Back in April, the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) published a report following a recent ad hoc visit to the UK.
This targeted follow-up visit focused on the persistently high levels of violence in the local male adult Prisons and Juvenile Detention Centres. The visit followed up on serious concerns raised in the CPT’s report following the April 2016 visit to the UK.
A delegation for the Committee inspected three local male prisons (Liverpool, Wormwood Scrubs and Doncaster) and three Youth Detention Centres, (Feltham, Cookham Wood and Rainsbrook) between 13th and 23rd May 2019.
Reference to violence in prisons is often to fights between prisoners or assaults by prisoners on prison staff. The CPT commented on both issues and recommended that the UK authorities ensure that there be far greater investment in preventing violence “to bring prisons back under effective control of the staff, in order to halt and reverse the high levels of violence”.
But the CPT also commented on the prevalence of unprovoked and unjustified infliction of violence perpetrated on prisoners by staff.
The CPT recognised that it may, on occasion, be necessary for prison staff to use force to control violent and/or recalcitrant prisoners whose behaviour may otherwise constitute a danger to themselves and others. Nonetheless, the force used in such circumstances must be lawful, proportionate and no more than strictly necessary.
During their visit however, the delegation encountered a number of examples of unprovoked and unjustified infliction of violence on prisoners by staff and concluded that events of this nature were unlikely to be isolated incidents.
To compound matters, the delegation also found that when challenged, those staff members accused of assault often produced detailed accounts of their behaviour in ‘Use of Force’ forms in which they claimed that they had been obliged to use protective strikes, but all too often CCTV or Body Worn Camera footage was not available to allow independent verification of those accounts.
The CPT recommended that the UK authorities not only undertake a proper investigation into all allegations of ill-treatment but also institute measures to ensure that all Prison Officers understand that ill-treatment is unacceptable and unprofessional and that it would result in severe disciplinary sanctions and/or criminal prosecution.
My own experience bears out the concerns of the CPT that unlawful use of force on prisoners by prison staff is a real and present danger in prisons throughout England and Wales.
Indeed, I have just settled a claim for James O’Brien. Back in August 2016, James was serving time at HMP Swaleside.
He secured a key worker position in the kitchens and was a valued member of the prison kitchen inmate staff.
On the morning of 24 November 2016, James was assaulted by a senior officer. As is often the case, there was a dispute between James’ account and the prison officer’s version of events. I will set out below what was alleged (and admitted) by the Prison authorities in their response to the claim I brought on James’s behalf.
That morning, it was alleged that James had been banging on the inside of his cell door and had been verbally abusive to an Officer when he was asked to stop. At this point, James was not to be unlocked because other prisoners were on the landing being fed. As a result of James’ behaviour, Supervising Officer (“SO”) McDermott directed that 3 Officers should serve James his lunch at his cell door, instead of at the servery with other prisoners. Those 3 Officers went to James’ cell with James’ lunch. The cell door was opened. James stepped forward and took his food, and then placed his foot in the door to prevent it from being closed. He demanded an explanation for why he was being served his meal in his cell. The Officers attempted to explain that it was due to his abusive behaviour earlier that day. James refused to move his foot out of the door and shot the bolt of the door to prevent it being closed.
SO McDermott was contacted to attend and as requested did so and spoke with James, but James continued to protest that he was being treated unfairly. SO McDermott asked for 2 more Officers to attend to assist. It was alleged that James became increasingly aggressive and, holding his left hand behind his back, stated “The first Officer to lay hands on me will get slashed” or words to that effect. The Officers present alleged that they genuinely and reasonably believed at this point that James had a sharp or bladed weapon that he was concealing behind his back and intended to use it on them.
The Prison Officers entered the cell, restrained James and forced him onto his bed. With James under control, the Officers tried to encourage him to calm him down so the restraint could be ended. Even on the account of the Officers, it was accepted that James was calming down at that point, and it was not disputed that they had him completely under control.
However, SO McDermott then entered the cell and without warning, and whilst James was being held down on the bed by his fellow Officers, punched James hard in the face, in the region of his left eye. James started to shout “Who banged me? I’ve been banged” and began to resist the restraint actively again. Nonetheless, the Officers were able to progressively release the restraint and left the cell.
In the Officers’ accounts, it was alleged that at this point James produced a ‘bladed article’ from his trousers and moved towards the cell door.
However, this account – that James had a weapon in his possession- was significantly undermined by the fact that James was ‘unlocked’ after lunchtime and allowed to attend to his usual duties in the kitchen, with no suggestion that his cell was searched for a weapon, that any weapon was confiscated from James or that he was charged with possession of such a weapon.
I consider those undisputed facts to be persuasive evidence of “embellishment” of the Officers’ accounts of what had happened, to attempt to justify the gratuitous force used against James; certainly James himself denied ever having been in possession a of weapon during this incident.
James was subsequently referred to healthcare, who advised him to collect an ice pack from the treatment room and to contact healthcare with any other concerns. They did not prescribe any medication but noted bruising and swelling to his left eye, albeit with no visual impairment
As a result of James’ allegation, an investigation was conducted by the Prison Governor, which involved interviewing the staff involved. The Governor found that there was a case to answer against SO McDermott for punching James. He was due to attend a disciplinary hearing on 15-17 March 2017, but resigned prior to that hearing taking place.
Whilst continuing to maintain the allegation that James had a knife, in response to the claim the Prison admitted that SO McDermott had unlawfully assaulted James when he punched him in the face.
Fortunately James’ injuries were relatively minor, a black eye for a few weeks, the shock and upset of the incident. Notwithstanding this, I settled James’ claim for £7,500 plus costs. The settlement reflected not just the physical injuries and shock and upset but also an allowance for aggravated and exemplary damages, i.e. additional damages claimed to reflect that SO McDermott was a senior Prison Officer, that his conduct was arbitrary, intimidating and oppressive and was an affront to the Rule of Law and to civilised values in a democratic society.
My personal view is that the Prison authorities were keen to settle James’s claim as quickly and fully as possible, in light of the likelihood of the Court concluding that not only had SO McDermott assaulted James, but that he and other Officers had deliberately lied about the ‘bladed article’ so as to attempt to justify what had been done to my client.
Furthermore, and as is typically the case, the Prison staff had not taken the simple steps of operating body cameras during the incident, which would so easily have certified whether their allegations against James were true or not. A cynical, but perhaps all too accurate view of this is that staff habitually avoid filming such encounters so as to leave themselves ‘room for manoeuvre’ when it comes to justifying their actions.
Unnecessary violence by Prison Officers on prisoners is reprehensible, especially in circumstances such as this where James was under control and calming down, but far more invidious is the suspected culture amongst Prison staff of telling lies to cover up such unlawful violence by their colleagues. Whilst that kind of toxic environment persists inside the Prison system, the CPT will have their work cut out to encourage real change.
ALL NAMES CHANGED