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Nigel Newcomen CBE, Prisons and Probation Ombudsman

Minutes of the Inaugural Meeting of the All-Party Group on Penal Affairs, held on 11 July 2017 in Committee Room 4, House of Lords

Nigel Newcomen CBE, Prisons and Probation Ombudsman

Lord Ramsbotham (in the Chair)
Peter Bottomley MP
Lord Bradley
Sarah Champion MP
Lord Fellowes
Kate Green MP
Lord Hailsham
Baroness Healy of Primrose Hill
Lord Hodgson
Lord Hylton
Lord Ponsonby
Andrew Selous MP

Mark Day, Clerk to the Group, opened by welcoming members to the inaugural meeting of the parliamentary group for this session. Lord Ramsbotham and Dominic Grieve MP had both announced their willingness to stand again for election as co-chairs. There being no other nominations, he had pleasure in declaring them duly elected.

Lord Ramsbotham assumed the chair, and continued with the appointment of other officers. Three vice chairs, Sarah Champion MP, Kate Green MP, and Norman Lamb MP, had announced that they were happy to stand again. Sir Edward Garnier had stood down as an MP before the election. However Andrew Selous MP had agreed to stand in his place. Lord Hodgson had agreed to stand again as Secretary. All were duly elected.

A statement of assets and liabilities for the previous group had been produced and circulated to the officers of the previous group and agreed by the chair. He would like to thank all the officers and staff for their support; also Edward Garnier for his support over many years; the trustees of the Barrow Cadbury Trust for their continued support; the Prison Reform Trust for providing the secretariat, Mark Day and Justin Elder; and Julia Braggins for taking the minutes.

The main business of the evening was to hear Nigel Newcomen, the Prisons and Probation Ombudsman. He had hoped to be able to announce that at last, as a result of the Prisons and Courts Bill, this would be a statutory post. But unfortunately that Bill had died at the election. However this was definitely something that should be tackled. Nigel Newcomen had been a distinguished Ombudsman during his tenure, and he was delighted to invite him to address the meeting.

Nigel Newcomen: I am grateful to the APPAG for the invitation to speak this afternoon. After more than 6 years as Prisons and Probation Ombudsman, the invitation has allowed me to look back over my tenure and draw up some observations. These observations are offered through the lens of the two-fold remit of my office, which is: first, to independently investigate all deaths in prison and immigration custody, child custody, and probation approved premises. And, second, to independently investigate complaints from those in adult and child custody, and on probation supervision.

Unfortunately, and without wanting to sound too melodramatic, looking around I found a prison system still in a degree of crisis. Some statistics evidence this view: In 2016-17, self-inflicted deaths in custody rose 11%. Other types of death rose 23%, and eligible complaints to the Ombudsman rose 9%. These statistics, particularly when combined with high levels of violence and incidents of significant disorder over the past year, indicate a prison system still yet to emerge from crisis. Fortunately, the previous Government recognised the need for reform and began a number of changes to the prison system, notably a reversal of some of the previous reduction in resources and some important innovations.

However, the problems are significant and systemic, and the previous Secretary of State was right to insist that improvement would take time. I would also argue that these reforms will founder unless they are underpinned by a transformation in prison safety. One of the systemic failures that has particularly frustrated me in my time in office has been the apparent inability of prisons under pressure to learn the lessons from my investigations or to sustain improvement based on that learning.

And there is plenty of learning available, not least the copious amounts generated by my office. Individual investigations into deaths or complaints provide important individual route maps for particular establishments. And – in what I hope is one of the key contributions of my time in post – there is now a substantial library of Prison and Probation Ombudsman’s thematic learning. In short, I believe it is not lack of knowledge, about what needs to change but a lack of effective action that is at issue. In my view, the Government’s reform programme needs to address this anomalous situation. Indeed, my recommendations and thematic lessons rarely say anything new – I have been saying many of the same things for many years.

Nor are prisons, or the other services I investigate, hostile or unsympathetic to what I have to say. Almost all my recommendations were accepted last year and action plans put in place for their implementation. But, when my colleagues at Her Majesty’s Inspectorate of Prisons followed up progress on my fatal incident investigation recommendations, too often they found a lack of effective action. Similarly, my investigators were too often called to new fatal incidents, only to find that previous lessons had not been learned by the prison – with tragic consequences.

This level of repeat failure should not be allowed to continue. As I leave office, I must hope that prisons and their hard-pressed staff can emerge from a uniquely challenging period and address the well-evidenced concerns of independent scrutiny bodies such as mine.

Let me now look in a bit more detail at the depressing number of suicides in prison. Self-inflicted deaths rose 11% last year. While I welcome the fact that this rate of increase was less rapid than the 34% increase the year before, it was still unacceptably high for what – in theory at least - were preventable deaths. It was particularly depressing that there were more self-inflicted deaths among women. And there was even one apparently self-inflicted death in my newest area of responsibility: secure children’s homes.

As various of my learning lessons publications have illustrated, I do not think there is a simple, single explanation for these continued increases: each self-inflicted death is the tragic culmination of an individual crisis for which there can be a myriad of triggers. Of course, financial cutbacks, staff reductions and regime restrictions have all reduced some of the factors that we know protect against suicide and self-harm, such as activity, time out of cell and interaction with others. Many staff are under severe pressure and caring for the vulnerable may require time that is all too scarce.
However, the evidence linking austerity and death is inconsistent. For example, spikes in self-inflicted deaths have also occurred in high security prisons and private prisons, neither of which have had the level of cutbacks suffered elsewhere.

Of course, some major themes do emerge from my investigations and thematic studies that need to be acted upon. In particular, there is the pervasive problem of mental ill-health. My 2016 learning lessons study of mental ill-health in prison found that 70% of those who took their own lives had an identifiable mental health problem. Worryingly, this mental ill-health was not always recognised by staff or, if recognised, not always well managed.

Another contributory factor to the increase in suicide in prison has been the epidemic of new psychoactive substances (NPS). My researchers have now identified 79 deaths between June 2013 and September 2016 where NPS use was a key issue. Of these deaths, 56 were self-inflicted. Establishing a direct causal link between NPS and the deaths is not easy. But my investigations have identified a number of cases where my clinical reviewers considered that NPS had led to psychotic episodes which resulted in self-harm. In other cases, NPS led to bullying and debt among the vulnerable, also resulting in self-harm. NPS is a scourge in prison, which I have described as a “game-changer” for prison safety. Reducing both supply and demand for them is essential.

But neither mental ill-health, nor the availability of NPS, wholly explain the rise in suicides in prison. Every case is an individual tragedy with numerous triggers. And, in such complex circumstances, the safety net of effective suicide prevention procedures is essential. Unfortunately, too often my investigations identify repeated failings in prison suicide prevention procedures.

These procedures (known as ACCT or assessment, care in custody and teamwork) are in many ways impressive. In particular, I support their aspiration that prison staff should take a holistic, whole prison approach to suicide prevention – not a narrow medical model. But such aspirations are resource intensive and prison staff frequently tell my investigators that these are resources they simply do not have. After all, these procedures were designed well over a decade ago when prisons had many fewer prisoners and many more staff.

The Prison and Probation Service needs to assure itself that its suicide prevention procedures are still deliverable and fit for purpose - or whether, as I fear, they need updating, streamlining and calibrating against available resources. Nevertheless, I pay tribute to the efforts of individual prison staff to support the vulnerable. My investigations rarely identify a fundamental lack of care or compassion among staff who support the suicidal – although this year did see the criminal prosecution of at least one member of prison staff for dereliction of duty in this regard. However, too frequently, I do find failures of management, weak procedures, poor information sharing, a lack of joined up working, gaps in training and poor emergency responses. Only by systematically addressing these failings will we stem what I have termed a rising toll of despair in prisons.

Unlike the rise in self-inflicted deaths, the reason for the even sharper (23%) increase in deaths of prisoners from natural causes is largely explained by the age-related ill health that attends a rapidly ageing prison population. This demographic shift has been dramatic, driven by increased sentence length and more late-in-life prosecutions for historic sex offences. As a result, the number of prisoners over 60 has tripled in 15 years and is now the fastest growing segment of the prison population. The projections are all upwards and there are predicted to be around 14,000 prisoners over 50 by June 2020. The challenge to the Prison and Probation Service is clear: prisons designed for fit, young men must adjust to the largely unexpected and unplanned roles of care home and even hospice. Increasingly, prison staff are having to manage not just ageing prisoners and their age-related conditions, but also the end of prisoners’ lives and death itself – usually with limited resources and little training.

Unfortunately, there has been little strategic grip of this sharp demographic change. Prisons and their healthcare partners have largely been left to respond in a piecemeal fashion. The inevitable result, illustrated in a learning lessons publication last month, is variable end of life care for prisoners and limited support for staff. In addition, my investigations continue to expose the inability of some prisons to adjust their security arrangements appropriately to the needs of the seriously ill. For example, it is unacceptable that I still find too many examples of prisons unnecessarily and inhumanely shackling the terminally ill – even to the point of death.

However, I must add that I have also seen examples of impressively humane care for the dying by individual prison staff, as well as glimpses of improved social care and the development of some excellent palliative healthcare services – but the picture is inconsistent and progress slow. Above all, I regret that there is still no properly resourced older prisoner strategy, to drive consistent provision across prisons. This is something I have called for repeatedly and without which I fear my office will simply continue to expose unacceptable examples of poor care of the elderly and dying in prison.

Let me now say a few words about prisoner complaints. I believe that the ability to complain effectively is integral to a legitimate and civilised prison system. A meaningful internal complaint process, overseen by an independent adjudicator, such as my office, is an important means for prisoners to ventilate grievances legitimately. Sound complaint processes can also help avoid illegitimate explosions of anger about perceived failings, which have been all too common in prisons in the past year.

Unfortunately, while many reasons to complain remain, the processes for doing so are often poor and prisoner confidence in the complaint process is low. This is a toxic combination. Prison reform may be underway, but the challenges facing the penal system remain. The typical experience for many prisoners is still one of crowding, lack of safety, limited activity and an over-stretched staff struggling to meet need. While there may be scant public sympathy, prisoners’ legitimate expectations are often not being met. This is reflected in the 9% increase in eligible complaints to my office last year. In a further sign of these strains, the proportion of complaints I uphold because prisons got things wrong, is now much higher than when I took office. In 2016–17, I upheld 39% of complaints by prisoners, compared to only 23% in 2011–12.

I do not believe that these figures reflect my staff becoming more sympathetic to prisoners, but instead they simply reflect prison staff making more mistakes, not learning lessons from my previous investigations and not resolving issues at a local level. Many of the complaints reaching my office should never have been escalated to me. Instead, they should have been resolved at source by an effective local complaints process. When prisons fail to manage complaints effectively, it leads to frustration for prisoners, places additional burdens on staff and uses up my scarce resources, which could be better deployed on more serious or complex cases.

I believe that the prison reform agenda needs to include a requirement on each prison to have a fully functioning complaints process. Nor is it only prison complaint processes that need to improve. A number of community rehabilitation companies (CRCs) have failed to ensure an effective complaints process for offenders in the community, despite this being a contractual obligation. This is something I have raised formally with the Chief Executive of HM Prison and Probation Service.

I also believe that, to avoid unfairness, reforms to give greater autonomy to prison governors, need to be balanced by clear statements of minimum standards for prisoners. Without clarity as to these minimum standards and how they are to be adhered to, disparity between prisons will be entrenched, prisoners’ legitimate expectations not met, confrontation made more likely, engagement in rehabilitation undermined and independent dispute mechanisms like my office flooded with even more complaints.

These complaints range from the day-to-day frustrations of prison life to serious allegations of abuse. All must be dealt with fairly and objectively. In many cases, all parties can be encouraged to agree an appropriate outcome, in other cases the unreasonable expectations of prisoners must remain unsatisfied, while in still other cases, staff must be held to account for serious failings – but, in all cases, my staff seek to ensure a fair and just outcome.

Let me now look briefly at some other aspects of my efforts over the past 6 years to support prison staff to deliver safer and fairer custody and offender supervision. I am pleased that I have been able to deliver on my commitment to the Justice Select Committee, at my appointment hearing, that I would create a library of thematic learning to complement individual investigations. Since 2012, there have been nearly 40 publications designed to distil learning from investigations and support the organisations I investigate to improve safety and fairness.

In the past year, there have been seven learning lessons publications. Two provided important analyses of how prisons should respond to violence. One set out lessons from my – mercifully rare – investigations into homicide in prison. The other, provided lessons to minimise the inappropriate use of force by an embattled staff having to deal with rising levels of assault. Other bulletins looked at how to support particularly vulnerable populations: children, transgender prisoners, women, and older prisoners, including those with dementia.

 These publications have been well received but their value relies on custodial and probation staff actually implementing the learning. This is why I have explored new ways of disseminating this learning and making it accessible, for example, by supplementing my publications with articles, leaflets, posters and forays into social media. And for the past 3 years, I have also held learning lessons seminars for prison staff. These were well attended and, I hope, encouraged the practical implementation of learning from my investigations.

Let me wind up with a familiar lament. I have to note that the incessant growth in demand for my office’s services has not been accompanied by any increase in resources. In fact, my budget is exactly the same as when I took office, despite an 89% increase in deaths to investigate. Fortunately, my staff have risen to the challenge. Indeed, it is remarkable that 100% of fatal incident draft reports have been on time for the past 2 years. This is in stark contrast to when I arrived in 2011, when 86% of reports were late, even though there were many fewer investigations and proportionately more resource.

Nor is this a mere bureaucratic achievement. Timely investigations give earlier information to bereaved families – and potentially hasten closure, they help expedite the inquest system, and – fundamentally – they ensure expeditious learning is provided to those I investigate. It is gratifying that this performance was recognised in 2016 by the first ever national civil service award for customer service.

Finally, I was grateful that previous Ministers acted on my repeated requests and began the process of placing my office on a statutory footing. It is remarkable that as an independent scrutiny body in a challenging context, I have no right of access to prisons, people or documents. This omission was nearly rectified. Sadly, the Prison and Courts Reform Bill, which included the changes, fell once the general election was called. The provisions would have made a substantive difference to the actual and visible independence of the Prisons and Probation Ombudsman and given my successor important practical protections. I hope legislative space will be found to reintroduce the provisions in the new Parliament – but I know you are consumed by other matters.

However, even without this long awaited legal underpinning, I know that my successor will inherit a robustly independent organisation and a staff who share my unwavering commitment to making custody and offender supervision safer and fairer. It has been an honour to serve as ombudsman and an honour to be able to speak to you again. Thank you.

Lord Ramsbotham thanked Nigel Newcomen very much for his presentation and opened the floor to questions.

Lord Fellowes said that he suspected that the Government were relieved that at least prison numbers, at 85,000, were not going up. Would the speaker agree?

Nigel Newcomen responded that whilst it was true numbers were not being much discussed at present, there continued to be pressures on the system which were almost unmanageable.

Lord Fellowes asked whether there was any sign of the issue of prisoners on indeterminate sentences being settled.

Nigel Newcomen said that whilst there had been legal support to remedy the situation, there was still the operational requirement for prisoners to demonstrate that they had mitigated the risk they had posed. The Parole Board was reflecting on what it could do, and the Prison Service had set up a task force to try to ensure it was putting programmes in place for those who had been in prison long past their tariff dates. But he feared that clearing the log jam would take some time.

Lord Hailsham enquired whether he knew the numbers involved.

Nigel Newcomen said that he did not.

Peter Clarke, HMCIP, said there were around three and a half thousand prisoners involved.

Lord Ramsbotham said he was glad the speaker had raised the subject of the CRCs. He understood that a report on the workings of the contract had been written, but that the previous Secretary of State had delayed its publication. Was there any indication as to when it would appear? The CRCs appeared to have failed on a number of points, one of which was the creation of a complaints procedure.

Nigel Newcomen said that when his staff explored why there were so few complaints coming through from offenders on supervision in the community it appeared that there was no advertised complaints process available, in many cases. He had formally raised this with the CEO of the Prisons and Probation Service, who had initiated an audit to ensure that this was rectified.

Lord Ponsonby mentioned that he was a magistrate in Inner London, and had noticed that the courts were not receiving the level of breaches that had been customary. Perhaps if offenders were not being breached they were not likely to complain.

Lord Hailsham said he spoke as an admirer of the independent monitoring boards (IMBs). In his view they did not have the impact that they might. What could be done to enhance this?

Nigel Newcomen said he too was a supporter of the IMBs and worked closely with them whenever he could.

Lord Ramsbotham invited Bishop Peter Selby, a past President of the IMB National Council, to comment. Bishop Peter said that his knowledge was out of date: he had retired in 2013. However he knew that a matter of constant discussion was to ensure that the IMB did not become too close to the prison – to become part of the furniture.

Peter Clarke HMCIP, said that he thought that there must be opportunities to derive more value from IMBs. They were in the prison every day, whilst the Inspectorate was there only once every three years. He did not think the Scottish model, of conjoining the IMBs with the Inspectorate, was the right one. However he thought the localism of IMBs was their great strength, and he looked forward to better information exchange.

Nigel Newcomen added that there was also scope for IMBs to follow up on the recommendations made in his reports on deaths in custody investigations. There was value in all three independent scrutiny bodies asking prisons why recommendations had not been acted upon.

Lord Ramsbotham recalled that when he was Chief Inspector his office used to keep a chart of all the IMB reports, to see which raised common themes, and which issues were specific to individual prisons. Often a call from the Chair of the IMB was the trigger for an inspection.

Peter Dawson, PRT, noted that the speaker had drafted a code of minimum standards for prisons in the 1990s, which had gone to the then minister for justice. He wondered whether he had had any discussion with the current or recent Ministers on the need for such a code.

Nigel Newcomen responded that he had flagged it with the new Secretary of State, who was still reading himself in. The previous Secretary of State had appeared to like it. If we were devolving powers to governors, a balance needed to be struck. No statement existed of the minimum standards prisoners could expect across the prison estate. This would become increasingly important, and he would continue to raise the need for such a code in the final weeks of his tenure.

Sarah Champion MP expressed her surprise and dismay that the Government were going ahead with plans for new women’s prisons, especially since they were to be built alongside prisons for men. Could the speaker comment on this plan?

Nigel Newcomen said that although he did not profess to an overarching view of all prison issues, the tragic increase in female deaths in custody stood out, in his area of work. We were clearly not providing safe and adequate provision for women at present, and we needed to address the numbers issue. He was ambivalent about the proposed new smaller units. Following the closure of big women’s prisons such as Holloway, women were often held many miles from their homes, and this was damaging. If the only route to getting more, smaller units was to tag them onto male prisons, then there were possible models for that. However the Inspectorate would need to keep a close eye to ensure the women were not marginalised, alongside the big male institutions.

Juliet Lyon began by praising the speaker’s achievements in his role. She then asked about how far the Omudsman had had the power to hold government to account. She knew, for example, that he had warned of the dangers of imposing 30% staff cuts, in respect of the Government’s Article 2 obligations to protect life.

Nigel Newcomen reiterated that one of the most frustrating aspects of doing the job had been finding on return to an institution that his recommendations, which had been agreed and accepted, had not been implemented. A large part of that must be due to the acknowledged crisis in the prison system at the moment. However it was not a situation that could continue. Some had argued for a legal remedy, but the law was a blunt instrument, not conducive to the responsive empathetic approaches to caring for the vulnerable he recommended. The National Prison and Probation Service (NPPS) had invented a new audit process, though it remained to be seen whether this would expedite the appropriate action.

Oliver Lodge, NAO, wondered to what extent existing auditing procedures within the Ministry of Justice were or could be deployed to move things on.

Nigel Newcomen responded that, since this was a matter of life and death, it would be so much better if agreed recommendations were simply implemented, rather than waiting for another tragedy or a legal challenge.

Peter Clarke, HMCIP, responded that the role of the Audit Committee in the Ministry of Justice was to examine the reputational risk to the Prison Service. He had been surprised that there had not been more legal challenges regarding accountability in relation to deaths in custody.

Lord Hailsham suggested that perhaps the Justice Select Committee could examine this, given the free-standing nature of the NPPS.

Peter Clarke HMCIP responded that one of the hopes for the now lost Bill had been that the Minister could be held to account.

Sara Hyde, NHS Health in Justice, urged that, if the Justice Select Committee were to look at this, it was essential that the IMBs should be included.

Nigel Newcomen agreed that all public scrutiny bodies should be involved, to ensure potentially life-saving action. The Prison Service needed to deliver what it had said it would deliver. For example, regarding the ACCT process (suicide prevention) his staff were often told that prisons could not resource it. He had made recommendations to reinforce the ACCT process, the Prison Service had said it would do so, then staff said they did not have the resources. Then perhaps the ACCT process needed to be revised. But at present there was an unacceptable lack of progress.

Peter Dawson commented on a recent prison visit where he found two staff members filling in the ACCT forms for prisoners on the wing who were locked up for 23 hours a day. They would rather be spending their time helping those vulnerable men, but they knew they would be in a better position if a case came to court if that paperwork was completed.

Lord Ramsbotham thanked Nigel Newcomen most warmly. His six years in office had been distinguished, and the system could have moved on had his recommendations been realised. He had left a valuable legacy. He was seriously sorry that the Prisons and Courts Bill had been lost. He recalled a White Paper written by Kenneth Baker after the Strangeways Riots and the Woolf Report. It included ’12 Ways ahead for the Prison Service’. But no-one had implemented any of them. He had invited Liz Truss to revisit them. There was no doubt that the figures the speaker had produced on deaths in custody were very worrying. He had recently inspected prisons in Dubai and Abu Dhabi. Each had had just one suicide since 1995. Staff there put this down to the fact that all cells and wings were unlocked by day, and prisoners could circulate. He wondered how much our policy of locking people up for too long contributed to the high numbers of deaths in our prisons.