Sunday, 31 January 2016

An Interview with Nick Hardwick, HM Chief Inspector of Prisons

As he comes to the end of his five-year term of office as HM Inspector of Prisons, Nick Hardwick kindly agreed to be interviewed by Alex Cavendish for the Prison UK blog. Here is what he had to say about the challenges the Inspectorate has faced since 2010, what he himself has learned about our prison system and some advice he’d like to pass on to his successor, Peter Clarke.

Prison UK: Thank you for agreeing to speak to me and to the readers of this blog about your work as Chief Inspector.

Nick H: I think yours is one of the best blogs – and the most insightful – about prison life. It’s something I’ve turned to for information and perspectives. I know a lot of people read it, so I thought it would be a good way of communicating.

Prison UK: You have been in post as HM Chief Inspector of Prisons since 2010. What do you consider has been the most challenging aspect of the Inspectorate’s work during your term in office?

Nick H: My time as Chief Inspector has coincided with a deterioration in safety and conditions in prison and that is shown both by our inspection findings, but also by the data that NOMS [National Offender Management Service] and the Prison Service itself publishes, including the very concerning figures just published.

One of the challenges for us... one of the big debates we’ve had, is that we knew a lot of these issues were beyond the control of individual prisons. There a point where you think criticising a prison for the fact it was overcrowded and understaffed seems to be a criticism of the prison and its management when these issues weren’t an individual prison’s fault.

It sometimes felt unfair, but on the other hand we decided that if we weren’t describing as honestly and fully what was happening, it would be assumed we were saying what was happening was all right, when it wasn’t. It was difficult to chart the decline, but that’s what we felt we had to do.

Prison UK: In recent years the prison population in England & Wales has hit a record high of over 86,000 and although numbers have now fallen slightly, most prisons are at - or over – their certified capacity. What practical impacts have you seen on the stability and safety of prisons?

Nick H: It’s not for the Chief Inspector of Prisons to say how many people should be in prison, but it is for me to say that the facilities need to match the size of the population. Which they don’t.

People – particularly politicians – see overcrowding purely in term of physical overcrowding: two men crammed in a cell designed for one. Now that’s not acceptable and you go into some of these places where you have a tiny cell with an unscreened toilet and people are locked in there 23 hours a day. They may not be dangerous to each other, but they may just not get on.

That is unacceptable, but beyond that, what overcrowding means also is that prisons don’t have the activities places, the number of telephones on the landings, space in the showers, offender supervisors. It’s more than just physical space. It means that the resources for the population are not adequate to meet their needs.

So when people say they want prisons to do all these things – from rehabilitation to more education, to keeping prisoners safer to dealing with extremism – there are too many prisoners and not enough staff to do it. It’s important that we look at overcrowding beyond simply how many people there are in a cell to what is the capacity of a prison over a whole range of activities.

PrisonUK: I think it is fair to say that the relationship between HM Inspectorate and the Ministry of Justice has been strained in recent years. How has that tension affected the work of HMIP? Is the situation improving?

Nick H: It’s well known that I have had a pretty robust relationship with Chris Grayling and I think he’d say the same. If the relationship was strained, in some ways that’s as it should be. There should be a degree of tension between the Inspectorate and the Ministry.

We will sometimes be critical of things ministers are directly responsible for and they won’t like that. It’s fair enough for them to come back at us and say ‘we don’t agree with what you’re saying.’ For someone in my post, if you haven’t got the stomach for that, then you’re probably in the wrong job.

I’ve always thought it was important to preserve the independence of the Inspectorate. Sometimes it has been necessary to draw a line pretty firmly in the sand and that happened the other day in the Justice Committee. But I think that tensions and strains are a sign of things working themselves out… which is as it should be.

It is legitimate for an elected politician to want to ensure their view of the world is the one that is implemented. They are elected, I’m not. It is perfectly legitimate for me to say that there are certain standards below which you can’t fall and sometimes the way that gets worked out leads to a bit of a clash, but I don’t think that’s unhealthy. I think people should be worried if everything was sweetness and light the whole time.

We’ve had a stormy passage lately. A point of tension will come when the MOJ’s budgets are under threat, so they are looking at ours. I’ve made the point about our operational independence.

I hope people will see us as independent and when we are critical, we’re critical. But also when we are positive, that’s genuine and our independent view.

I think a lot of the things Michael Gove is talking about are absolutely right: more autonomy for governors; better focus on education; focus on decent conditions and looking at the juvenile estate. On one level it does feel like a new era. You listen sometimes to what he is saying and you think ‘crikey’. Now turning that into reality: that’s the big challenge to come, but the rhetoric matters. The tone at leadership level does filter through to what’s happening on the ground in prisons.

Even if there’s no policy changes and no strategic changes, if he is saying ‘that is what I want’ it will affect how staff behave. It empowers people.

Prison UK. One of the major criticisms of the British penal system is that there has been what many campaigners would claim is a move away from rehabilitation as a priority in favour of punitive ‘human warehousing’. Would you say that this is an accurate assessment or does rehabilitation still have a place?

Nick H: It is certainly the case. I remember going into one modern prison and it was on the outskirts of town on an industrial complex. Next to prison was a big yellow storage warehouse and I thought it was a very striking image. This prison was in an estate full of warehouses and you could argue that for a lot of the prisoners there, that is what was happening.

I was at a prison recently and at the end of the inspection, I did what I often do and climbed up onto the 3s – as far away from the office as I could get – and I just randomly went into a cell. There was an 18-year old young man in there. He’d done a relatively short sentence – it’s a local prison – three or four months. In that time, and I checked so I know this is true, he had done no activities. He’d been essentially locked up for 22 hours a days.

He was leaving the next day and he had no accommodation to go to. So looking at what was happening to him, ‘warehousing’ would be a pretty good description of it. He’d been kept somewhere… ‘stored’ for a bit and was going to be released. There are plenty of other examples where good things are happening, but that would be just one extreme.

You go to other places and there are people with very challenging behaviours and staff are trying to work on their activities, their behaviour, their family links and all that kind of thing, so it’s not just one picture. However, for too many prisoners, they can leave prison as if nothing has happened to them at all. They are simply kept there, out of sight for a bit and there is nothing happening that will make any difference for them when they leave. That’s bad for the prisoner, but of course it’s bad for the communities into which they are released, too.

Prison UK: Since around 2012 HMIP reports have been flagging up the increasing threat posed by New Psychoactive Substances (NPS) and other drugs to safety and security in our prisons. To what would you attribute this worrying trend?

Nick H: It’s important not to be under any doubt whatever about the havoc NPS and other drugs cause. You have people pushing them and the debt that is created as a result of the drugs trade in prison leads to violence, it leads to people feeling very insecure, self-harming and so on. There is a direct link between drug availability and violence.

I think NPS are one of the major threats to the stability and security of the prison system at the moment. Inspectors can’t really find out how these are getting in. We know some comes in over the wall, we know that some comes in through the gate, either with visitors, or prisoners themselves or with staff. Do we know the proportions, the extent of the problem? We only know what gets found and are prisoners going to tell us happily where the supply routes are? No, they’re not.

This is where tapping into the intelligence prisoners have is very important. It is also an issue that reveals the limits of the inspection process. An inspector should never walk away feeling that you understand completely what is going on… You can scratch the surface, but if there’s an organised supply and trade in drugs you’re not going to get to the bottom of that in a week – and it’s dangerous to think you can. We should leave a prison saying ‘we know what we found this time’ but I always leave worrying what we haven’t seen, what we’ve missed. Otherwise you’d be foolishly complacent.

Prison UK: You raised the issue of corrupt prison staff members (uniformed and civilian) playing a role in the drugs supply chain. Do you think there should be a greater focus on staff vetting for recruitment and monitoring staff debt, financial pressures, community ties?

Nick H: I think that is important, not least because it protects staff. If you have good systems in place, it enables staff who are being pressured to get involved a real concern that they might get caught. It helps by giving people a ‘get-out clause’.

A small number of corrupt staff can do a lot of damage. Someone described it to me as follows. It’s misleading to talk about ‘rotten apples’, but what is sensible to talk about is rotten orchards. You are not talking about the whole establishment, but you can often get a small group of staff on one location, perhaps with a charismatic ringleader. You may have others who may not be participating, but who are turning a blind eye and therefore are compromised and that is how bad things happen.

We had an investigation into what was going on going on at Medway and I think that’s a good example of the rotten orchard theory. There may be others bits of Medway that were fine, but you have a group of officers working together, where it’s more than just one or two rotten apples.

I also think one of the issues that is very important is that staff will get inveigled in. It will be suggested that if you want to be ‘part of the crowd’ or ‘one of the team’ then just turn a blind eye to this or that. And once you’ve done that, you’ve been caught because you are compromised.

I think you’ve got to give people involved in cases of minor transgressions some way of getting back to the right side of the line. You have to make a distinction, depending on the seriousness of the issue, but I think you have to give people who have been groomed or compromised a way back.

Prison UK: You mentioned earlier the latest MOJ statistics that recently came out. These made grim reading. Violence, self-harm, suicide – all up across the board. We know that debt is one of the main drivers of violence between prisoners, but why do you think this has risen since 2012? Is it just down to the effect of NPS?

Nick H: One of the issues with NPS is that it is a very attractive business proposition. It’s legal out in the community, but banned in prisons. The price differential in a prison is much greater than, say, for an opiate. People tell me that an opiate costs around four times inside what it would be out on the street. A legal high costs about ten times as much. However, the unit price remains quite small, so you have to sell a lot of it to make money.

The people who have the capacity to supply in bulk tend to be involved in organised crime. I think we are seeing NPS being pushed in a much heavier way than we see with other types of drugs. That has led to increased issues with debt.

What I’ve seen in a few prisons is that they are helping prisoners manage debt internally. I’ve seen some quite good schemes through violence reduction, but how do you help people manage these debts? Why has this got worse since 2012? Well, one of the things that has happened since then is the availability of NPS. So you absolutely prove cause and effect, but it is a pretty big coincidence!

We did an inspection of a prison that at the end of 2012 was performing very well. There is no mention of NPS in the report. We went back now. It’s still being run by the same people and in many ways it is pretty good, but levels of NPS are much higher and levels of violence are also much higher.

The critical thing is that prisons ought to do much more work with families on this. Sometimes it’s just making sure families are aware of the risk. Often, it will be family members who are under pressure to bring the stuff in, often family members who will have to pay off the debts. It will also be family members who are worried about what is happening to a son or a partner inside. Families are a big resource, but often unused.

Prison UK: What do you think is likely to be the impact of the proposed smoking ban?

Nick H: I accept, in principle, that it is necessary to introduce a smoking ban. I used to be a smoker and you go into a prison and it’s thick with smoke. It’s horrible. For prisoners and staff who don’t smoke it’s intolerable. And you can make the case that people aren’t allowed to smoke in secure hospitals.

However, I do think it is incredibly complicated and risky in prisons. I think they need to proceed very, very carefully. I hope they have this worked out. They need to be talking to prisoners about how it’s being addressed and what the problems are. I don’t think they shouldn’t try but I do think it a very high risk thing to be doing. It will need the support of the population to do it and if it’s not giving people a few sleepness nights it should be.

Prison UK. Given the rising violence in prison against both staff and prisoners, how do you think this trend can be reversed in view of budgetary constraints and reduced staff levels?

Nick H: This goes back to the issue of overcrowding. You’ve got to have enough staff to manage your population. We know that more people are in prison for more violent offences than was in the past.

We visited a prison a couple of years ago and it had a really unpredictable regime. The tension was palpable. I went away from that prison really concerned. I went back there a couple months ago and, although there are still problems and a lot of lock up, they have at least made things more predictable. The levels of tension have reduced and their levels of violence have bucked the trend for local prisons because they are going down while everyone else’s is going up. It was stable and predictable.

I think there is an issue with legitimacy. Prisoners generally want things to be fair and predictable. When you have very chaotic regime, people get frustrated and that creates violence. Whatever regime you have to run, you need to get as much predictability in it as you can.

The most successful prisons are those that work with their populations to understand why violence is happening and to then address it. Some prisons do have violence reduction reps, but they often don’t have a conversation about why violence is happening. Why is there more violence on this wing or that wing and what can we do about it? I think one thing that can be done is to use the expertise of your population.

Sometimes low-level behaviour needs to be challenged quickly. Most prisoners want a peaceful life. They don’t like bullies and people who behave in an antisocial way. They don’t like them getting away with it. Don’t let things escalate, come in at an early stage.

Prison UK: One of the frequent criticisms of HMIP reports by penal reformers is that, all too often, serious shortcomings in specific establishments are flagged up year after year with little or no improvement (or even further deterioration). How would you respond to critics who claim the HMIP is ‘toothless’ when it comes to its watchdog role?

Nick H: I would say two things to that. One is that if you look at our last annual report we had a little box that showed how most prisons that we were concerned about have improved when we went back because they have acted on what we said.

I’d also say to critics that, although it’s tempting to want the Prison Inspectorate to have more powers to be able to enforce my recommendations, remember there used to be a time when the head of the Prison Service used to be called the Inspector General and the inspection team was then a little internal group within the Prison Service. So if you want to give me powers to decide how the system should be run – as opposed to recommend – well, then who is going to inspect me? Because I’d be running the system then. In the end, I don’t run the prison system and what I can do is report what I find and make recommendations.

I can encourage, I can persuade others to act on recommendations. Do they act on them? Well, generally if you look at the worst places we’ve done, some of the reforms are a direct response to us having won the argument about the poor state the Prison Service is in. It’s not just us. Some of the other groups have done it as well. It would be hard to say we haven’t had an impact on the reforms that Michael Gove is now talking about.

Prison UK: At the time when your own appointment as Chief Inspector was coming up for renewal last year, you declined to reapply for your own post. You also commented publicly on why the MOJ role in the appointment process could involve a conflict of interest. How do you think this issue could be resolved?

Nick H: The issue here is we aren’t doing things for the Ministry of Justice; we are doing things to them. We are inspecting things for which they are operationally responsible. That’s what makes it inappropriate, in my view, for us to be sponsored by the MOJ.

Ministers have decided that position isn’t going to change… OK. In that case I think we need a much clearer protocol that sets out how that relationship is going to work. It should be published so people can see what it is. That’s what the Justice Committee in Parliament have asked for.

Prison UK: It was announced last week by Michael Gove that you have been appointed as the new Chair of the Parole Board for England & Wales. Given your recent candid comments concerning the MOJ and its attempts to interfere in the work of HMIP, do you think that your acceptance of this very senior appointment may puzzle some observers?

Nick H: I suppose it could do. This definitely didn’t come out of the blue. I applied for it. I think the issues are different. With the Parole Board it’s a different role. I’m not making decisions about the Ministry of Justice. The Inspectorate is making findings and judgments about things the MOJ has done. The Parole Board isn’t doing that. It’s making decisions on behalf of the department. So I don’t think the issues are the same.

There were a number of reasons I didn’t reapply for the Chief Inspector’s job. One is that I’ve done it for too long. You get used to things, so it’s important you get in some fresh blood and a new pair of eyes. It was time to move on.

Prison UK: Some critics might suggest – rather unkindly – that the Parole Board post is a convenient manoeuvre by Michael Gove to silence your criticism of what has been going wrong in our criminal justice system? How would you respond to such comments?

Nick H: I applied for the job myself. No-one asked me to apply, so that’s that point. I wouldn’t in any case get into my successor’s hair too much. Whatever I was doing, I wouldn’t comment in the same way as I would in this job. But also I’m going to have another role as a professor of criminal justice with Royal Holloway at the University of London, so on that basis I will be able to use the knowledge I have, both as having been Chief Inspector and from the Parole Board, to continue to improve the system. There was certainly no suggestion from Gove that I should apply [for the Probation post].

Prison UK: Unlike he did with telephoning Peter Clarke…

Nick H: Everybody says that, but I think people are being a bit fussy about it. Throughout my working life, sometimes when I have been recruiting people and I have a vacancy, I’ve said to people ‘we’ve got a vacancy coming up and I’d like to see an application. No promises though. Once you get there it will be whoever is best on the day.

I think people are getting over-fussed about that. I don’t personally have a problem with people being encouraged to apply for a job. I think that will happen in any walk of life. Once you get to the selection process itself, it should be a level playing field.

PrisonUK: The Parole Board itself has been the subject of much criticism especially for delays in scheduling hearings for lifers and IPPs. Some reports suggest that the acknowledged delays of up to six months are actually closer to 18 months in some cases. Do you believe that these issues can be addressed without additional resources?

Nick H: It is too early for me to say yet. It is certainly important that the Parole Board clears its backlog. That’s in everybody’s interest. If there are people in prison who don’t need to be in prison, then that’s crazy. It needs to be able to get its backlog down and if that requires extra resources then that is what I’ll be saying, but it’s too early and I wouldn’t want to jump the gun that. Certainly, let’s see if we can get the backlog down. That’s the number one priority.

Prison UK: You have also recently accepted an appointment as Professor of Criminal Justice at Royal Holloway, University of London. What do you hope to contribute to the ongoing debate about criminal justice policy?

Nick H: There’s no doubt, when you look at the recent debate in Parliament about penal reform that there is a degree of consensus about the need for reform that I can’t remember before in my lifetime. There’s an opportunity now that I think is very rare. There are job opportunities for prisoners that weren’t around before, the employment market’s better. There are possibilities now that haven’t existed for a long time.

What I would hope to do is use my experience, both in this role and from roles I’ve had before, to support colleagues at Royal Holloway to make an academic contribution to that debate. I’m pleased that I’ve got a role that will enable me to play a part in that and I’m looking forward to it.

Prison UK: Will you have a teaching role?

Nick H: I’ll certainly do some teaching. It’s a new area, although I already do occasional lectures for students. The whole academic sphere is a different world that I’m not yet used to.

The thing about understanding prisons isn’t simply a question of knowledge. It’s also a question of empathy. If you want to try and understand how people behave, how you might influence those behaviours, then you have to get your head around what it feels like to be in prison. It’s very difficult to understand that if you’ve never been in prison.

When you arrive in reception – first of all you have to take off your top, then your bottoms… What’s going through your head when that goes on? How do you navigate the wing when you first arrive and work out what to do? How does all of that work?

If you can begin to imagine it just a bit, if you can empathise in that sense, then it’s much better for people who are going on to these professions or to do academic work. I think you need to start with empathy, what it’s really like. So I’d like to contribute some of that to students.

I'd also say that one of the great dangers for those people who are interested in prison reform is that is sometimes seems to be a different agenda to care about the victims of crime. I think it’s very important that we talk about the two things together. If we can reform and rehabilitate, then we’ll have fewer victims in the future, so these things are not opposites. This is in everybody’s interest. We want people to leave prison less likely to reoffend than when they went in.

Prison UK: If you had to give one piece of good advice to Peter Clarke, your successor as Chief Inspector, what would it be?

Nick H: It’s very striking that in his first week he went to two prisons and he spent three days in prisons out of the five. I would say keep doing that. My advice would be spend as much time in prison, talking to prisoners, as you possibly can to start with. If you want to know what is going on in prisons, ask prisoners. If you ask enough of them you will get a pretty accurate picture of what is happening. And that is exactly what Peter appears to be doing.

Prison UK: Is there anything you’d like to say to the readers of the blog?

Nick H: While I’ve been doing this job, there have been lots of people who’ve spoken to me as I’ve been going round, both serving and former prisoners, as well as those who’ve written to me, who’ve messaged me via Twitter – the whole community – and I’ve had a lot of help from them. So I’d like to thank them all, if I may, through your blog.

Wednesday, 27 January 2016

Social Media: MOJ Mistake or a Climbdown?

The Ministry of Justice (MOJ) is so accident-prone that sometimes it’s difficult to distinguish between a cock-up and a conspiracy. In my previous blog post (here) I flagged up a seemingly unlawful bid by the grey suits down at the MOJ HQ in Petty France to prohibit prisoners’ families and friends from updating social media accounts such as Facebook or Twitter on behalf of those serving custodial sentences.

MOJ in Petty France:
The Heart of Darkness
Having posted my disturbing discovery on this blog, I launched a modest Twitter campaign to alert a wider audience to the issue under the hashtag #NoToGovesGag. I felt that people should at least be aware of what seemed to me an unjustified attempt to extend prison rules and Prison Service Instructions (PSIs) to cover prisoners’ loved ones in their online activities outside of prison walls.

Given that this social media prohibition first appeared on the official GOV.UK website in December, my concern was that prisoners’ relatives and supporters might be intimidated from passing on information provided by those who are behind bars. I sensed an implied, if unspecified, threat of legal sanctions or other types of retribution against either prisoners or their family members – or perhaps both.

In particular, I was worried about possible impact on the continued use of social media platforms by those campaigning against miscarriages of justice or by prison bloggers who write out their posts by hand and then send them out to be typed up. This activity is currently permitted according to the rules set out in PSI 37/2010: Prisoners’ Access to the Media.

This is an especially sensitive issue given the past struggles of other prisoners – such as Ben Gunn and Adam Mac – to maintain blogs that play a vital role in bridging the vast information gap between their cells and the general public. I consider the hard won right of serving prisoners to blog (subject to usual prison security monitoring of material they send out by post) is just too precious to risk losing because of a faceless MOJ bureaucrat’s diktat.

Campaign tool
After I flagged the issue up on Twitter, things started to move very quickly. The #NoToGovesGag hashtag was retweeted by other penal reformers, criminologists, ex-prisoners, prisoners’ family members, lawyers and also by those who are just concerned over creeping official censorship of public debate about our dysfunctional prison system. Twitter is an ideal medium for reaching out to thousands of users, especially fellow campaigners, academics and those working in the media who share similar concerns.

At that point the national media became interested and several journalists, including Mark Leftly, the deputy political editor of The Independent on Sunday, got in touch with me and we discussed the issue. Mark took on the story and started investigating.

Within a matter of hours, the MoJ had beat a very hasty retreat and the offending paragraph had disappeared from the GOV.UK page to be replaced by a simple statement of fact: ‘Prisoners aren’t allowed to access social networking websites (eg Facebook or Twitter) while they’re in custody.’ No mention of any ban on what prisoners’ families, friends or supporters can post on any social media sites.

So what was the explanation that the Independent on Sunday managed to get out of the MoJ for this rapid retreat? Well, Mark Leftly was told that: “An inaccurate statement on GOV.UK regarding social media was corrected after being brought to our attention.” This story was published in the Independent of Sunday on 24 January.

Drugs & knife in a prison cell-fie
Although in general I don’t subscribe to the conspiracy school of thought, in this case I suspect that the MOJ was trying it on with prisoners’ families following widespread tabloid media coverage of prisoners posting so-called ‘cell-fies’ from behind bars using illicit smart phones. This is clearly a very sensitive subject for both politicians and civil servants, with questions now being asked by MPs in Parliament about such security failures.

Given the current levels of understaffing in our prisons, along with a rise in violence and drug use, the MOJ is particularly keen to emphasise that prisons remain under control of the authorities, even when the hard evidence leaking out might sometimes suggest otherwise. The bottom line is that photos taken inside jails by prisoners using smuggled phones and then posted online are a source of political embarrassment to both the MOJ and to the National Offender Management Service (NOMS).

There are various issues still unresolved, however. For example, why should a serving prisoner’s social media accounts be automatically shut down by Facebook or Twitter when no new criminal offence – such as harassment or contacting victims in breach of an order – has been proven? Social media is now such an embedded part of everyday life that I believe deletion of accounts, including years of archived photos, messages, conversations and contact lists, should only be a final resort once actual misuse, breaches of prison rules or online criminal activity has been proven.

Quick to delete without evidence?
Anyone who has been involved in prison adjudications knows that what passes as evidence and due process inside often bears little resemblance to most people’s concepts of fairness or natural justice. How can any prisoner whose social media accounts are still kept active by loved ones prove to a governor or an external adjudicator (a judge) that he or she hasn’t been making use of an illicit mobile phone from behind a cell door? In effect, the usual burden of proof is being reversed for those in custody. There are very real consequences, including loss of privileges or other punishments, as well as routine cell searches, strip searches and other forms of daily harassment.

At internal adjudications conducted by a governor grade (as opposed to those presided over by a judge), prisoners are only able to request an adjournment to get legal advice (often 10 minutes on a prison pay phone) and can also be denied professional representation at the presiding governor’s discretion. Could a members of a prisoner’s family give evidence at such a hearing in order to rebut a charge?

Online social media death:
deletion by Facebook
As things stand, it appears from recent cases that Facebook doesn’t require any real proof beyond a complaint from HMPS to push the nuclear button and delete an entire social media profile, regardless of whether the account is being misused or not. Although Facebook’s current terms and conditions do prohibit people convicted of sexual offences from having an account, plenty of other prisoners inside for a wide range of other types of crime do have profiles and aren’t subject to such exclusions.

It remains to be seen whether pressure from the hardline law and order lobby (or more likely politicians keen to prove their ‘tough on criminals’ credentials) will eventually campaign for serving prisoners to undergo a form of ‘social media death’ upon conviction and incarceration, including total deletion of their Facebook, Twitter, Tumblr and Snapchat accounts. Could it ever become a general licence condition for prisoners released at the halfway point of their sentences to keep off social media services or face a breach and a return to custody, even when they haven’t been convicted of any type of internet offences?

Silencing prisoners' voices
And what of those prisoners who continue to maintain their innocence from behind bars? Will the MOJ or NOMS launch a crackdown aimed at censoring the content of these sites, either directly or indirectly? Even if prisoners’ families and friends are now firmly out of the clutches of an unlawful social media ban, there is nothing to prevent HMPS complaining to Facebook, Twitter, YouTube or to any other website hosting services that they object to the use of contributions originating from serving prisoners.

While such pressure might well be open to legal challenge, these court actions cost money which most prisoners’ families or supporters simply don’t have. It can be all too easy for the powerful to intimidate and silence the powerless and vulnerable.

The #NoToGovesGag campaign gave us a very quick win. It cost nothing beyond people’s time and some very welcome national media interest. However, next time we prison campaigners may not be so fortunate. If we really value informed comment from serving prisoners on blogs or via Twitter, or online innocence campaigns that actively involve those rotting behind bars for crimes they may not have committed, then all of us need to be vigilant when it comes to underhand attempts by the MOJ or NOMS to silence prisoners’ voices.

Thursday, 21 January 2016

Say No to Gove's Gag

Although the rapid spread of social media via various platforms is something most of us take for granted these days, British prisons remain steadfast in their battle to prevent – or at least dissuade – serving prisoners from accessing or updating their profiles, particularly on Facebook and Twitter. As frequent news reports suggest, this is a battle the authorities appear to be losing despite the introduction of tougher penalties for prisoners caught with illicit mobile phones.

Off limits to prisoners
Since the vast majority of prisoners have no legitimate access to the internet – other than those in open conditions when released on temporary licence (ROTL) – it follows logically that they shouldn’t be able to post selfies, status updates, comments on others’ posts etc. In fact, according to current ROTL licences, even when they have been released temporarily, prisoners are still barred from logging on to Facebook and similar sites.

The reasons aren’t hard to understand. Photos taken by prisoners inside prisons are illegal under the Offender Management Act (2007), since smart phones and cameras are prohibited in jails by law anyway (even for staff members). Occasionally, officially-sanctioned films or photographs are taken inside, but this requires various permissions to be obtained well in advance.

I know because I was once part of a filming project in an open prison. It had been given the green light by the National Offender Management Service (NOMS) and had the active support of the No 1 governor. I was given a digital camera with which to interview fellow cons (and even a couple of members of staff who had volunteered to appear). The controls were very tight, however, and the finished documentary was very carefully vetted by senior management before anyone else actually
got to view it.

Banned, but available
When it comes to anything that hasn’t been approved, however, the Ministry of Justice (MOJ) and NOMS are completely paranoid. In recent years there has been much concern about negative media coverage of prisoners posting ‘cell-fies’ (as they are nicknamed) of cons messing around in their cells or on landings.

Even worse are images or film clips of prisoners being really naughty: fight clubs, dealing or using drugs, handling wads of illicit cash or even weapons. Any of these might give the impression that our prisons are deep in crisis, with the authorities losing control while wings are awash with drugs, violence and illicit mobile phones. Which they are, of course.

Although the Daily Mail and similar tabloids do enjoy publishing a good prisons scoop focusing on photos of prisoners ‘living the high life’, using Playstations in their cells or just flexing their bulging muscles for the camera, it’s also true that victims of crime have a reasonable expectation that they won’t be reading The Sun one morning only to see pictures of the thug who bashed them or a loved one (or much worse) grinning out at them or pumping iron. It’s a fair bet that finding similar images on social media rubs even more salt in their wounds.

All that I fully understand. Like a surprisingly high number of prisoners (or ex-prisoners) I’ve also been a victim of serious crime myself in the past and I’m sure that finding ‘cell-fies’ of the perpetrators all over the show while they were in prison would have annoyed me and upset members of my family too. Please don’t get the idea that I’m advocating or supporting such behaviour. I don’t.

However, this post has been written in response to a couple of recent incidents. Late last week a short film made by two serving prisoners at HMP Bullingdon in Oxfordshire hit the media. They’d made this in their cell last October using an illicit mobile phone. They barely concealed their faces with makeshift masks, but it was clear to anyone who has been inside that this was a genuine production from behind bars. Having been posted on YouTube, it made the national news (Link here).

Inside HMP Bullingdon
Basically, the lads were doing their best to blow the whistle on what is really going on inside our closed prisons. They highlighted deteriorating living conditions, appalling hygiene problems, that there were too few staff to run the prison safely, that drugs and violence were rampant on their wing, as was bullying and robbery. As one of them remarked: “If you treat us like animals, we’re gonna act like animals.”

Now, it is clear that these prisoners were breaking both the law and the Prison Rules, but unlike the numpties who post ‘cell-fies’ of themselves surrounded by canteen goods or taking drugs or gloating at their crimes and victims, they were trying to draw the attention of the outside world to the crisis that has engulfed our prison system during the past few years. Their clip has already attracted supportive comments on YouTube and – perhaps more surprisingly – even from a few serving prison officers on social media who agree with their assessments of the rising tide of violence and anarchy, even if they don’t condone the secret filming. At a time when media access to our dysfunctional prisons has been all but banned by the MOJ for several years, these brief insights can shine a spotlight on just how bad the situation has become across the prison estate.

Of course, it wasn’t difficult for the prison authorities at HMP Bullingdon to identify and punish them, but in reality I think they are actually doing the general public a service by providing a truthful glimpse into the dark and dangerous world behind bars, fuelled by the twin evils of overcrowding and understaffing. What they revealed is what most of those of us who have recent prison experience already know only too well. Now it’s time that there was a much wider acknowledgement of the prisons crisis.

Prisons are awash with drugs
Readers might be wondering by now why I’ve entitled this post Say No to Gove’s Gag. The reason is that there was another prison and social media story this week (Link here).

A serving prisoner has been accused of updating his Facebook page and, following complaints, it has been removed and the individual concerned is facing disciplinary action. However – and this is the key issue – it isn’t clear that he was responsible for the posts. The Facebook photo in question, which is being used by the newspaper that reported the story, certainly doesn’t look like a typical prison cell selfie. It may well turn out that a member of his family or a friend had access to his account and did the updates.

Then I checked the official UK Government website GOV.UK which includes pages maintained by the Ministry of Justice (Link here). This provides information entitled Staying in Touch with Someone in Prison. There are various sections, but my attention was drawn to that which deals with the internet and social media. This states very clearly: “You mustn’t update any social networking website (eg Facebook or Twitter) on the prisoner’s behalf.”

Now, while this might be open to various interpretations, it appears to be a pretty direct assault on the rights of free speech of prisoners’ families and friends. They are only bound by the Prison Act and Prison Rules when they are actually inside the prison, for example for a visit. NOMS and the MOJ clearly do not have any lawful business telling members of the public what they may or may not post on social media sites. This is not based on any legislation that has been passed in Parliament, nor is it legally enforceable in any way.

NOMS: is it going too far this time?
What also concerns me is that this blanket statement – which is specifically intended to inform prisoners’ families and friends about the prison system and how it works – seems to imply that the ban extends to all forms of social media for all purposes if they are acting on the prisoner’s behalf. Many prisoners, particularly those who are steadfastly maintaining innocence, do have websites, blogs or Facebook profiles that promote their cause or try to attract the attention of investigative journalists and the wider media. Some prisoners’ supporters are very active on Twitter, raising a wide range of issues. While I can understand that the MOJ and NOMS are not keen on such activity, let alone blogs by serving prisoners who are drawing attention to poor or dangerous conditions in our prisons, that is not an argument for putting pressure, overtly or covertly, on prisoners' families or supporters in order to silence them or prevent them sharing what they have been told by people on the inside.

Now, a great many of these campaign sites have regular updates or messages of thanks from prisoners who have posted them out to their families or supporters to be uploaded, or who have shared information via the telephone. The rights of prisoners who are maintaining innocence or who are keen to contribute to debates about criminal justice or the penal system are well-established in law, as well as acknowledged in the relevant Prison Service Instruction (PSI 37/2010: Prisoners’ Access to the Media).

Be afraid. Be very afraid...
This PSI details the ways in which serving prisoners are permitted to contact journalists and the various permissions that must be sought and obtained before they can have face-to-face interviews within prisons. Material written by the prisoner for publication must similarly be vetted, especially to censor any references to staff members or other prisoners. This also specifically includes material intended to be posted on the internet.

However, none of this applies in any way to prisoners’ family members, friends or supporters. They are not subject to the PSIs or Prison Rules in respect of whatever they wish to publish or post online outside of the prison. There are no legal sanctions that can be applied to them other, perhaps, than banning them from visiting or corresponding with a prisoner – and even this would be subject to robust legal challenges. Despite this, the official government information website sees fit to try and impose a blanket ban that surely must interfere with people who are non-prisoners and their rights to enjoy free speech and expression.

What is of even greater concern is the rather sinister way in which these ‘rules’ are couched. The implication, as I see it, is that prisoners might be found responsible for anything their family updates or posts on website or profiles that are out of the prisoner’s immediate control from their cell.

Shackling prisoners' families?
As in the recent case of the prisoner who faces disciplinary action and punishment as a result of his Facebook profile being updated, there now seems to be an attempt to reverse the burden of proof onto the prisoner to ‘prove’ that he or she did not have an illicit mobile phone in their possession, or even that they didn’t ‘authorise’ or approve any posts made by members of their families or their friends outside in the community.

This clearly ignores the possibility that some prisoners have shared their passwords with partners or others before they were sent to prison. If these cases go to internal adjudication, will prisoners’ family members or their friends be allowed to give evidence (oral or written) as to the circumstances in which a specific profile or social media account was updated or accessed?

In this case Facebook – never slow to bow to official pressure – has also deleted the prisoner’s profile. Although its terms of use do specifically exclude convicted sex offenders from having profiles, this person isn’t in that position. It seems that he has been tried, found guilty and his online presence deleted as a punishment by Facebook even before the prison system’s disciplinary procedures have been followed or he has been found to have broken any rules. This alone should cause concern about censorship and Facebook’s relationship with the MOJ.

The black tape of censorship
Unfortunately, NOMS and HM Prison Service has a long and undistinguished history when it comes to mistreatment and bullying of prisoners’ families. It often seems that when one member of a family has been convicted of an offence and imprisoned, it follows that their relatives must all be subjected to various humiliations and collective punishments, especially when it comes to visiting their loved ones in jail.

However, to my mind the information currently on the government website about prisoners and social media is a step too far. It is very likely unlawful, as well as misleading. That is why I’ve launched the #NoToGovesGag campaign on Twitter. This section of the GOV.UK website needs urgently to be rewritten so it makes it clear that prisoners’ family and friends cannot be silenced or intimidated when posting material relating to their loved one who is in custody. Please support so that this attempt to bully prisoners’ families can be stopped in its tracks.