the case adopted different approaches. The PPO acts on an administrative basis only. The PPO must be provided with unfettered access to Prison Service information, documents, establishments and prisoners and this includes classified material and information provided by other services such as the police and the healthcare services. The information the PPO receives during his investigation can be disclosed to the family. Practice varies between PPO investigators, but generally the family will be provided with copies of all documents obtained by the PPO and copies of transcripts of interviews conducted by the PPO prior to the disclosure of the draft or final report. The documents will be disclosed to third parties only to the extent necessary to fulfil the aims of the investigation. The PPO has no power to compel prison staff or other witnesses to provide evidence. Despite this, all prison staff, including those not directly employed by the Prison Service and those employed on a contract or temporary basis, are required to co-operate with the investigation.

In 2014 the Post Investigation Survey was introduced as a means to collect the views of custodial staff, healthcare professionals and coroners who had been involved in a PPO fatal incident investigation. The aim of the post-investigation survey is to understand stakeholders’ perceptions of the investigation process, including communication, reporting and recommendations made. It is one of a number of avenues used by the PPO to collect routine stakeholder feedback and review his performance[44].

As reported in the PPO “Responses collected between March 2014 and February 2015”, in the past when the PPO has had a backlog of cases, there was a need to provide interim feedback to governors for investigations where there was a significant amount of time between a death and the report being issued.

Now that timeliness has improved, the report is deemed the best mechanism for the PPO to feedback to the governor and other stakeholders, ensuring that the findings and recommendations presented are comprehensive and unlikely to need amending as a result of further information coming to light. Concerning the liaison officers, almost all of who took part in the survey (97%) reported having the investigation process explained to them by the investigator. Regarding the governors, 74% reported that they were contacted promptly.

The complex arrangements for commissioning and providing healthcare in prisons means that there is often no clear healthcare lead within an establishment. The “responses” underline that in light of changes to the provision of healthcare, the PPO should review how it communicates with healthcare contacts. The PPO will review its communication channels with healthcare, at both commissioner and provider level, to ensure that communication is optimised during the investigation and that learning can be shared appropriately. The survey also emphasised the PPO should review its communications with coroners to ensure that adequate information is provided to help support the coronial process[45].

The solicitors underline that probably only if families are legally represented during the PPO investigation, it can be sure that all areas of concern, and in particular the family’s key areas of concern are investigated. Legal assistance, advice and representation in relation to the initial investigation into the death and to any inquest that takes place before a Coroner’s Court encourage a process that is as open, transparent and accountable as possible[46]. Suffice it to say that the Court has indicated that “Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible, including effective access for the complainant to the investigation procedure”[47]. When the investigation is ineffective, this ineffectiveness undermines the effectiveness of other remedies, including the possibility of bringing a civil action for damages.

2.5 Articulation between remedies and control mechanisms

The Prison Act 1952 and the Prison Rules 1999 can be deemed as a framework for the regulation and management of prisons, allowing the executive to formulate the policies that govern life in prison. The Prison Service Performance Standards are a managerial audit tool, rather than a source of protection for prisoners[48]. Regarding the guarantees of independence of the administrative bodies, the Report of an Inquiry into Prison Disturbances in April 1990 known as Woolf Report[49] establishing an internal complaints procedure recommended that there should be an “Independent Complaints Adjudicator” providing a final avenue of appeal for prisoners unsatisfied with the Prison Service’s attempts to resolve complaints[50]. The complaints process in prisons was implemented and improved, the recommendation for a complaints adjudicator that is independent of the Prison Service has not been effectively put in effect with the Prison and Probation Ombudsman who still does not lie on a statutory basis.

3. Remedies

3.1 Accessibility of judicial and administrative remedies

3.1.1 Simplicity of the procedure

An effective access to a Court requires access to legal aid. As stated by the relevant rules on this general matter, judicial review should be used where no adequate alternative remedy, such as a right of appeal, is available and claimants are strongly advised to seek appropriate legal advice as soon as possible when considering proceedings[51]. It is a general principle of public law that internal remedies should be exhausted before an application for judicial review can proceed. The perspective is that litigation should be a final remedy and an application can be refused on the basis that an alternative remedy is available.

In relation to claims against the Prison Service, the only available internal remedy is to make use of the formal complaints scheme, notwithstanding as a letter from a solicitor should be treated in judicial review and sending an appropriate letter before claim will effectively exhaust all available internal remedies[52].

The formal principle of ‘effective judicial review’ presupposes in general that the court to which a matter is referred may require the relevant authority to notify its reasons for its decision. Although the European Court has held on occasion that judicial review is not always an effective remedy, this preexisted the enactment of Human Rights Act, and so applications for judicial review are normally be considered to constitute an effective remedy. Nevertheless, the Wednesbury standard of review[53] applied in fundamental rights cases, not in prison issues, has been considered an ineffective remedy under the ECHR art. 13[54].

Concerning the administrative remedies, the prisoners’ request process is promptly separated from the prisoners’ complaints procedure. Prisoners’ complaints procedures were subject to a stricter review in 1999/2000 in reply to the alarm expressed by Her Majesty Chief Inspector of Prisons in his Report that the complaints procedure was ineffective[55]. The Prison Service Order 2510 arose from the recognition that the old system was slow, cumbersome and difficult to use. The procedures specified in the new Order put great emphasis on ensuring that prisoners know how to make a formal complaint and have ready access to the means to do so[56].

The complaints process is conceived as a formal process in order to meet the requirements introduced by the rethinking of the Prison Service policy. Prisoners should be given information about the complaints procedures during the ‘early days’ stages of their time in custody and in their induction process, including details about the role of the Prison and Probation Ombudsman[57]. The amended complaint procedure encapsulated the formal principle that the system should led to prisoners being really able to complain. In the aims of the reform, the new procedures should be based on the general principles that the establishments should take full responsibility for dealing with requests or complaints internally, with recourse to headquarters only in the case of reserved subjects[58] or confidential access, and that staff should take responsibility for the decisions and actions which they take and be prepared to explain them[59]. This aspect is strictly related to the classification of the complaint and, consequently, to the time limits provided for by the Prison Service Orders for each category of complaint.

In the last document concerning the Prison Complaints with expiry date on 31 December 2016, the NOMS Agency Board defined an effective system for dealing with prisoner complaints in the following manner:

“An effective system for dealing with prisoner complaints underpins much of prison life. It helps to ensure that the Prison Service meets its obligation of dealing fairly, openly and humanely with prisoners. It also helps staff by instilling in prisoners greater confidence that their needs and welfare are being looked after, reducing tension and promoting better relations. A prison’s equilibrium is more likely to be maintained if prisoners feel they have an accessible and effective means of making a complaint, an outlet for their grievances and confidence that their complaints will be considered properly, with reasons given for decisions”[60].

There are four forms that can be used for making a complaint: form COMP 1 for ordinary complaints, COMP 1A for confidential matters or appeal, COMP 2 for confidential access to complaint and form ADJ 1 for appeals against adjudications[61]. If the detainee is dissatisfied with the response of the prisoner’s wing officer or of an officer at the management level, he can re-submit the complaint or he can proceed to appeal the decision on the COMP 1A, again using the form COMP 1A to the governing governor. On this occasion the form will be answered by a member of the prison’s management team. The above-mentioned stage exhausts all the internal avenues of complaint.

A limit of one form day can be imposed or alternatively asking the prisoner to forward their complaints for reply. Prisoners with learning or literacy difficulties or whose first language is not English language, should be allowed to submit a complaint in their own language if they wish. The complaint, the reply and any subsequent stage may require translation, which will necessarily take longer than normal. Complaint forms and the short and long version text leaflets for prisoners are available on the Intranet in 19 foreign language. The boxes are emptied (available on each wing) each working day by a designated officer, and each prison must have a complaints clerk who is responsible for registering and allocating complaints[62] and a complaints co-ordinator responsible for the management of the complaints procedure in the establishment. In the Prison Service Orders, the effectiveness of the operation of the complaints procedures is linked to the role of a complaints co-ordinator who should takes active steps to ensure that the system works.

Complaints should normally be submitted within three months of the incident or circumstances which give rise to the complaint, or the date on which they became known to the prisoner, or the date on which he or she receives the decision of an adjudication[63]. However, there is room for discretion to consider complaints submitted after this time limit in exceptional circumstances, where there are good reasons for the delay or where the issues raised are so serious as to override the time factor[64].

The ordinary and confidential access complaint forms also include a box for the prisoner to tick if the complaint is about violence, including threats or intimidation. In cases of complaints made by prisoners involving allegations against members of staff, any investigation will be commissioned by the governing governor or by the Area Manager, in case of a confidential access complaint to the Deputy Director of Custody (DDC), by the DDC (although the DDC may delegate commissioning to the Governor if appropriate). Any written allegation against a member of staff must be investigated, irrespective of whether the prisoner has used a form[65].

Certain subject matters require the prison to take additional steps to ensure the complaint is investigated and answered correctly. The complaints system must ensure that a racial aspect to any complaint is recognised and investigated. Complaints relating to a racial ground should be passed to the Race Relations Liaison Officer (RRLO) before being passed onto the relevant department at NOMS Headquarters.

A central discipline policy team at headquarters provides guidance to local establishments on the complaints against members of staff. There is a sort of mechanism to discourage the lodging of complaints, as matter of fact in cases where it has been held that the allegations are unfounded, the prisoner can be given a written warning not to repeal the allegations and can even be given a formal order to this effect. If the complainant persists in making a groundless allegation, his behaviour can result in a disciplinary charge[66]. If the form indicates that the complaint concerns bullying, the anti-bullying procedures should be followed[67]. A denial of access to complaint forms, or a blanket refusal to consider further complaints from a persistent complainant, could place a prisoner at risk by denying him or her recourse if he or she has a genuine grievance[68].

Complaints made about matters that have occurred at a different prison should be sent to that prison for a draft reply or for the provision of information to enable the holding prison to provide the response. Complaints about reserved subjects will be dealt with by the Deputy Director of Custody or relevant units in National Offender Management Service headquarters. These commonly include complaints about governors’ adjudications where form ADJ 1 should be used of complaints about category A matters; complaints against the governing governor (dealt with Briefing and Casework Unit or Directorate of High Security Prisons); litigation against the Prison Service (dealt with Operational Litigation Unit or Directorate of High Security Prisons); deportation/repatriation requests (dealt with UK Border Agency); matters affecting category A prisoners; adjudications; mother and baby units; compassionate release and special remission applications; artificial insemination and marriage request; matters relating to parole and those affecting life sentenced persons. Complaints about parole matters will be assessed by the NOMS Public Protection Unit for response[69].

3.1.2 The legal aid

A first topic concerns prison issues for which legal aid is available. In December 2013 legal aid has been removed for most areas of prison law, especially in the following cases: 1) Cases before the Parole Board about a move towards open conditions, otherwise known as pre-tariff reviews and return to open condition cases; 2) Prisoner eligibility for one of the few available places in mother and baby units; 3) Prisoner segregation and placement in Close Supervision Centres; 4) Category A reviews; 5) Access to offending behaviour courses; 6) Resettlement and licence conditions; 7) Disciplinary proceedings (where no additional days may be awarded). These cases affect prisoners on life sentences and imprisonment for public protection (IPP) sentences who can only progress to open conditions if the Parole Board advises that it would be safe for them to do so. The cuts implied that there was no lifeline for even the most vulnerable or incapacitated prisoner to apply for legal aid for prison law matters. After the entry into force of the Criminal Legal Aid Regulation 2013, legal aid was consequently restricted to three cases: 1) Parole Board hearings where the Parole Board has the power to direct release (not just to advise); 2) Disciplinary hearings where the prisoner is at risk of receiving additional days on their sentence; 3) Sentence calculation (including reviews of the length of tariff imposed on young people convicted of murder)[70].

On 28 July 2015 the Court of Appeal upheld the Howard League for Penal Reform and Prisoners’ Advice Service application for the judicial review of the legality of the change introduced through the Criminal Legal Aid Regulations 2013. The above-mentioned Court ruled that Howard League for Penal Reform and the Prisoners’ Advice Service are entitled to challenge legal aid cuts for prisoners. The Court of Appeal will hear the full case in 2016.

The Criminal Defence Service Regulations 2001 states that advocacy assistance may be granted to an individual regarding his treatment or discipline in prison (other than in respect of actual or contemplated proceedings regarding personal injury, death or damage to property), or where he is the subject of proceedings before the Parole Board, if his weekly disposable income does not exceed £186 and his disposable capital does not exceed £3,000[71]. Any application for the grant of a representation order shall be made on the form provided for by the CDSR[72]. Standard Crime Contract 2010 establishes the rules under which criminal Legal Aid services must be carried out by the solicitors. Public funding is subject to the Financial Eligibility Test. Advice and Assistance does not extend to cover representation, no matter what the circumstances of the client or the matter or case[73].

3.2 Characteristics of the procedures

3.2.1 The Speed

An urgent procedure is provided within the general mechanism of the judicial review and it can be assessed by the Administrative Court. If the claimant want to make an application for permission to be heard or considered by a Judge as a matter of urgency or to seek an interim injunction, he has to fill in a Request for Urgent Consideration[74] which can be obtained from the relevant Administrative Court Office or from the HMCTS website. The form includes the reasons for urgency and the timescale sought for the consideration of the permission application, namely within 72 hours or sooner if necessary, and the date by which the substantive hearing should take place. If the claimant is seeking an interim injunction, he must, in addition, provide a draft order; and the grounds for the injunction. A judge will consider the application within the time requested and may make such order as he considers appropriate. The judge may refuse the application for permission at this stage if he considers it appropriate, in the circumstances, to do so. If the Judge directs that an oral hearing must take place within a specified time, the Administrative Court Office will liaise with the applicant and the representatives of the other parties to fix a permission hearing within the time period directed. Where a manifestly unfounded urgent application is made, consideration may, in appropriate cases, be given to making a wasted costs order[75].

Regarding the administrative remedies, resolution of complaints within a reasonable time is conceived as one of the main parameters of the effectiveness of the complaints system. Time limits for responses run from the date the complaint or appeal is registered by the complaints clerk in the prison[76]. Time limits apply for each stage of the procedures[77]. It is not mandatory to meet a deadline if a case is complex, or because of staffing difficulties, or because reports are required from outside agencies. Although establishments are not expected to meet the targets in every case, delays should be regarded as exceptional. Interim replies should be forwarded within the time limit for a response to a complaint[78].

An urgent procedure is provided for the Prison Service Orders where the claimant alleges that he has been assaulted by a member of the staff and where the governing governor or the Area Manager considers that there is evidence that a criminal offence may have been committed. The Discipline Policy Team in Personnel Management Group must be consulted by telephone without delay so that consideration can be given to whether the matter should be referred to the police. If the police are called in, the Discipline Policy Team will advise whether the internal investigation should be suspended.

3.2.2 Adversarial

Rule 54.17 of Civil Procedure Rules states that any person may apply for permission to file evidence or to makes representations at the hearing for judicial review[79]. Civil Procedure Rules 54. 18 establishes that the Court may decide the claim for judicial review without a hearing only where all the parties agree[80]. The applicant can challenge a lower Court decision. The judicial review process is adversarial in nature.

Concerning the administrative procedure, written responses to formal complaints are mandatory and the responses must address the issues raised and contain sufficient information to enable the prisoners to understand how the matter has been considered and resolved. The answer is being given on behalf of the National Offender Management Service. The response to a complaint (or appeal) must properly address the points set out by the prisoner’s complaint, irrespective of whether the compliant is upheld or rejected. Decisions must not be taken arbitrarily or give the impression that they have been taken arbitrarily[81]. Responses must be supported by evidence where necessary. A prisoner is more likely to accept a decision if trouble is taken to explain it, even if he or she is still not entirely satisfied with the outcome. If the complaint is upheld, either in whole or in part, the response must say what action is being taken to provide any appropriate redress.

If a prisoner is dissatisfied with the response to his or her complaint, they may resubmit the complaint using an appeal form, setting out the reasons why they are appealing the original decision.

The applicant can challenge the decision about the complaint and an appeal should normally be made within 7 calendar days of the prisoner having received the initial response, unless there are exceptional reasons why this would have been difficult or impossible. The appeal form should be submitted in the same way as the original complaint form.

Prisoners must receive a response to their appeal within 5 working days of the appeal being lodged.

The response to an appeal must not simply repeat the response already given, even if it was correct, but must add to the explanation of why the original decision was made. Where an appeal is upheld, the response must explain why the original response is being overturned. The response to an appeal is the final scrutiny of a complaint by NOMS. The integrity of the complaints system depends upon governing governors taking full responsibility for the final appeals to complaints made within their establishment. Oral hearings are not provided.

If the prisoner remains dissatisfied after having received the appeal[82] response, he is able to seek the assistance of the Prison and Probation Ombudsman. There is no internal formal mechanism for appeal against the response to a complaint about a reserved subject. Prisoner who is dissatisfied with the response he/she received may pursue his complaint with the Prison and Probation Ombudsman.

3.2.3 Establishing the facts

In the judicial review of the disciplinary decisions, the Article 6 of the Human Rights Act could be applied. It is not for the prisoner to prove his innocence and a finding of guilt can only be made when evidence proving the charge is producing at the hearing. In the Tarrant decision the Court, setting out a consideration on the procedural difficulties faced by the prisoner (whether the prisoner has been able to interview relevant witnesses prior the hearing), affirmed that the criminal standard of proof has been properly applied in the case[83]. In the civil action for damages, the standard of proof is the civil standard, namely the balance of probabilities.

Collecting of evidence can be difficult when a prisoner prepares litigation, the documents and the recording of the complaints are not immediately available because of prison officials must be told to provide them. Although documentary evidence can be obtained from prison authorities, through Data Protection Act applications since the DPA Act 1998[84] or even through the Prison Service’s policies, it can still be hard for prisoners to have contemporaneous records made in relation to the relevant facts of the litigation. Under the provision of the Rule 50A of the Prison Rules 1999 any prisoner can be placed under constant observation by means of an overt closed circuit television system while he is in a cell or in other place in the prison if the governor considers that such supervision is necessary for the prevention, detection, investigation or prosecution of crime[85] but if a member of staff commits a crime against a prisoner, the latter most likely will no access to Close Circuit Television Recordings. Lacking legal representation, the access to physical evidence could be impossible.

As Simon Creighton and Hamish Arnott wrote, the particular disadvantage that prisoners face in this regard means that they need to be pro-active to ensure that contemporaneous evidence is prepared and retained. From his point of view, prisoners should be encouraged to keep their own records where possible, for example in the form of a diary where a complaint is being made about ongoing behaviour. In cases where distress and frustration are to be pleaded, the lack of a contemporaneous record will significantly weaken the claim. Official complaints forms should be submitted and applications can provide independent verification of a complaint. Given that injuries are not properly recorded, legal advisers have a relevant role. Legal advisers need to act promptly by making formal applications for material to preserved of for complaints to be recorded prior to a visit to the prisoner due to the inevitable time lapse that occurs between an incident taking place and the instructions being received by the solicitor. The records disclosed should normally include medical records prepared and obtained whilst the person is in custody. Disclosure should take place within 40 days but may be longer if the records are voluminous[86]. The Protection Data Act establishes an enforcement procedure if the subject evaluates that the data disclosure is inadequate or if the application is not complied with. Complaints can be made to the Information Commissioner who can issue enforcement notices and the deny of the disclosure is amenable to judicial review under the CPR Part. 8.

Concerning the administrative remedies, the Prison Service Orders provides for the prisoners to allege supporting evidence. The burden of proof imposed on the claimant is slightly lightened where the prisoner makes a complaint against a member of staff. If the complainant alleged that a member of staff has committed an assault, the victim must be examined by a Medical Officer as soon as possible and the outcome recorded[87]. In general, where a prisoner makes a complaint against a member of staff, the governing governor and the Area Manager have great discretionary powers in order to start the investigation and to evaluate the merits of the prisoners’ allegations.

3.3 Powers of the judge

The judicial authority acknowledges the violation in the meaning of the Convention for the Protection of the Human Rights and Fundamental Freedoms through a general remedy. This remedy is one intended to redress a violation of a Convention right or freedom by a public authority, without being limited in application to any particular factual or legal context. A form of general remedy may be seen in the fact that the Convention may be pleaded as a source of applicable law before several or even all courts or tribunals for the determination of a case. Such a system allows allegations of violation of Convention rights to be resolved at an early stage in proceedings, potentially without the need for appeal to higher courts on points of Convention law, whilst remaining subject to review, where necessary, by superior domestic courts. In England and Wales (UK) this sort of general remedy amounts to the Human Rights Act 1998[88]. A court or tribunal, in deciding a question that has arisen in relation to the Convention rights as they have been incorporated into national law, is obliged to have regard to (but is not formally bound by) the jurisprudence of the Court, which in practice means that domestic courts and tribunals follow the Court’s interpretation unless there is a particular reason to depart from it (regarding the disenfranchisement the domestic courts depart from the ECtHR interpretation). Under the Human Rights Act 1998, the courts have jurisdiction to determine whether an Act of Parliament is compatible with the rights provided for by the European Convention. The courts can establish whether an Act of Parliament is consistent with EU law and, if it is not, give precedence to the EU law. They can also, in accordance with the primary legislation, make a declaration that a statutory provision is incompatible with rights under the ECHR. Secondary legislation, policy documents, Prison Service Orders can therefore be declared incompatible. The courts declare that the legislation is inconsistent but they cannot disapply legislation which infringes a Convention right[89]. After the judicial declaration is made, it is left to the Parliament to change the legislation to make it compatible.

As above underlined, standards of judicial review became more higher under the European Convention for the Protection of Human Rights. With the case Golder v United Kingdom, the ECtHR had a crucial role in the overturning of the domestic judicial deference to the argument that public policy should inhibit the courts from examining and reviewing the actions of prison administrators[90]. The Golder decision affirmed the idea that the rights of the prisoners could not be automatically infringed or suspended due to their status as prisoners. That leading judgement was in contrast with the view that inmates are not entitled to rights but to privileges “octroyés” at the discretionary power of the Secretary of the State[91]. One year later the national jurisdiction shared the perspective of the ECtHR, in R v Board of Visitors of Hull Prison ex p St Germain[92] Jeffrey Laing LJ affirmed that the statutory obligation to make the rules are merely declaratory on one of the basic rules of natural justice, namely that every party to the controversy has the right to a fair hearing. “Despite the deprivation of his general liberty, a prisoner remains invested with residuary rights appertaining to the nature and conduct of his incarceration (…). An essential characteristic of the right of a subject is that it carries with it a right of recourse to the courts unless some statute decrees otherwise”.[93]

The judge held that he must know what evidence has been given and what statements have been made effecting him; that he then must be given a fair opportunity to correct or contradict them. In that case, the Court of Appeal established that the supervisory jurisdiction of the High Court extended to the disciplinary decisions of Prison Boards of Visitors (now IMBs) and therefore that these boards could be required to observe natural justice[94].

Following the case of R v Secretary of State for the Home Department ex p Mc Avoy, R v Deputy Governor of HMP Parkhust ex p Leech, R v Deputy Governor HMP Parkhust ex p Hague, judicial review gradually increased to the whole range of disciplinary powers such as disciplinary transfer[95], governor’s adjudications[96] and segregation[97]. In Hague and Weldon Lord Bridge held that the availability of judicial review as a means of questioning the legality of action purportedly taken in pursuance of the Prison Rules is a beneficial and necessary jurisdiction which cannot properly be circumscribed by considerations of policy or expediency in relation to prison administration.

Applications for judicial review relying on HRA 1998 is an extremely important feature of the recent development of prison law.

The Daly decision underlined that following the incorporation of the convention by the Human Rights Act 1998 and the bringing of that Act fully into force, domestic courts must themselves form a judgment whether a convention right has been breached (conducting such inquiry as is necessary to form that judgment) and, so far as permissible under the Act, grant an effective remedy. In the Daly case seemingly compliance with the European Convention for the Protection of Human Rights and with the common law produce the same result. But in reality it represented the first post Human Rights Act example of how the enforcement of the principle of legality could bear different outcomes in respect of the same matters when addressing the fundamental rights protected by the Convention. While Daly was decided on the application of a common law, recognised as a sufficient source of the fundamental right to confidential communication with a legal adviser for the purpose of obtaining legal advice, it must be emphasized that in situations where the primary legislation requires a public authority to act in a particular manner, HRA 1998 makes provision either for the legislation to have words inserted or be read in a manner which will ensure compatibility with Convention rights[98] or for declaration of incompatibility to be sought[99].

After the enactment of the Human Rights 1998, there has been a shift in the judiciary towards a less strict absentionist approach, recognizing that in certain circumstances as it is necessary to undertake a more searching review of administrative decisions.

The European Court of Human Rights requires the reviewing court to subject the original decision to “anxious scrutiny” as to whether an administrative measure infringes a Convention right. Since Ezeh and Conners v United Kingdom[100], the ECHR Article 6 applies to prison disciplinary hearings where additional days can be added to prison sentences. Although, quoting the dissenting opinions in R v United Kingdom[101], the relationship between the right to be heard by a tribunal, within the meaning of Article 6, and the right to an effective remedy before a national authority, within the meaning of Article 13, should be considered more thoroughly.

Relating the whole tariff order, in the pending Hutchinson case, the Strasbourg Court quoting and not using in a ‘proper’ manner the Bieber[102] and Newell and McLoughin decisions[103], does not find a violation of Article 3 in the meaning of the Convention. The cited domestic judgements represent an example of “functional disobedience”[104] relating to the Vinter decision and the Hutchinson case will incorporate these national decisions overruling the “Vinter review“. The ECtHR accepted the national court’s interpretation of domestic law, consequently the power to release under the section 30 of the Crime (Sentences) Act 1997, exercised in the way delineated in the Court of Appeal’s judgements mentioned above, is sufficient to comply with the requirements of Article 3. This approach could be deemed consistent with the idea that the domestic Courts and the ECtHR have a shared judicial responsibility in the implementation of the judgements of the European Court of the Human Rights[105]. More exactly, the ECtHR endorsed the authoritativeness of an English Court’s decision on the meaning of the national law dissenting from Vinter. The violation of the ECHR in the meaning of the Convention becomes no-violation in the interpretation of the domestic Courts.

Article 13 also allows a State to choose between a remedy which can expedite pending proceedings or a remedy post factum in damages for delay that has already occurred. However, there is very little in the Court’s case-law to shed light on how such a preventive remedy could look like. England and Wales provided for a remedy post factum in damages for delay.

3.3.1 Compensatory remedies under the Human Right Act in the light of the European Convention

The exception to the principle that claims for damages arising from any unlawful actions are devolved to the Queen’s Bench Division or the County Court for determination is connected to the Human Right Act 1998 claims. The right to claim damages normally derives from a finding of violation of rights protected by the Convention. Poor prison conditions can also potentially give rise to claims for damages for breach of ECHR rights, in particular under the umbrella of the Article 3 and of the Article 8. In this respect the ECHR Article 41 is wholly reflected in the Section 8 of the HRA.

Under Article 41 there are three pre-conditions to an award of just satisfaction: firstly, the Court should have found a violation; secondly, the domestic law of the member state should allow only partial reparation to be made and thirdly, it should be necessary to afford just satisfaction to the injured party. There are also pre-conditions to an award of damages by a domestic court under section 8: a) that a finding of unlawfulness or prospective unlawfulness should be made based on breach or prospective breach by a public authority of a Convention right; b) that the court should have power to award damages, or order the payment of compensation, in civil proceedings; c) that the court should be satisfied, taking account of all the circumstances of the particular case, that an award of damages is necessary to afford just satisfaction to the person in whose favour it is made; and (d) that the court should consider an award of damages to be just and appropriate.

A domestic court may not award damages unless satisfied that it is necessary to do so, but if satisfied that it is necessary to do so it is hard to see how the court could consider it other than just and appropriate to do so. In deciding whether to award damages, and if so how much, the court is not strictly bound by the principles applied by the European Court in awarding compensation under article 41 of the Convention, but it must take those principles into account. It is, therefore, to Strasbourg that British courts must look for guidance on the award of damages.

This interpretation has been expressed by Lord Bingham of Cornhill in R (Greenfield) v Secretary of State for the Home Department[106]. In this decision, on the one hand, the judge considered the entitlement of an applicant or claimant to damages under the European Convention and under section 8 of the Human Rights Act 1998 and, on the other hand, the principles adopted in Strasbourg in relation to claims for compensation for violations of article 6. In the cited case, Richard Greenfield made an application to be compensated for the loss of the opportunity arising from disciplinary proceedings that breached article 6 and for anxiety and frustration while serving a two year sentence of imprisonment at HM Prison Doncaste. Lord Bingham of Cornhill recalled the Kingsley decision[107] to hold that just satisfaction under the ECHR does not imply the payment of damages and requires a causal connection between the violation found and the loss for which an applicant claims to be compensated. Lord Bingham did not consider that it could be established that representation at the disciplinary hearing would have achieved a different result. The ECHR Article 5 provision mentioned in the judicial reasoning has been interpreted as enshrining the right to have a mechanism to apply for compensation provision and not the right to be awarded compensation[108].

There should be ‘appropriate and sufficient’ redress, which means inter alia that the compensation should be paid without undue delay (namely six months from the date on which the decision awarding compensation became enforceable).

3.3.2 Adequacy to structural problems: consistency of the judicial authority with the nature and kind of the complaints addressed to it

The core-issue here concerns the access to release in case of whole tariff order. The legal source of the complaint procedure, the section 30 of the Crime (Sentences) Act 1997, was applied in a very restrictive way, as held by the ECtHR in Vinter, because of its lack of clarity. As emphasized above, the effectiveness (or the ineffectiveness) of the access to the remedy of the release in case of whole tariff order is the main issue of the Hutchison case[109], which is now pending before the Grand Chamber. Prior to the entry into force of the Criminal Justice Act 2003, it was the practice for the mandatory life sentence to be passed by the trial judge and for the Secretary of State, after receiving recommendations from the trial judge and the Lord Chief Justice, to decide the minimum term of imprisonment which the prisoner would have to serve before he would be eligible for early release on licence. Therefore, the relevant authority ended up by being only an administrative body and the whole tariff prisoner could not challenge its decision.

With the entry into force of the Criminal Justice Act 2003 (and, in particular, section 276 and schedule 22 to the Act, which enact a series of transitional measures concerning existing life prisoners), all prisoners whose tariffs were set by the Secretary of State have been able to apply to the High Court for review of that tariff. Upon such an application the High Court may set a minimum term of imprisonment or make a whole life order. Theoretically, judicial authority should be consistent with the nature and the kind of the complaints addressed it. On a practical level, the judicial authority is confirming the restrictive practice of the Secretary of State.

As underlined in the introductory part, relating the enforcement of the whole-tariff order, the United Kingdom is still in violation of the ECHR Article 3 and the domestic Court do not face with this problem. The main critical issue concerns the scope of the judicial scrutiny carried out by the national Courts in applications for the judicial review of the rebuttal by the Secretary of State in relation to the release of whole life prisoners. In theory, the Courts can order to the Secretary of State the release of the whole life prisoner if the whole life sentence is no longer justified on legitimate penological grounds, but it is not the real set-up of the English and Welsh Courts[110].

4. Procedures regarding disciplinary issues

The disciplinary decision must be provided to the prisoner and recorded on the record of the hearing. The Prison Service Orders confirms that the adjudicator must give reasons for decisions and, in case of groundless decisions, prisoners are entitled to challenge. The failure to set out the reasons does not imply the unlawfulness of the decision per se, because the Rules do not involve a statutory duty. The changes to the Rules introduced in 2005 removed the power of the Secretary of State to review the Independent Adjudicator’s hearing.

Currently, the reviewer is a senior district judge (SDJ) from the magistrates’ court system appointed by the Secretary of State for Justice who has the power to reduce, substitute or quash the punishment when it appears that the punishment was ‘manifestly unreasonable’ (manifestly unreasonableness is one of the unlawfulness criteria). If a governor or director believes that an IA adjudication is flawed then this must be referred back to the Independent Adjudicator at the Chief Magistrate’s Office as neither the governor nor the Secretary of State has any power to interfere with the decisions of the Independent Adjudicator. Whether the adjudication was conducted by a governor or by an Independent Adjudicator the final remedy is judicial review.

De jure, cases involving loss of liberty as a punishment in the form of additional days are heard by district judges, while governors adjudicate charges where only the lesser punishments can be imposed[111].

Governors can delegate their power to a trained operational manager and directors to an officer senior enough to be in charge of the prison in the director’s absence. While controllers retain statutory power to conduct adjudications, it is anticipated they will no longer routinely do so once directors and their staff are suitably trained.

The judicial review court will not quash findings of guilt on the basis of minor technical breaches of procedure, but will examine whether such breaches have resulted in unfairness. There is no mechanism for reviewing or appealing findings of guilt because of the appeal mechanism is restricted to the level of punishment awarded.

As underlined above, since Golder v. United Kingdom[112] and since R v. Board of Visitors of Hull Prison ex p Saint Germain, the High Court extended its jurisdiction to the disciplinary decisions of Prison Boards of Visitors (now IMB’s). Since Mc Avoy, Leech and Hague, judicial review gradually increased to cover a wide range of disciplinary powers such a disciplinary transfer, governor’s adjudication and segregation. In 2002 the ECtHR[113] confirmed the charges where prisoners can have days added to their sentence engages Article 6 necessitating radical changes to the disciplinary system.

The governors and the district judges are the same for inmates in pre-trial detention and convicted prisoners. The judicial review ensure that separate authorities are in charge the control of the power on disciplinary decisions.

5. Prisoners rights protection and release

The Secretary of State retains the power to release prisoners serving life sentences on compassionate grounds at any time of the life sentences and it is the existence of this power that has led the Court of Appeal in Bieber[114] and in Newell and Mc Loughlin[115] to find the lawfulness of the whole life sentence. As above emphasised, the Secretary of State does not apply the section 30 of the Crime (Sentences) Act 1997. The compassionate release for lifers is ordinarily restricted to medical grounds. The power is therefore somewhat narrower than for prisoners serving determinate sentences where release on compassionate grounds is permitted where tragic family circumstances or medical grounds for compassionate release occur. With the entry into force of the Criminal Justice Act 2003, all prisoners whose tariffs were set by the Secretary of State have been able to apply to the High Court for review of that tariff.

Although the above-mentioned domestic judgement confirmed the Secretary of State decision, a judicial authority can control the decisions of an administrative authority.

Regarding the conditional release, prisoners subject to the automatic conditional release (ACR) scheme will have their release date notified to them by their holding prison and that they are subject to a licence only requiring supervision by the Probation Service after release.

Prisoners eligible to the discretionary conditional release (DCR) scheme are subject to the Parole Board. For prisoner serving over four years but less than 15 years, the Parole Board’s recommendation is binding upon the Secretary of State. For DCR prisoners serving 15 years or more, the board only has the power to make recommendations to the Secretary of State who retains the final discretion as to whether release should be authorised. In these cases, judicial review is the final remedy.

The competent authority for temporary release, resettlement day and night release is the governor. It is possible to apply to have these decisions reviewed by the Secretary of State. The judicial review is the final remedy. Where an application for review has been made and rejected, the proceedings would fall to be commenced against both the governor and the Secretary of State. There may also be instances where the governor has reached a decision that is in accordance with a policy contained in a Prison Service Order but where it is contended that the contents of the policy are unlawful[116].

6. Effectiveness of the judicial and non-judicial protection (findings from qualified sources)

Despite the relevant role of the judiciary concerning a number of high profile cases decided in favour of prisoners, judicial review is a very technical and cumbersome remedy that is not readily accessible to most prisoners[117].

According to the last Report of Her Majesty Chief Inspector of Prisons, inmates continued to have very limited faith in complaints procedures. In this survey, only 29% of those who had submitted a complaint felt it had been dealt with fairly. Prisoners stated that they were deterred when they saw complaints collected by residential staff and complaints boxes left unlocked. Persons interviewed affirmed that complaint forms were also not always freely available, some complaints were responded to by the person being complained about, and many responses were late[118].

The report from the Prisons and Probation Ombudsman which is edited in March 2015[119] emphasizes that the reasons for which prisoners interviewed did not use the internal complaint system were mainly to do with fear of reprisal and a lack of confidence in the system. There was widespread mistrust of the internal complaints system and a belief that formal complaints were a waste of time as they would not be dealt with, or would be tampered with by staff. Some persons said they did have good support from prison staff and were able to turn to them when problems arose. They were, therefore, less likely to need the Ombudsman if their complaints were being resolved. Participants to the focus groups[120] organised by the PPO discussed ways to improve the internal complaints system and access to his office; these are included in the report along with recommendations for the Prison Service and the Ombudsman[121].

As emphasized in one of the latest HM Inspectorate of Prisons Reports, black and minority ethnic prisoners still have more negative perceptions of the fairness and effectiveness of complaints systems. 28% who said that they had made a complaint felt they were dealt with fairly compared with 41% of white prisoners and 22% reported being prevented from making a complaint, compared with 15 of white prisoners[122].

The above-cited PPO report underlines that the length of time it took prisons to process complaints was a deterrent. Persons interviewed often did not want to wait for a resolution; they wanted the problem to be sorted out as soon as possible. They saw the complaint system as being a slow and dragged out process, which ultimately would not solve their problem[123].

According to the survey of the HM Chief Inspector of Prisons on Swaleside too many complaints received late responses; around 70 submitted in April 2014 were already late, and 57 from January and a similar number from February were also outstanding. The Inspector found that there was no structured quality assurance system to oversee quality and timeliness, and no structured identification of emerging trends. Some establishments ensured prisoners could complain easily, even though this could generate more complaints. In the survey on Woodhill, showed that more prisoners thought that it was easy to make a complaint, and forms were freely available on all wings. Clear instructions on how to make a complaint and the subsequent appeal process were displayed in residential units[124].

As underlined in the PPO report, a common concern was the lack of details in prisons’ replies to their complaints. Persons interviewed felt their complaints were not taken seriously or were ignored by the prison. As underlined above, a very common theme among all the participants was the fear of reprisal which seemed to be the major reason for not complaining. Others alleged officers would treat prisoners who complained differently; this included downgrading their Incentives and Earned Privilege level, sacking them from their job or removing privileges. The women thought making a complaint would be seen as disruptive and could impact on the decision to grant them Home Detention Curfew or give Parole. Prisoners interviewed proposed a system, which is already in place in the Secure Training Centres, to improve the transparency of the internal complaints system and provide evidence of their complaint if they needed to chase the response. In STCs, young people are given a receipt slip torn off from the bottom of their complaint, within 24 hours of it being received by centre staff. The young person then has proof that the complaint has been received and the time and date it was submitted.

The Prisons and Probation Ombudsman told that his office had experienced between 2013 and 2014 a 35 per cent increase in complaints from prisoners, including a 50 per cent increase in complaints about regimes[125]. The report from the PPO in March 2015 sets out the findings of a project carried out to establish whether groups under-represented in the PPO complaint caseload are sufficiently able to access the service provided. As resulted from the interviews, very few persons had made a complaint to the PPO. Some participants had made a complaint to the prison, but very few had appealed against the decision or used the second stage of the process. Many participants had made verbal complaints, or dealt with the issue on their own. Some had taken their problem to the Independent Monitoring Board (IMB) or Barnardo’s advocates. The Report emphasizes that most prisoners interviewed who had sent a complaint to the PPO had been told it was not eligible for investigation, or if their complaint was investigated, it was not upheld. The person interviewed felt the PPO did not explain why they were not investigating their complaint and were frustrated at the lack of information. Among female participants especially, there was a lack of trust in the independence of the PPO. Some saw it as part of the Prison Service. This led to scepticism about the value of complaining to the PPO and they considered the PPO to be part of a biased system[126].

A number of the persons interviewed said they used the IMB because they were accessible as their members were based in the establishment and they could go up and talk to them.

This face-to-face interaction was important for some participants, as it contrasted with having to send a piece of paper to what they saw as a faceless organisation. Young people who had access to Barnardo’s advocates in their establishment suggested the PPO should provide a similar, on-site service. This would eliminate the need to go through the prison staff, whom some of them did not trust. Prisoners interviewed also liked the idea of being able to discuss their complaint with one person, and build a relationship, as they are able to do with an advocate. A suggestion was made for the PPO to widen its remit so eligibility was not restricted to having to go through the internal complaints system first. Person interviewed liked the fact they could go to the IMB with any problem they may have, and that there were no conditions attached to the help the IMB could give[127]. The above-cited report underlines that the written form of the complaints assessment procedure and of the complaints responses regime can be considered one of the main reason for not complaining.

Concerning the proceedings related to disciplinary responsibility, the Howard League for Penal Reform Report edited in 14 December 2015 reveals that the number of adjudications where extra days could be imposed has increased by 47 per cent since 2010. The report states that the principle of independent adjudication does not legitimate the overuse of adjudications because the imposition of additional days is very expensive and counterproductive. Paradoxically, the disciplinary responsibility arises from the poor conditions of detention, namely the increasing overcrowding and the front-staff cuts. In the opinion of the Chief Executive of the Howard League for Penal Reform, Frances Crook, the Ministry of Justice should curtail the use of additional days in all but the most serious cases. Despite the formal strengthening of the guarantees and the pivotal role of the district judges, the Report states that most adjudications are decided by a prison governor before whom there is no really right to legal representation, except in very limited circumstances. Cases that are sufficiently serious to attract the risk of additional days are referred to a visiting district judge. As the NGO’s underlined, additional days cannot be imposed beyond the final end date of the sentence, therefore the overwhelming majority of challenging prisoners could be released without any period on licence in the community[128].


[1] https://www.gov.uk/government/statistics/prison-population-figures-2015.

[2] http://www.publications.parliament.uk/pa/cm201415/cmselect/cmjust/309/309.pdf.

[3] http://www.howardleague.org/weekly-prison-watch/.

[4] https://www.gov.uk/government/statistics/prison-population-figures-2015.

[5] Prison Officer Association quoted in House of Commons Justice Committee, Prisons: planning and policies, Ninth Report of Session 2014–15.

[6] International Centre for Prison Studies Prison Brief, updated November 2014.

[7] 2014 – 2015 Annual Review, The Howard League for Penal Reform.

[8] Punishment in Prison: the World of Prison Discipline, The Howard League for Penal Reform, 14 December 2015.

[9] 2014 – 2015 Annual Review, The Howard League for Penal Reform.

[10] Annual Report, HM Chief Inspector of Prisons, 2014 – 2015.

[11] Punishment in Prison: the World of Prison Discipline, cit.

[12] Grand Chamber, Vinter and others v the United Kingdom, Applications nos. 66069/09, 130/10 and 3896/10, 9 July 2013.

[13] ECtHR, Hutchinson v. the United Kingdom, Application no. 57592/08, 3 February 2015, referral to the Grand Chamber, 1 June 2015.

[14] ECtHR, Grand Chamber, Hutchinson hearing, Strasbourg, 21 October 2015.

[15] ECtHR, McDonnel v The United Kingdom judgement, Application no. 19563/11, 9 December 2014

[16] ECtHR, Greens and M.T. v the United Kingdom, Applications nos. 60041/08 e 60054/08, 23 November 2010, Final 11 April 2011.

[17] ECtHR, Firth and Others v. United Kingdom, Application no. 47784/09, 12 August 2014.

[18] ECtHR, McHugh and others v The United Kingdom, Application no. 51987/08 and 1, 014 others, 10 February 2015.

[19] See https://www.justiceinspectorates.gov.uk/hmiprisons/national-preventive-mechanism/.

[20] The UK government explicitly required that they have a statutory basis and be able to make unannounced visits to places of detention. The government concluded that 18 bodies operating in England, Wales, Scotland and Northern Ireland met the mentioned requirements. Thus, they were formally designated in a statement to Parliament on 31 March 2009.

[21] For England and Wales: Her Majesty’s Inspectorate of Prisons (HMI Prisons); Independent Monitoring Board (IMB); Independent Custody Visiting Association (ICVA); Her Majesty’s Inspectorate of Constabulary (HMIC); Care Quality Commission (CQC); Healthcare Inspectorate Wales (HIW); Office of the Children’s Commissioner for England (OCC); Care and Social Services Inspectorate Wales (CSSIW) Office for Standards in Education, Children’s Services and Skills (Ofsted), Lay Observers (LO). For Scotland: Her Majesty’s Inspectorate of Prisons for Scotland (HMIPS); Her Majesty’s Inspectorate of Constabulary for Scotland (HMICS); Scottish Human Rights Commission (SHRC); Mental Welfare Commission for Scotland (MWCS); Care Inspectorate (CI); Independent Custody Visitors Scotland (ICVS), Lay Observers (LO). For Northern Ireland: Independent Monitoring Boards (Northern Ireland) (IMBNI); Criminal Justice Inspection Northern Ireland (CJINI); Regulation and Quality Improvement Authority (RQIA); Northern Ireland Policing Board Independent Custody Visiting Scheme (NIPBICVS).

[22] N. Hardwick, Introduction to “Monitoring places of detention, Fifth annual report of the United Kingdom’s National Preventive Mechanism”, 1 April 2013 – 31 March 2014.

[23] On 5 March 2014, after a discussion within the NPM, a response was provided to the Committee against Torture. In its response the NPM expressed its commitment to working to strengthen the actual and perceived independence of the mechanism in line with standards set by the Optional Protocol to the Convention against Torture. Members committed to work towards making a clearer distinction between the human resources they apply to NPM activities and those applied to their broader functions, and to work towards a reduction in their reliance on seconded staff allocated to NPM activities. In addition, the UK NPM agreed to develop a set of principles to reduce the possibility of conflicts of interest of seconded staff across the NPM. It welcomed the Committee’s recognition of the need to ensure the NPM is adequately resourced, see “Monitoring places of detention, Fifth annual report of the United Kingdom’s National Preventive Mechanism”, 1 April 2013 – 31 March 2014, p. 33.

[24] Care Quality Commission (2014), “Monitoring the Mental Health Act” in 2012/13, p. 36.

[25] “Monitoring places of detention, Fifth annual report of the United Kingdom’s National Preventive Mechanism”, pp. 38-39.

[26] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/444785/hmip-2014-15.pdf.

[27] National Preventive Mechanism Annual Report 2014-2015 on UK detention, 1 December 2015.

[28] Civil Procedure Rules, Part 54 Judicial Review and Statutory Review, Rule 54. 1.

[29] See P. Von Berg, edited by, Criminal Judicial Review, A Practitioner’s Guide to Judicial Review in the Criminal Justice System and Related Areas, Oxford, 2014.

[30] These bodies give written responses to formal complaints on behalf of the National Offender Management Service.

[31] “The independent monitoring board for a prison and any member of the board shall hear any complaint or request which a prisoner wishes to make to them or him”, Prison Rules 1999, Rule 78 (1).

[32] “The independent monitoring board for a young offender institution and any member of the board shall hear any complaint or request which an inmate wishes to make to them or him”, Young Offender Institution Rules 2000, Rule 82 (1).

[33] IMB are also attached to a number of a Short Term Holding Facilities (STHFs’) across UK. Currently, they are approximately 140 IMBs in total. See http://www.imb.org.uk.

[34] IMB members are independent, unpaid and work an average of 2-3 days a week.

[35] Prison Act 1952, Rule 4 (3).

[36] Prison Act 1952, Rule 52 (1).

[37] Prison Rules 1999, Rule 55 (4).

[38] See S. Creighton and H. Arnott, Prisoners, Law and Practice, Legal Action Group, London, 2009, pp. 593-594.

[39] http://www.ppo.gov.uk/.

[40] On the issue of the relation between the two remedies, S. Creighton and H. Arnott, Prisoners, Law and Practice, cit., p. 604.

[41] See http://www.bhattmurphy.co.uk/bhatt-murphy-45.html.

[42] See the Introduction.

[43] Annual Report, HM Chief Inspector of Prisons, 2014 – 2015, p. 35.

[44] Prison and Probation Ombudsman for England and Wales, Independent Investigations, Post-investigation Survey, Feedback from stakeholders following the completion of fatal incident investigations, Responses collected between March 2014 and February 2015.

[45] Ibidem.

[46] See http://www.bhattmurphy.co.uk/bhatt-murphy-45.html.

[47] Inter alia, ECtHR, Labita v. Italy, Application no 26772/95, 6 April 2000 and ECtHR, Isayev v. Russia, Application no. 26772/95, 21 June 2011.

[48] S. Creighton, H. Arnott, Prisoners, Law and Practice, Legal Action Group, London, 2009, pp. 2-3.

[49] “The Woolf Report, A Summary of the main findings and recommendations of the inquiry into prison disturbances”, Prison Reform Trust, (edited by), London, 1991. In the purpose of the Prison Reform Trust, the pamphlet represents an accurate summary of the conclusions of the Lord Justice Woolf, Ibidem, p. 8. The Report’s 12 major recommendations and the 204 proposals on matter of detail constituted an agenda for a total overhaul of the present system and shaped a new penal policy.

[50] “The Woolf Report, A Summary of the main findings and recommendations of the inquiry into prison disturbances”, cit., Appendix 1, Major Recommendation 12.

[51] Pre-action Protocol for Judicial review, Introduction, § 5, see https://www.gov.uk/government/publications/pre-action-protocol-for-judicial-review.

[52] On this practice, see the Court Service and the Ministry of Justice websites, (https://www.gov.uk/government/organisations/hm-courts-and-tribunals-service/about/complaints-procedure) and for an exhaustive framework S. Creighton, H. Arnott, Prisoners, Law and Practice, cit., p. 617.

[53] The judgement of AP Picture Houses Ltd v Wednesbury Corporation gave the standard of unreasonableness of public body decisions that would be them liable to be quashed on judicial review. The court held that it could not intervene to overturn the decision of the defendant merely because the court disagreed with it. To have the right to intervene, the court would have to conclude that in making the decision, the defendant took into account factors that ought not to have been taken into account, or the defendant failed to take into account factors that ought to have been taken into account, or the decision was so unreasonable that no reasonable authority would ever consider imposing it. The test laid down in that case is known as “the Wednesbury test”. The term “Wednesbury unreasonableness” is used to describe the third criterion, of being so unreasonable that no reasonable authority could have decided that way. This case has cited in the courts’ decisions of England and Wales as a reason for courts to be hesitant to interfere in the administrative law bodies, Court of Appeal, Associated Provincial Picture Houses Ltd v. Wednesbury Corporation, 7 November 1947, CA.

[54] See ECtHR, Smith and Grady v United Kingdom, Applications nos. 33985/96, 33986/96, 25 July 2000.

[55] Annual Report of HM Chief Inspector of Prisons for England and Wales 1999-2000, HMSO, London 2001.

[56] Prisoner’ s Requests and Complaints Procedure, Prison Service Order 2510, HM Prison Service, para 6. 2. 1.

[57] Early days in custody – Reception in, first night in custody, and induction to custody, Ministry of Justice, National Offender Management Service, 1 January 2012, p. 13

[58] On the specificity of this category, see the conclusion of this paragraph.

[59] Prison Service Order 2510, Underlying principles, para 1. 2. 1.

[60] Ministry of Justice, National Offender Management Service, Prisoner Complaints, Issue Date: 29 December 2011 (Update 1 April 2012), Expiry Date: 31 December 2016, para 1. 3.

[61] Complaint forms must be made freely available to prisoners on the wing near the place where the box for the receipt of completed forms is situated”, ibidem, para 2.1.1.

[62] Prison Service Order 2510, para 7. 1. 1.

[63] Prison Service Order 2510, para 6. 4. 1.

[64] Ibidem.

[65] Prison Service Order 2510, para 11. 3. 1.

[66] Prison Service Order 2510, para 11. 7. 1.

[67] PSO 2510 12. 2. 1 and PSO 1702

[68] Ministry of Justice, National Offender Management Service, Prisoner Complaints, cit., para. 2.1.11.

[69] The Parole Board is an executive Non-Departmental Public Body (NDPB) sponsored by the Access to Justice unit of the Ministry of Justice and independent of the Prison Service, so the board itself cannot respond to this sort of complaints. According to the solicitors’ view, this aspect is relevant for the prisoners who have to submit this kind of complaints.

[70] I am indebted to Simon Creighton for the precious overview on this issue.

[71] Criminal Defence Service (General) (No 2) Regulation 2001, Sec. 5 (3).

[72] Ibidem, Sec. 6 (1).

[73] Standard Crime Contract 2010, Sec. 4 (41), lately amended on February 2015.

[74] It represents the so-called Form N463.

[75] “Administrative Court Guidance”, https://www.justice.gov.uk/downloads/courts/administrative-court/applying-for-judicial-review.pdf.

[76] Prison Service Orders 2510, para 13. 2.

[77] The time limit provided for by the Prison Order for a Stage 1 response amounts to 3 weekdays; 10 weekdays for a Stage 1 response to complaint against member of staff; 10 weekdays for a Stage 1 response to complaint involving another establishment; 5 weekdays for a Stage 1 response by RRLO; 5 weekdays for a Stage 1 response with racial aspect (not provided by RRLO); within one week of receipt of the stage 1 response in case of re-submission by the prisoner of complaint at stage 2; 7 weekdays for a Stage 2 response; 10 weekdays for a stage 2 response to complaint against the member of the staff; 10 weekdays for a stage 2 response to complaint involving another establishment; within one week of receiving stage 2 response in case of re-submission by prisoner of complaint at stage 3; 7 weekdays for a Stage 3 response; 10 weekdays for a Stage 3 response to complaint against member of staff; 10 weekdays for a Stage 3 response to complaint involving another establishment; 7 weekdays in case of confidential access to the governing governor; 6 weeks in case of confidential access to the Area Manager; within three months of the adjudication in case of submission of adjudication appeal by prisoner; 6 weeks for a response to an adjudication appeal and for a response to complaint about a reserved subject.

[78] Where it take longer to investigate a complaint, the prisoner will receive a reply explaining the reason for the delay.

[79] Civil Procedure Rules, Rule 54. 17.

[80] Civil Procedure Rules, Rule 54. 18.

[81] Prison Service Orders 2510, para 8. 2. 3.

[82] Prison Service Orders 2510, para 9. 4. 1.

[83] R v Secretary of State for the Home Department ex p Tarrant and others, QB, 251, 1985.

[84] “A disclosure with lawful authority only if the disclosure is made for the purposes of any proceedings, whether criminal or civil and whether arising under, or by virtue, of this Act”, Sec. 59 (2), Data Protection Act, 1999.

[85] Rule 50A, Observation of prisoners by means of an overt closed circuit television system, Prison Rules 1999.

[86] I am indebted to Simon Creighton and Hamish Arnott for the exhaustive assessment of this issue, see S. Creighton and H. Arnott, Prisoners, Law and Practice, cit. p. 639.

[87] Prison Service Orders 2510, para 11. 3. 7.

[88] “Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document. The Human Rights Act 1998 will make three changes to this scheme of things. First, the principles of fundamental human rights which exist at common law will be supplemented by a specific text, namely the European Convention. But much of the Convention reflects the common law. That is why the United Kingdom government felt able in 1950 to accede to the Convention without domestic legislative change. So the adoption of the text as part of domestic law is unlikely to involve radical change in our notions of fundamental human rights. Secondly, the principle of legality will be expressly enacted as a rule of construction in section 3 and will gain further support from the obligation of the Minister in charge of a Bill to make a statement of compatibility under section 19. Thirdly, in those unusual cases in which the legislative infringement of fundamental human rights is so clearly expressed as not to yield to the principle of legality, the courts will be able to draw this to the attention of Parliament by making a declaration of incompatibility. It will then be for the sovereign Parliament to decide whether or not to remove the incompatibility. What this case decides is that the principle of legality applies to subordinate legislation as much as to acts of Parliament. Prison regulations expressed in general language are also presumed to be subject to fundamental human rights. The presumption enables them to be valid. But, it also means that properly construed, they do not authorise a blanket restriction which would curtail not merely the prisoner’s right of free expression, but its use in a way which could provide him with access to justice”, R v Secretary of State for the Home Department ex p Simms, Lord Hoffman.

[89] Human Rights Act 1998, Sections 3-4.

[90] Golder v. The United Kingdom, Application no. 4451/70, 21 February 1975.

[91] The Commission unanimously expressed the opinion that Article 6 para. 1 guarantees a right of access to the courts and that in Article 6 para. 1, whether read alone or together with other Articles of the Convention, there are no inherent limitations on the right of a convicted prisoner to institute proceedings and for this purpose to have unrestricted access to a lawyer; and that consequently the restrictions imposed by the present practice of the United Kingdom authorities are inconsistent with Article 6 para. 1. The Commission furthermore held that the right of access to the courts guaranteed by Article 6 para. 1 is not qualified by the requirement “within a reasonable time”, ibidem, para 21.

[92] R v Board of Visitors of Hull Prison ex p St Germain, CA 1 January 1979, QB 425.

[93] Ibidem. Raymond v Honey opens to the same perspective, the case arose from the action of a prison governor who blocked a prisoner’s application to a court. The House of Lords affirmed that “under English law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication”, Raymond v Honey, [1983] 1 AC 1, p. 10. Reiterating the principle that a prisoner remains invested with all civil rights which are not taken away expressly or by necessary implication, in R v Secretary of State for the Home Department, Ex p Anderson, Robert Goff LJ stated that “at the forefront of those civil rights is the right of unimpeded access to the courts; and the right of access to a solicitor to obtain advice and assistance with regard to the initiation of civil proceedings is inseparable from the right of access to the courts themselves”, Queen’s Bench Divisional Court, R v Secretary of State for the Home Department, Ex p Anderson [1984] QB 778, p. 790.

[94] R v Board of Visitors of Hull Prison ex p St Germain, CA 1 January 1979, QB 425.

[95] R v Secretary of State for the Home Department ex p Mc Avoy, 1984. In this case the court reviewed the legality of the transfer of a remand prisoner from Brixton to Winchester Prison. Whilst Webster LJ was clear that the transfer decision was reviewable, overriding security reasons led him to refuse to quash the decision.

[96] R v Deputy Governor of HMP Parkhust ex p Leech, 1988.

[97] R v Deputy Governor HMP Parkhust ex p Hague; Weldon v Home Office, 1992.

[98] HRA 1998, Section 3.

[99] HRA 1998, Section 4.

[100] Ezeh and Conners v United Kingdom, Applications nos. 39665/98 and 40086/98, 9 October 2003.

[101] W, B and R. v United Kingdom, Application no. 9580/81, 8 July 1987.

[102] R v Bieber, 23 July 2008, [2009] 1 WLR 223.

[103] R v Newell and R v Mc Loughlin, 24 January 2014, EWCA Crim 188, 2014.

[104] Giuseppe Martinico uses this expression in his essay “Constitutional Courts (or Supreme) and ‘functional disobedience'” edited by “diritto penale contemporaneo”, G. Martinico, “Corti Costituzionali (O Supreme) e ‘disobbedienza funzionale’”, http://www.penalecontemporaneo.it/upload/1430150015MARTINICO_2015.pdf.

[105] See ECtHR, Dialogue between judges, “Implementation of the judgments of the European Court of Human Rights: a shared judicial responsibility?”, Proceedings of the Seminar 31 January 2014, Strasbourg, http://www.echr.coe.int/Documents/Dialogue_2014_ENG.pdf.

[106] R (Greenfield) v Secretary of State for the Home Department, [2005] UKHL 14, 16 February 2005.

[107] “The Court recalls that it is well established that the principle underlying the provision of just satisfaction for a breach of Article 6 is that the applicant should as far as possible be put in the position he would have enjoyed had the proceedings complied with the Convention’s requirements. The Court will award monetary compensation under Article 41 only where it is satisfied that the loss or damage complained of was actually caused by the violation it has found, since the State cannot be required to pay damages in respect of losses for which it is not responsible”. ECtHR, Kingsley v. The United Kingdom, Application no. 35605/97, 28 May 2002, para 40.

[108] “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”, Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5.

[109] Hutchinson v. the United Kingdom, cit. The Hutchinson decision overturns the Vinter judgement. From a theoretical point of view, in the perspective of the ECtHR prior to Hutchinson: 1) there must be a review mechanism in place not limited to compassionate grounds; 2) the prisoner must be told when the review will take place; 3) the prisoner must be told what he must do to have a prospect of release and what are the criteria that the reviewer will apply when considering release. Visiting the UK government website, it is possible to find the following statement: “Whole life term means there is no minimum term set by the judge and the person is never considered for the release”. This is the same position of the Sentencing Counsel for England and Wales and of the Law Commission. In the Hutchinson hearing, Judge Pinto de Albuquerque pointed out the contrast of the arguments held by the Attorney General before the Grand Chamber with the official position of the United Kingdom arising from the website. As emphasized by the solicitor of Mr. Hutchinson before the Grand Chamber, “a more compelling argument relating the real nature of the whole tariff order is that the number of the prisoners released is akin to zero”. ECtHR, Grand Chamber, Hutchinson hearing, Strasbourg, 21 October 2015.

[110] The interventions of the judges and of the applicant’s solicitor in the Hutchinson hearing before the Grand Chamber deal with these issues.

[111] In sum, disciplinary charges are heard by governors (directors or controllers in private prisons) where the charge is insufficiently serious to justify a punishment of additional days. Where the charge is serious enough potentially to warrant an award of additional days, it is referred to an Independent Adjudicator for hearing. The Prison Rules require the governor to determine whether the charge is so serious that additional days should be awarded for the offence, if the prisoner is found guilty and if so, it must referred to an Independent Adjudicator. Therefore, prisoners serving life sentences who cannot receive additional days on their sentences will ordinary never have their cases referred to an Independent Adjudicator.

[112] ECtHR, Golder v The United Kingdom, cit.

[113] ECtHR, Ezeh and Connors v The United Kingdom, cit.

[114] R v Bieber, 23 July 2008, [2009] 1 WLR 223.

[115] R v Newell and R v Mc Loughlin, cit.

[116] R (Adelana) v Governor of HMP Downview and Secretary of State for Justice, [2008] EWHC 2612, (Admin).

[117] In the light of his experience, a solicitor interviewee gives this perspective on the judicial review.

[118] Annual Report, HM Chief Inspector of Prisons, 2014-2015, p. 43.

[119] Prison and Probation Ombudsman from England and Wales, Independent Investigations, Learning from PPO Investigations: Why do Women and young people in custody not make formal complaints, March 2015.

[120] Focus groups were held in secure training centres (STCs), young offender institutions (YOIs) and women’s prisons.

[121] Prison and Probation Ombudsman from England and Wales, Independent Investigations, Learning from PPO Investigations: Why do Women and young people in custody not make formal complaints, cit.

[122] HM Inspectorate of Prisons, “Report of a review of the implementation of the Zahid Mubarek Inquiry recommendations”, London HMIP, 2014.

[123] Prison and Probation Ombudsman from England and Wales, Independent Investigations, Learning from PPO Investigations: Why do Women and young people in custody not make formal complaints, cit.

[124] Annual Report, HM Chief Inspector of Prisons, 2014-2015, p. 43.

[125] Nigel Newcomen observed that where, for example, statutory entitlements have been lost such as access to fresh air, to the library or gym, the real-life experience for prisoners on wings suffers quite considerably and it has been resulted in terms of complaints through to his office, Correspondence with Committee Secretariat, http://www.publications.parliament.uk/pa/cm201415/cmselect/cmjust/309/309.pdf.

[126] Prison and Probation Ombudsman from England and Wales, Independent Investigations, Learning from PPO Investigations: Why do Women and young people in custody not make formal complaints, March 2015 .

[127] Ibidem.

[128] Punishment in Prison: the World of Prison Discipline, Howard League for Penal Reform, 14 December 2015.