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Pace Law Review Prison Oversight Sourcebook Article 11 Prison Inspection and Prisoners Rights 2010

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Pace Law Review
Volume 30
Issue 5 Fall 2010
Opening Up a Closed World: A Sourcebook on
Prison Oversight

Article 11

11-18-2010

Prison Inspection and the Protection of Prisoners’
Rights
Anne Owers

Recommended Citation
Anne Owers, Prison Inspection and the Protection of Prisoners’ Rights, 30 Pace L. Rev. 1535 (2010)
Available at: http://digitalcommons.pace.edu/plr/vol30/iss5/11
This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law
Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact rracelis@pace.edu.

Prison Inspection and the
Protection of Prisoners’ Rights
Anne Owers*
In the United Kingdom, the juridical protection of
prisoners‟ rights, through the courts, has played a lesser role
than it has in the United States—though it has been an
important vehicle for providing individual redress and
promoting systemic change. The UK lacks a written and
justiciable constitution, which can override legislation and
underpin fundamental rights. However, the UK has from the
beginning been a signatory to the European Convention on
Human Rights (ECHR), signed and ratified by European states
in the aftermath of the Second World War to provide a nonnegotiable floor of rights across Europe.1 The ECHR is
overseen by the European Court of Human Rights (ECtHR),
and until 2001 this was the only way to test domestic law
against a human rights framework.2 It is certainly true that
cases involving prisoners‟ rights have been the most numerous
of the UK cases coming before the ECtHR. This has resulted in
some significant changes—in relation to the privacy of
* Dame Anne Owers was the Chief Inspector of Prisons for England and
Wales from August 1, 2001 through July 14, 2010. She was previously the
Director of JUSTICE (the British section of the International Commission of
Jurists, and an all-party human rights and law reform organisation) and the
General Secretary of the Joint Council for the Welfare of Immigrants. She
sat on the Task Force that oversaw the implementation of the Human Rights
Act 1998 in the UK, and has been a member of other legal and race relations
advisory and voluntary bodies.
1. See European Convention on Human Rights, Convention for the
Protection of Human Rights and Fundamental Freedoms (ETS no.5) Rome
4.X1.1950 as amended by Protocol 2 (ETS no. 44) of 6/5/63, Protocol 3 (ETS
no. 45) of 6/5/63, Protocol 5 (ETS no. 55) of 20/1/66 and Protocol 8 (ETS no.
118) of 19/3/85. European Convention on Human Rights, UK Law Online,
http://www.leeds.ac.uk/law/hamlyn/echr.htm (last visited Mar. 27, 2010).
2. See European Convention on Human Rights, Sec. II, Art. 19,
Convention for the Protection of Human Rights and Fundamental Freedoms
(ETS no.5) Rome 4.X1.1950 as amended by Protocol 2 (ETS no. 44) of 6/5/63,
Protocol 3 (ETS no. 45) of 6/5/63, Protocol 5 (ETS no. 55) of 20/1/66 and
Protocol
8
(ETS
no.
118)
of
19/3/85,
available
at
http://www.hri.org/docs/ECHR50.html#P2.

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prisoners‟ correspondence, the need for proper investigation of
deaths in custody, the oversight of segregation and other
punishments, and most recently, prisoners‟ right to vote.
Since October 2001, the ECHR has been incorporated into
UK law, through the Human Rights Act 2000, so that its
provisions are also justiciable in the domestic courts.3 This is
the most recent source of domestic judicial protection; but cases
involving prisoners had already regularly come before the UK
courts, on judicial review, challenging the rationality of
administrative decision-making, or the compatibility of practice
with the law and the Prison Rules. This is a relatively new
development: at one time, it was held that „the rule of law
stopped at the prison gate‟, but for over twenty-five years, legal
judgments have clearly established prisoners‟ rights of access
to courts.
Courts, however, provide only limited redress for many of
the approximately 86,000 prisoners4 held in prisons in England
and Wales. Many will serve only short sentences, with the
prospect of release before any case could be heard; few will
have access to lawyers, except in relation to their criminal
cases; and lawyers themselves, like the general public, do not
penetrate beyond the visiting room to gauge for themselves
what conditions are like. And courts intervene, by definition,
when an abuse, or alleged abuse, has already happened:
sometimes with irreversible consequences, as in the case of
deaths in custody.
In England and Wales, we have developed an interlocking
system of independent administrative protection of prisoners‟
3. See The Human Rights Act: Guidance, Crime Reduction,
http://www.crimereduction.homeoffice.gov.uk/hra.htm (last visited Mar. 27,
2010) (“The Human Rights Act incorporates provisions from the European
Convention on Human Rights into UK law. When the Human Rights Act
came into effect on 2 October 2000, the Convention rights are enforceable in
the UK courts.”).
4. The terms „prisons‟ and „prisoners‟ in this paper refer to all the places
in which those remanded on, or convicted of, criminal offences can be held in
England and Wales. They therefore include young-offender institutions
(holding those between the ages of fifteen and twenty-one), maximumsecurity prisons, and those which in the United States would be termed
„jails‟—i.e., small local facilities mainly holding pre-trial or unsentenced
prisoners. There is no equivalent in the UK of federal and state incarceration
systems—all prisons are nationally-run as part of the National Offender
Management Service (NOMS).

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rights, designed to be preventive and proactive, as well as to
expose and deal with abuse or malpractice. This system relies
upon three sets of bodies: the Prisons Inspectorate, the Prisons
and Probation Ombudsman, and the system of Independent
Monitoring Boards. This paper deals mainly with the first (of
which I was Chief Inspector between 2001 and 2010); but the
role of the other two bodies also needs to be explained.
The Prisons and Probation Ombudsman (PPO) deals with
individual prisoners‟ complaints, after a prisoner has
exhausted the various tiers of prisons‟ internal complaints
procedure. He investigates the complaint, and makes a
finding. Though he cannot enforce his findings, they are
implemented in the great majority of cases. More recently, the
PPO has acquired another important duty: that of
investigating all deaths in prisons or probation hostels—
whether they occur from natural causes, homicide or are selfinflicted. This is to meet the requirements of Article 2 of the
ECHR—where case law has held that the State has a
procedural duty to investigate deaths in circumstances where it
has acquired a positive duty of care to protect life.5 The PPO‟s
office therefore investigates all such deaths, and publishes
reports with recommendations for changes in practice and
policy—which, again, are non-binding, but which a prison
would be extremely ill-advised not to implement, in light of the
consequences, considering that those deaths will also be
judicially investigated by a coroner‟s court, which will take into
account whether lessons from past deaths have been learnt and
implemented. As of 2010, prisons will also be liable under
corporate manslaughter legislation.
All prisons also have Independent Monitoring Boards
(IMBs). They are groups of volunteer local citizens, who are
appointed by the Justice Secretary to monitor a particular
prison. They have a statutory right of entry6 to the prison, can
5. See R (Amin) v Secretary of State for the Home Department [2003]
UKHL 51; R (Middleton) v West Somerset Coroner [2007] UKHL 13. These
cases also widened the remit of Coroners‟ inquests, to make findings as to the
cause of death.
6. Prison Act, 1952 s.6 (3) (U.K.), available at http://www.englandlegislation.hmso.gov.uk/RevisedStatutes/Acts/ukpga/1952/cukpga_19520052_
en_1. (“Rules made as aforesaid shall prescribe the functions of . . . boards of
visitors and shall among other things require members to pay frequent visits
to the prison and hear any complaints which may be made by the prisoners

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receive requests and complaints from individual prisoners, and
have particular duties in relation to prisoners held in
segregation. Boards carry out regular monitoring visits to all
parts of the prison, usually meet regularly with the prison
Governor, and publish an annual report of their activities and
their assessment of the prison.
The Prisons Inspectorate, acting under the powers of the
Chief Inspector of Prisons,7 is a key component of the
protection of prisoners‟ rights. Unlike the PPO, there is no
statutory authority to deal with individual prisoners‟
complaints or to investigate individual cases. Unlike the IMBs,
there is a statutory responsibility to inspect every prison in
England and Wales (and by invitation, prisons in Northern
Ireland, the Channel Isles and the Isle of Man), by employing
specialist, professional inspectors to carry out this role. More
recently, the Prisons Inspectorate was given statutory
responsibility for inspecting all places of immigration detention
and report to the Secretary of State any matter which they consider it
expedient to report; and any member of a . . . board of visitors may at any
time enter the prison and shall have free access to every part of it and to
every prisoner.”).
7. Prison Act, 1952 s.5A (amended under the Criminal Justice Act 1982
(c. 48 51F 39:1, s.57(1) (1982)), available at http://www.englandlegislation.hmso.gov.uk/RevisedStatutes/Acts/ukpga/1952/cukpga_19520052_
en_1#pb1-l1g6 (U.K.). According to the statute:
Appointment and functions of Her Majesty‟s Chief Inspector
of Prisons:
(1) Her Majesty may appoint a person to be Chief
Inspector of Prisons.
(2) It shall be the duty of the Chief Inspector to inspect
or arrange for the inspection of prisons in England
and Wales and to report to the Secretary of State on
them.
(3) The Chief Inspector shall in particular report to the
Secretary of State on the treatment of prisoners and
conditions in prisons.
(4) The Secretary of State may refer specific matters
connected with prisons in England and Wales and
prisoners in them to the Chief Inspector and direct
him to report on them.
(5) The Chief Inspector shall in each year submit to the
Secretary of State a report in such form as the
Secretary of State may direct, and the Secretary of
State shall lay a copy of that report before
Parliament). . . .

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in the UK,8 and, together with the police inspectorate (HM
Inspectorate of Constabulary) also now has a programme of
regular inspection of all police custody suites. Finally, it has
for some time, by invitation, inspected the military‟s central
detention facility in the UK, the „corrective and training
centre‟, and consideration is now being given to extending this
to all garrison detention facilities in the UK.
These extensions of powers and responsibility are in part
due to the requirements of one of the most recent international
instruments for the protection of prisoners‟ rights. In 2005, the
UK was one of the first states to ratify the Optional Protocol to
the UN Convention against Torture or Inhuman and
Degrading Treatment or Punishment (Opcat).9 This Protocol is
designed to provide effective protection at a national level for
all those held in any form of detention. It requires states‟
parties to have in place what is called a „national preventive
mechanism‟ (NPM): a body with the power and the right to
carry out regular inspection visits to all places of detention and
to report on the treatment and conditions of detained persons.10
In the UK, the role of NPM is carried out by a number of
existing organisations in the four nations of England, Scotland,
Wales and Northern Ireland. Some are geographically-based
(for example the Scottish Prisons Inspectorate) and some are
functionally-based (for example the Care Quality Commission
with the duty to monitor the treatment of those held in
detention under mental health powers).
The Prisons
Inspectorate of England and Wales is the coordinating body for
the UK‟s NPM, which was formally set up in 2009. This is an
extremely important development, which both ensures regular
inspection of all places of detention, however small, and also
underlines the important role of inspection in preventing,
rather than chronicling or prosecuting, torture and
mistreatment.
This has been key to the work of the Prisons Inspectorate

8. See Immigration and Asylum Act 1989; Asylum, Immigration and
Nationality Act 2006 (U.K.).
9. Optional Protocol to the Convention against Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment, G.A. Res. 57/199, U.N.
Doc.
A/RES/57/199
(Dec.
18,
2002),
available
at
http://
www2.ohchr.org/english/law/cat-one.htm.
10. Id.

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over many years. The Chief Inspector of Prisons has the
statutory duty to inspect prisons in England and Wales and to
report on them to the Home Secretary, “in particular . . . on the
treatment of prisoners and conditions in prisons.”11 Implicit in
this duty is the power to enter any prison at any time, and to
have access within the prison to every prisoner, member of
staff and document. Inspectors can, and do, inspect without
any warning, and when they do so, they will draw their own
keys, giving them independent access to all parts of the prison,
including cells.
Under a Protocol agreed to by the Justice Secretary, every
adult prison is inspected at least twice every five years: once
for a full inspection, and once for a follow-up. Juvenile prisons
(holding those under 18) will have at least two inspections in a
three-year period. Full inspections last for a week. Most full
inspections are announced in advance, but some are not.
Before the inspection takes place (or at the beginning of an
unannounced inspection), researchers visit the prison and
carry out a confidential survey with a randomly selected
number of prisoners: sufficient to provide a statistically
significant sample. The survey asks over 100 questions, about
all aspects of prison life. There is now an extensive database of
such surveys, so that prisoners‟ answers can be compared with
those from prisoners in prisons of the same type, and also with
the answers that were received from the same prison at its last
inspection. The survey results can also be split out, for
example, to compare the responses of white prisoners with
those of prisoners of black or minority ethnic (BME) origin, or
those of prisoners with disabilities with those without. It is of
some concern that BME and disabled prisoners routinely report
worse treatment than white or able-bodied prisoners, over a
whole range of areas of prison life.12
11. Prison Act, 1952 s. 5A (3), available at http://www.englandlegislation.hmso.gov.uk/RevisedStatutes/Acts/ukpga/1952/cukpga_19520052_
en_1#pb1-l1g6 (U.K.) (“The Chief Inspector shall in particular report to the
Secretary of State on the treatment of prisoners and conditions in prisons.”).
12. Survey results are appended to each inspection report. See also HER
MAJESTY‟S INSPECTORATE OF PRISONS, PARALLEL WORLDS: A THEMATIC REVIEW
OF
RACE RELATIONS IN PRISON
(2005)
(U.K.),
available
at
http://www.justice.gov.uk/inspectorates/hmi-prisons/docs/parallelworldsrps.pdf. All reports, including those referred to in this paper, can be found on
the Inspectorate‟s website, http://inspectorates.homeoffice.gov.uk/.

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During the inspection itself, a core inspection team of a
team leader and four inspectors spends long days in the prison,
examining every aspect of prison life from reception to
resettlement, segregation to activities. The inspectors have
their own keys to every part of the establishment and are able
to go about unaccompanied by prison staff. They carry out
confidential meetings with prisoners, in groups and
individually, and with staff and managers; and pore over all of
the prison‟s records. They are assisted by specialist healthcare
and substance-use inspectors, and a team of colleagues from
the education inspectorates will examine education and
training, using the same standards as they would if they were
inspecting a school or college in the community.
Inspectors make judgments according to the Inspectorate‟s
own published criteria, called Expectations.13 They are not the
same as the standards that the Prison Service sets itself, or the
contracts that are negotiated with private sector providers.
They derive from, and are referenced against, international
human rights standards.
They look for outcomes, not
processes, and best practice, rather than minimum auditable
standards. They set out, in considerable detail, what a wellrun prison should provide. Sometimes, they will demand
something which an overcrowded prison system cannot deliver.
For example, at present in our local prisons (where
remanded, unsentenced and short-sentenced prisoners are
held) it is common to find two men sharing a cramped cell
meant for one, with an unscreened toilet, sometimes spending
twenty or more hours there, including time spent eating their
meals. In other prisons, there is no in-cell sanitation, and
13. HER MAJESTY‟S INSPECTORATE OF PRISONS, EXPECTATIONS: CRITERIA
ASSESSING THE CONDITIONS IN PRISONS AND THE TREATMENT OF PRISONERS
(2006), (U.K.) available at http://www.justice.gov.uk/inspectorates/hmiprisons/docs/expectations_2009.pdf.
There are separate Expectations
published for juveniles and immigration removal centres. HER MAJESTY‟S
INSPECTORATE OF PRISONS, EXPECTATIONS: CRITERIA FOR ASSESSING THE
TREATMENT AND CONDITIONS FOR CHILDREN AND YOUNG PEOPLE HELD IN
PRISON
CUSTODY
(2009)
(U.K.),
available
at
http://www.justice.gov.uk/inspectorates/hmiprisons/docs/children_and_young_people_
e1.pdf;
HER
MAJESTY‟S
INSPECTORATE OF PRISONS, EXPECTATIONS: CRITERIA FOR ASSESSING THE
CONDITIONS FOR AND TREATMENT OF IMMIGRATION DETAINEES (2007) (U.K.),
available
at
http://www.justice.gov.uk/inspectorates/hmiprisons/docs/immigration-expectations-2007.pdf.
FOR

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prisoners have to resort to using buckets, or throwing feces out
of cell windows.14 That may be unavoidable in practice, given
current population pressures and a shortage of resources.,
However, it is not right, and it is an important function of the
Inspectorate to continue to say so, or else what is normal may
become normative.
Having amassed all this detailed information, inspectors
make judgments about the „health‟ of the prison, using four
tests: whether prisoners are held in safety, whether they are
treated with respect for their human dignity, whether they are
able to engage in purposeful activity, and whether they are
prepared for resettlement back into the community. Inspectors
assess whether each prison is performing well, reasonably well,
not sufficiently well, or poorly, under each of those tests. Then
they make recommendations for improvement: sometimes over
a hundred of them, ranging from relatively minor details, such
as clothing, to major and fundamental issues, such as suicide
prevention or the protection of segregated prisoners.
Following the inspection, the prison must draw up an
action plan, stating whether or not each recommendation is
accepted, and, if so, when and how it will be implemented.
Even though the Inspectorate‟s criteria and the Prison
Service‟s standards are not identical, and some of the the
former are aspirational, in practice around 95% of the
Inspectorate‟s recommendations are accepted.
The Inspectorate returns for another inspection, usually
within 1½ and 2½ years, and always without warning, to check
whether recommendations have in fact been implemented. The
timing and scale of the follow-up inspection is dependent on the
level of concern about the prison: as evidenced by the
judgments made during the inspection and any other
intelligence received in the interim.
Some follow-up
inspections will be full inspections, lasting a week and with a
full team. Others will be shorter and less resource-intensive.
14. See HER MAJESTY‟S CHIEF INSPECTOR OF PRISONS, REPORT ON AN
ANNOUNCED INSPECTION OF HMP /YOI BULLWOOD HALL (2003) (U.K.),
available at
http://www.justice.gov.uk/inspectorates/hmiprisons/docs/hmpyoibullwoodhall031-rps.pdf;
HER
MAJESTY‟S
CHIEF
INSPECTOR OF PRISONS, REPORT ON AN UNANNOUNCED FULL FOLLOW-UP
INSPECTION
OF
HMP
LONG
LARTIN
(U.K.),
available
at
http://www.justice.gov.uk/inspectorates/hmi-prisons/docs/longlartin-rps.pdf.

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Again, it is encouraging that, even in a pressurised system
such as the Inspectorate‟s, around 70% of our recommendations
have been implemented, wholly or in part.
All inspection reports, on full and follow-up inspections,
are published, and the timing and content of the publications
are matters for the Chief Inspector alone. In my nine years in
office, I was never under any political pressure to amend the
content of reports, even when they raised potentially
politically-embarrassing concerns—such as, for example, the
safety of one privately-run prison.
In addition to inspections of individual prisons, the
Inspectorate carries out „thematic reviews‟ into systemic issues
across the prison system as a whole. There have been reviews
into the treatment of women and children, and into suicide,
healthcare and resettlement. Most recently, reviews were
published into older prisoners, race relations in prisons,15
national prisoners, those held in extreme custody (segregation
and „close supervision centres‟), and into the mental health
needs of prisoners. Those reviews take longer to have an effect,
as they ask fundamental questions of the whole system. But
recent marked improvements in prison healthcare, the
management of suicide and self-harm, resettlement, and the
treatment of children in prison can, at least in part, be
attributed to the Inspectorate‟s ground-breaking work.
What then is the specific role of inspection in protecting
prisoners‟ rights? First, and most obviously, it can and does
improve outcomes for prisoners in individual prisons. One
example is Portland prison, a forbidding granite building on
the edge of a peninsula, holding young offenders, aged eighteen
to twenty-one, most of them far away from their London homes.
Inspections around 2000 established that there was a punitive,
over-controlled and potentially abusive and racist regime in the
prison, with little positive efforts being made to change the
attitudes or the life chances of the young men in it. By the
time of its most recent inspection, it was a transformed
institution, with some good relationships between staff and
young men, some excellent training opportunities (including a
football academy using the skills of one of England‟s most
15. HER MAJESTY‟S INSPECTORATE OF PRISONS, PARALLEL WORLDS: A
THEMATIC REVIEW OF RACE RELATIONS IN PRISON, supra note 12.

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famous black ex-professional footballers) and strong and
constructive links with outside organisations that could assist
in the resettlement of the imprisoned young men.
Inspections do not always produce such transformative
results—some prisons are already good, others slip back and
need re-energising—but they are part of a gradual process of
performance improvement. Because the Inspectorate sees all
prisons, it can encourage exporting good practice, as well as
highlight bad practice. Because it is independent of the
system, it can monitor what is actually happening, as opposed
to what Ministers and managers would like to happen, or think
is happening. A classic example of that is the recording of the
number of hours prisoners spend in purposeful activity, which
is often a reflection of what ought to be the case, rather than
what is, and is sometimes a work of imaginative fiction. This
disguises the real extent of the problem prisons face in
providing enough useful work for their growing populations.
Inspection can also promote and support system-wide
changes. One example of this is the treatment of female
prisoners. Women are a small minority of those in prison—
around 5%—but they have specific vulnerabilities and needs.
Their vulnerability is evident from the fact that they account
for 55% of all self-harm incidents in prison; and a few years
ago, the suicide rate among women was two and a half times
that of men in prison.16
Their needs include childcare
responsibilities; over half are primary caregivers of children
under sixteen, and many will lose their homes (and therefore
often their children and possessions) while in prison.17 Those
needs were not recognised in a system designed for adult men.
In 1997, the Inspectorate produced its first thematic report
on women in prison.18 That led to a „re-think‟ throughout the
system and the setting up of a separate management system
for women, which developed women-specific policies and
16. Anne Owers, The Protection of Prisoners Rights in England and
Wales, 12 EUR. J. CRIM. POLICY & RES. 85 (2006).
17. Id. These statistics, and others relating to the women‟s prison
population, can be referenced in WOMEN IN PRISON: A LITERATURE REVIEW,
published by the inspectorate‟s research team in 2006.
18. HER MAJESTY‟S CHIEF INSPECTOR OF PRISONS, WOMEN IN PRISON: A
THEMATIC
REVIEW
(1997)
(U.K.),
available
at
http://www.justice.gov.uk/inspectorates/hmi-prisons/docs/woman_in_prison1996-rps.pdf.

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practices. The number of women in prison, and the suicide
rate, has at least for the present dropped. Women‟s prisons are
no longer separately managed, which has caused some concern,
but the Inspectorate‟s dedicated women‟s inspection team
continues to press for appropriate policies for those women who
are in prison, and alternatives to prison for those who should
not be there.
The Inspectorate regards Expectations as a text-book for
those seeking to run good, „healthy‟ prisons. Because it derives
from international human rights principles, it can be, and has
been, used outside the UK. It has been used to inspect
women‟s prisons in Canada (on the invitation of the Canadian
Correctional Services) and it has been shared with officials and
penal reformers from many other countries.
Importantly, especially in light of Opcat, inspection is also
preventative. The law—both litigation and legislation—tends
to be activated when abuses or failures have taken place. One
of the tasks of inspection is to alert organisations to problems
that could turn into abuses or failures. For example, inspectors
found prisons where prisoners‟ emergency call bells go
unanswered, where those on suicide watch are not properly
monitored or supported, or where staff on night duty are
unaware of emergency procedures. Correcting those problems
can save lives. Governors of prisons are, of course, responsible
for what happens, or does not happen, in their prisons—and
many are good and conscientious managers. But I was never
on an inspection where we were not able to point out to the
Governor something that he or she did not know about the way
the prison was actually running. Sometimes those are small
things, but at other times, they are very important, and are
corrected before we leave the prison.
In order to secure changes, inspection has to work with the
system, while remaining separate from it. It is important,
therefore, that the Inspectorate understands the workings of
prisons, and the pressures on those who work in them. Half of
the inspectors are drawn from a prison background (though all
are chosen by the Inspectorate, not the prison service); the
other half bring a variety of skills and experience—e.g., social
work, probation, psychology, civil service, and healthcare or
drug treatment work. No Chief Inspector has ever worked for
the Prison Service, and the post-holder is a Crown

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appointment, not a civil servant. That independence from
government, and the balance between understanding the
system from the inside and examining it from the outside, is
crucial.
Finally, inspection is a key part of the public accountability
for prisons. Prisons operate out of sight of the general public.
Inspection is the eyes and ears of the public, even when it does
not want to see or hear. Published reports alert Parliament
and the public to what is actually happening in their prisons.
Prison reform is not a popular issue, but the sense of outrage
and concern provoked by some of the worst inspection reports
creates a political space in which Ministers can, and sometimes
must, improve prison conditions.
Moreover, by bringing into the public domain some of the
hidden aspects of imprisonment, inspection can also assist
litigation. Inspections of juvenile prisons brought to light
practices that were not compatible with international or
domestic law on the protection and safeguarding of children;
indeed, in some cases they specifically said that the involved
establishments would have been closed down had they
operated outside the prison system, or that some individual
children within them were at risk of significant harm.19 Those
reports, and others, were put before the court when a case was
taken to determine whether children in prison came within the
ambit of the Children Act,20 an act which imports into UK law
the principles of the UN Convention on the Rights of the Child.
The court held that the Act did apply to children in prison,
even though it did not bind the Prison Service itself.21 That
moved forward a process of change and reform that had
19. See HER MAJESTY‟S CHIEF INSPECTOR OF PRISONS, A FULL ANNOUNCED
INSPECTION OF HM YOI WERRINGTON (2002) (U.K.), available at
http://www.justice.gov.uk/inspectorates/hmi-prisons/docs/werrington-ann1rps.pdf; HER MAJESTY‟S CHIEF INSPECTOR OF PRISONS, HM YOI STOKE HEATH
REPORT OF AN ANNOUNCED INSPECTION
(2000) (U.K.),
available at
http://www.justice.gov.uk/inspectorates/hmi-prisons/docs/stokeh001-rps.pdf;
HER MAJESTY‟S CHIEF INSPECTOR OF PRISONS, REPORT ON A FULL ANNOUNCED
INSPECTION OF HM YOI/RC ONLEY (2001) (U.K.), available at
http://www.justice.gov.uk/inspectorates/hmi-prisons/docs/onley_reportrps.pdf.
20. See
Children
Act,
1989
ch.
41,
available
at
http://www.opsi.gov.uk/acts/acts1989/ukpga_19890041_en_1.
21. See Administrative Court (part of the Queen's Bench Division of the
High Court) ref CO/1806/2002 (29 November 2002).

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PRISON INSPECTION

1547

already begun to happen—though there is still some way to go.
The UK system of prison inspections (there are also Chief
Inspectors for Scotland and Northern Ireland) is therefore an
important part of the protection of prisoners‟ rights. It is now
also, as stated above, a key part of the UK‟s compliance with
Opcat, as a central part of the required NPM. This is an
exciting
new
development,
both
domestically
and
internationally. Within the UK, it provides a platform for
examining and reporting on systemic issues and problems—for
example, the use of force to secure compliance or maintain
discipline; the treatment of mentally disordered individuals;
and the appropriate way to sanction and care for disturbed or
delinquent children. Outside the UK, it is already leading to
information exchange, seminars and potential cooperation with
NPMs in other countries.
Having said that, it is important to stress that models for
protecting prisoners‟ rights cannot simply be packaged up and
exported wholesale to another country. Protecting prisoners‟
rights requires a multi-layered approach, and any mechanisms
for doing so need to be effective within the political, social and
legal cultures of each jurisdiction.
In the UK, Prisons
Inspectorates are a key part of that mechanism. Together with
the involvement of citizens (in Independent Monitoring Boards)
and the resolution of independent complaints (through the
Ombudsman), this does provide a basis of independent,
accountable and robust scrutiny to protect the rights of those
that the state detains.

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