Prison: a Compensation Culture?

It seems that you can always rely on those ‘terrible tabloid twins’ – The Sun and the Daily Mail – to tell their readers half a story. This weekend their latest prison-related smear campaign focused on prisoners putting in compensation claims for civil losses, such as missing or damaged items of property, or for personal injuries suffered while in custody.

Valuable property bag

Of course, neither rag bothered probing too deeply behind the latest Ministry of Justice (MOJ) figures which revealed that during the course of 2015 it had paid out a total of £9.3 million in connection with prisoners’ claims. At the same time, it is worth noting that similar claims by members of prison staff cost the taxpayer a grand total of £19.5 million, mostly for personal injuries. The total bill came to £28.8 million, a fair old whack when you think about it.

Perhaps predictably, the focus was on stirring up righteous indignation among the blue rinse hang ‘em and flog ‘em brigade over a few very high profile cases. These included claims made by Kevan Thakar (a regular hate figure for the tabloids) and Michael Adebolajo, one of the two murderers of Lee Rigby. Equally predictable was the reaction by the usual Tory politicians who scrambled over one another to express their sense of outrage.

Apparently on the defensive, the MOJ – via junior minister Dominic Raab – announced that it has instructed a London-based specialist law firm, BLM, to analyse compensation claims made against HMPS. BLM specialises in defending personal injury claims. It also states that it has ‘broken through the £100 million barrier’ – presumably turnover – in its practice that focuses mainly on risk and general insurance cases. According to Chambers Legal Directory, BLM offers ‘fantastic advice on cases that are costly, complex and reputationally difficult.’

Hmm. I bet such blue chip legal services don’t come cheap, but there’s no denying that the MOJ does have a pretty grim ‘reputational’ problem. Whether throwing more money at it will make a difference remains to be seen.

A 'reputational' problem?

What these two newspapers’ stories barely touched upon is the real reason prisoners’ claims appear to be so expensive to deal with: the fact that it is government policy to ‘robustly defend’ pretty much all compensation claims made within the prison sector, including it would appear, those made by prison staff injured in the course of their duties. That policy will no doubt do wonders for staff morale in the service, which is already close to rock bottom.

When analysed carefully, it is clear that the majority of financial claims made by prisoners fall into one of three categories:

• Unlawful detention (when there has been a miscalculation of sentence or some other administrative cock-up)
• Personal injury (usually slips, trips and falls on the wings or around the kitchens or other workplaces, although it can includes claims of assault by other prisoners or prison staff)
• Lost, stolen or damaged personal property

Small property claims are by far the largest single reason that prisoners take action against HMPS. These rarely concern theft of property held ‘in possession’ in the individual prisoner’s cell since it is made clear by Reception that any personal items an inmate chooses to have in his or her possession is at the person’s own risk. If a fellow con – or ‘pad-thief’ – makes off with your CDs, clothing or tobacco, then putting in a claim against the prison authorities won’t get far unless a member of staff has actually unlocked the cell and allowed other prisoners unauthorised access. I am aware of cases of this sort, but good luck with proving it.

Lost in translation

By and large property claims are made when the property was either held in storage (‘stored prop’), when sent to the prison laundry or while in transit between prisons during a transfer. Prisons are notorious for losing or damaging bags and boxes of personal property, a problem that is complicated by the fact that transport has been contracted out to private sector providers that are also very unkeen to take the rap when things go wrong.

Often, when property has been mislaid in transit, neither the sending prison nor the destination establishment will be willing to accept any liability. What ensures is then a protracted game of institutional ping-pong as paperwork and complaints amble around the system. Unravelling who signed for what and when can be as complex as trying to chase up lost luggage from budget airlines and can take months or even years. Only the most tenacious really stay the course.

Other types of property claims – including some of the claims highlighted by The Sun and The Mail – involve allegations that vindictive members of staff may have done deliberate damage to a specific prisoner’s property in order to take revenge or to provoke the individual making the allegation. While incidents of this kind are probably not that common – think of all the extra paperwork it can generate – I know for a fact that such acts of vandalism do occur as I’ve witnessed it happening and have then been asked to help fellow inmates navigate their way through the complex and time-consuming complaints procedure at not inconsiderable risk to my own well-being.

In one Cat-B prison I well remember seeing two wing officers clearing out the cell of a particularly unpopular young prisoner who was by then locked up down in the Block (segregation unit) for ‘kicking off’. Always challenging in his behaviour, he had lost his temper and assaulted two members of staff – for which he had been charged and was being held in solitary confinement ahead of a disciplinary hearing. While he was absent, his cell was emptied and his possessions packed up in order to make room for another con.

Shared prison cell

Wing officers take responsibility for this and are supposed to complete what is known as a cell clearance certificate. When it is a shared cell and only one prisoner is moving, then in theory the other inmate is supposed to be in attendance in order to identify which items of property belong to whom. Given staff shortages, however, on occasion this doesn’t happen and property mix-ups can occur. The absent prisoner then returns from work or education to discover half his prop has disappeared.

This particular cell clearance seemed to consist of smashing anything breakable, including his stereo system, which was deliberately dropped over the railings from the 2s (first floor) and hit the polished lino floor with a loud bang. His family photos were torn off the notice board, books had covers ripped off and his china mug and plate were smashed. I stood at the door of my cell, as did dozens of others, watching and listening to this wrecking in progress. I suppose it was intended as an object lesson for the rest of us.

What was happening was clearly an act of revenge by two members of staff who disliked this lad intensely. What I found particularly disappointing was that one of the officers was actually a generally friendly and decent bloke that I got on with pretty well. He was ex-Army, heavily tattooed and always had a joke or a quip to lighten the mood on the wing. I liked the guy. That day, however, he really let himself and the service down. We never saw him in quite the same light again and I think he realised it.

The prisoner on the receiving end wasn’t my favourite person either, but the wanton and deliberate destruction of what were probably this young lad’s entire worldly goods was nothing short of criminal. When you have very little to start with, every loss can hurt, especially treasured items like family photos, letters from loved ones and pictures your kids have drawn for you.

First step in the prison complaints system: Comp 1

Understandably, this incident produced a complaint and a damages claim with a very long list of missing, broken or smashed items. He eventually won his case and received compensation from HMPS, but it proved to be a long and time-consuming process, as well as costly for the taxpayer since the MOJ contested the claim, preferring to assert that he had smashed up his own property, even though everyone on the wing knew he had been down the Block at the time.

Since inmates have limited options for redress and the internal complaints procedure often fails to address allegations of victimisation by staff, prisoners – even the most violent – are still regarded as being vulnerable persons as a consequence of their freedom of action and movement being severely constrained. Destruction or loss of their personal possessions can be seen by a minority of uniformed officers as a form of ‘unofficial punishment’ that can be dished out. That is one very important reason that appropriate avenues for complaint and, if required, action to secure an investigation followed by compensation, are needed.

In case any reader feels that I’m exaggerating, it’s worth noting that back in February 2014, the Prisons and Probation Ombudsman (PPO) Nigel Newcomen published an extensive report entitled Prisoner Property Complaints (read here). The PPO handles complaints from prisoners who have already exhausted the internal prison complaints procedures without having their claims resolved and this document includes examples of specific problems and the lessons that should be learned.

The Ombudsman observes:

The most common subject of complaint is lost or damaged property. These complaints also have the highest uphold rates (where we find against the authorities and in favour of the complainant) and this suggests that prisons are not managing prisoners’ property well.

He also correctly points out that since most prisoners have little personal property, loss or damage can have a much more profound impact on their everyday lives and sense of well-being:

Most property complaints concern small value items, but these can still mean a lot to prisoners with little. Unfortunately, too many of the issues involved could and should have been dealt with more quickly and efficiently by the prisons concerned.

The PPO report includes a telling paragraph that should be highlighted, as it points the finger of blame for protracted and costly property disputes firmly at the way in which some prison managers simply refuse to take any responsibility for these problems:

Instead, despite perfectly sound national policies and instructions, which set out  clear procedures and responsibilities, prisons too often refuse to accept their responsibilities when property has been lost or damaged.

In fact, most lost or damaged property claims are of low value, most well under £100, as the PPO analysis contained in the report reveals. Very few prisoners have particularly costly items in their possession. This means that what should be minor – and usually inexpensive losses to remedy – can snowball out of control until they reach the civil courts, generating expense as they roll.

Small claims... still cost money

That the MOJ chooses to defend such actions at the taxpayers’ expense is, in my view, an inappropriate use of public money. As a result of these cases being taken to court, the actual costs and legal fees incurred can be many times greater than the original sum claimed by the prisoner, a fact that The Sun and The Daily Mail conveniently omit to mention.

It would seem far more sensible if governors were encouraged to offer settlements of small property claims, say under a few hundred pounds. These procedures already exist within Prison Service Instruction (PSI) 12/2011 – Prisoners Property.

If the items in question can be confirmed as genuinely lost or damaged while in the care of the prison, then a swift offer to pay small sums in compensation could save the public purse many thousands of pounds each year. If Michael Gove, the Secretary of State for Justice, is genuinely serious about devolving more local powers back to the governing governors of each prison, then a focus on resolving these minor disputes efficiently before a claim escalates and incurs legal costs would be a good place to start.

It is perhaps worth noting that many prisoners do not claim when their property has been lost or damaged. Some have become so disillusioned with the internal complaints procedures that they just don’t bother. Others, particularly those who lack basic literacy skills, can feel that they are unable to cope with a complaints system that is almost entirely based on written applications and filling in forms. When dealing with a prison population that includes a significant number of people who are functionally illiterate, this is a fundamental weakness in the whole process.

Prisoners and staff can get injured

Personal injury claims can be much more complex in cases where a prisoner or a member of staff has been injured on HMPS property. Inmates are required to undertake work if it is available and some jobs do expose individuals to the risk of serious injury. Potentially dangerous workplaces include the kitchens, workshops, industrial laundries, gyms, stores and even when cleaning wings. Some establishments still have farms and gardens where tools and heavy machinery are in regular use.

In the course of their work, prisoners may have to handle toxic substances, use industrial equipment – such as steam presses, sewing and cutting machines – and prison kitchens are also full of hazards. Agricultural mishaps can cause severe injuries. At times, health and safety training can be very basic and, on occasion, serious accidents can and do occur. Prisoners can be left badly injured or even permanently disabled as a direct consequence of compulsory labour in our prisons.

Potential dangers can also be found outside the workplace. There can be further hazards on the wings: high metal staircases, dangerous showers, slippery polished lino floors, blood spills, top bunks without safety rails, broken cell furniture and unsafe electrical fixtures. Poor maintenance due to budget cuts can prove costly in other ways.

As with any system of compensation claims, some prisoners (or even members of staff) may – on occasion – fake or exaggerate pain and extent of injuries, but then so do plenty of ostensibly ‘law abiding’ folk outside in the community. The issue of whiplash in driving accidents is a notorious case in point. However, no-one is seriously proposing that victims of workplace accidents across the UK or those injured on the roads should suddenly lose any entitlement to appropriate compensation.

Easy to criticise - unless it's you

As is often the case, I find that many people are very ready to criticise the so-called compensation culture until they, or a close family member, have been seriously injured through no fault of their own. Life-changing injuries can end careers, cause decades of pain, ruin lives or even require a lifetime of specialist care.

I have seen some horrendous workplace accidents in prisons. I remember well the case of a very hardworking, responsible inmate who was assigned to a jail laundry. A large industrial washer that had been poorly maintained leaked chemicals onto the floor at a point where the lighting was very dim, so the hazard couldn’t easily be spotted. He lost his footing, fell heavily and did catastrophic damage to his knee.

It took hours to get him to hospital, mainly because of the usual security delays in getting escort officers arranged, during which time he was given no pain relief. He eventually required two sessions of surgery and has been left with a permanent limp, as well as constant pain. He was a keen amateur footballer, but active participation in sports of this kind is now not an option. His life truly has been changed forever.

Trips, slips, falls...

Another key reason that personal injury claims are important in a prison environment is that this is often the only way a proper investigation into how an accident occurred will be carried out. Statements need to be taken from both supervising staff and other witnesses, working practices are audited, risks reassessed and, in theory at least, lessons learned so similar incidents can be avoided in future.

Without this legal process, even serious incidents are more likely to be passed over with little more than a note scribbled in the workshop or kitchen accident book. Prisons are often very adept at internal cover-ups and the civil legal process can be the only way in which prisoners can seek an acknowledgement that serious mistakes were made, along with appropriate redress. These are basic human rights and protections. They are not forfeited when a person walks through the door into prison Reception.

If the government is proposing to curtail these legal safeguards, as Mr Raab seems to be suggesting in his recent comments, then I believe that all those of us who care about prison reform should be seriously concerned. Any measures that would curtail or remove a prisoner’s legal right to seek redress – whether over lost or damaged property or following personal injury – would send a clear and unmistakable message that people held in prison are second-class citizens who are denied essential safeguards and protections of the law that everyone else takes for granted. One only has to look at the recent scandal concerning events at the Medway Secure Training Centre run by G4S to understand why people in custody – whether children or adults – do need appropriate protection from abuse and mistreatment.

I fear that action by the MOJ to curb prisoners’ legal rights could encourage a culture of bullying and victimisation of unpopular prisoners by some staff, as well as potentially lead to cover ups of serious health and safety lapses, especially when these have led to serious or even catastrophic personal injuries. How many people have been sent to prison fit and healthy, but have emerged injured or even permanently disabled? These are questions that are rarely asked by the media.

One of the regular mantras prisoners hear during their imprisonment is of the need to accept responsibility and to be accountable for their actions. Any forthcoming government proposals that aim to limit or exclude prisoners from taking civil action for damages would be an abdication of both responsibility and accountability by the MOJ and HMPS. What kind of message would that send?