Judicial Review to consider state oversight of private prisons

By agency reporter
July 4, 2018

The Howard League for Penal Reform has provided evidence concerning the state’s failure to monitor the practices of private companies in the criminal justice system, in a High Court case scheduled to begin in London on 4 July 2018.

A witness statement by the charity’s Chief Executive, Frances Crook, has been prepared to assist the court in the case of R (Faulder and others) v Sodexo Limited and the Secretary of State for Justice.

The judicial review claim relates to a series of unlawful strip-searches in a private prison.  The case will focus on the failure by the Ministry of Justice to ensure adequate systems were in place in the private prison to prevent breaches of the positive obligations owed to prisoners under Articles 3 and 8 of the European Convention on Human Rights.

The case raises concerns about the state’s ability to monitor private prisons and hold to account the companies that run them.

Frances Crook, Chief Executive of the Howard League for Penal Reform, said: “As more and more state functions in the criminal justice sector are delegated to private companies, this important case raises pressing questions about the state’s ability to spot damaging and unlawful practices and stop them happening.

“The consequences of these failures of oversight include serious problems in secure training centres designed to hold vulnerable children, an investigation by the Serious Fraud Office into the management of electronic tagging, privatised probation services that have been criticised by the National Audit Office, and the failure of private companies to adequately maintain prisons.”

The case concerns a series of unlawful strip-searches that took place in Sodexo-run Peterborough prison in July and September last year.

In her witness statement, Frances Crook considers the monitoring of private prisons by Independent Monitoring Boards (IMBs), whose members are volunteers, and the official watchdog, Her Majesty’s Inspectorate of Prisons (HMIP).

The statement says that IMB reports often do not pick up on pressing issues. The annual IMB reports from Peterborough prison for the last four years do not mention strip-searching at all. Nor do the annual IMB reports from Bronzefield, a prison operated by the same company.

IMBs across England and Wales are experiencing difficulties in recruitment. In May this year the government revealed that one-third of IMB posts were vacant.

Frances Crook’s statement outlines two key weaknesses in the system by which HMIP monitors prisons – the watchdog visits prisons infrequently, which means that problems can go unchecked for years at a time; and there is no obligation on the State to implement its recommendations.

All public and private prisons are audited in a three-year cycle by Her Majesty’s Prisons and Probation Service, formerly known as the National Offender Management Service. In her statement, Frances Crook suggests that, without some idea of the criteria prisons are being measured against, it is difficult to have faith in the audit’s positive conclusions.

The statement also considers the role of controllers, who are largely responsible for contractual compliance. Frances Crook suggests that, as they work in private prisons, alongside the employees of the private contractors, controllers may not be best placed to hold their colleagues and the management of the prison to account in a meaningful way.

Frances Crook, Chief Executive of the Howard League for Penal Reform, said: “In my experience, when effective, these mechanisms can shine a light in dark corners. However, in my view, they are less effective in leading to meaningful and urgent change than is required to safeguard the fundamental rights of prisoners, and ensure that prisons comply with the United Kingdom’s human rights obligations.

“In fact, I can think of no other field where damning findings made by inspectorates are routinely ignored; where the same problems are reported year after year, are still not addressed, and have no repercussions for the prisons.

“It would be unthinkable in the context of health services for the Care Quality Commission to make serious and recurrent findings that go unrectified.

“However, countless bodies have raised serious and grave concerns about prisons for years that have not resulted in adequate change.”

* Howard League for Penal Reform https://howardleague.org/

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