Too ‘Independent’ for the Independent Monitoring Board?

Too ‘Independent’ for the Independent Monitoring Board?

Law change on undercover cons

A man who once spent time in prison and is now a member of the Independent Monitoring Board (IMB) at Norwich Prison, has forced the government to change the law – banning IMB members from having access to information, previously unknown to exist, which is
gathered by prisoners or staff who have been acting as under cover intelligence
gathering agents.

Ray Bewry, who once spent two months on remand at Durham jail before all charges against him were dismissed, has been on the Norwich Board for seven years. He is thought to be the only person with personal experience of being a prisoner ever to serve on an IMB.

In December 2006 Mr Bewry was investigating a complaint by a prisoner at Norwich jail (known only as Prisoner ‘F’) who wanted to know why he had been ‘ghosted’ from Highpoint prison to Norwich and why, on his arrival at Norwich, he had been recategorised from C to B without any explanation as to why he had been transferred or why he had been recategorised.

When Mr Bewry began to investigate Prisoner F’s complaint he was told by a governor at the prison that intelligence received from Interpol showed F had been convicted of a serious sexual offence in Germany. However, When Mr Bewry then went to check prisoner ‘F’s security file to confirm what he had been told he could find no evidence of any such information, from Interpol or anyone else, and in the absence of the prison providing any information to justify the Interpol claim Mr Bewry upheld the inmate’s complaint that he had been unfairly recategorised.

Following this Mr Bewry made repeated attempts to discover why prisoner F was being blocked from open conditions, but the prison placed restrictions on how Mr Bewry could access security information which says Mr Bewry prevented him from having sight of inmate security files or access to Security Information Reports (SIRs), not only in relation to prisoner F but in respect of all inmates at the jail.

Operating under the restrictions imposed by the prison Mr Bewry nonetheless managed to discover that prisoner F’s name appeared on a list of inmates who were believed to pose specific threats to females but he could not discover why that was.

Mr Bewry said, ‘The restrictions imposed on me by the governor effectively prevented me from investigating why F was placed on this security generated list of prisoners who apparently posed a ‘threat to females’ and which negated his move to open conditions – I knew something was not quite right and these restrictions were a disgraceful and unlawful attempt to prevent me from doing what is my clear duty as a member of the IMB – which is to investigate complaints – and I was not going to allow it to happen’.

IMB members are appointed by the Secretary of State to every prison and YOI in the country, their purpose to act as watchdogs of the public interest and ensure prisoners are treated properly and according to law. Mr Bewry sought to rely on Rule 79 of the Prison Rules 1999, which at the time stated that a member of the Board of Visitors – as IMB members were legally then known – were allowed access to all the ‘records’ of a prison.

However, when Mr Bewry tried to quote this rule as the basis for his legal authority to have unfettered access to Security Files and the SIRs, he was told he could not see them and was referred to as a ‘trouble-maker’.

‘There was a clear view held by some staff at the prison that just by exercising the legal rights which Parliament had given me to investigate the complaints of prisoners, and have access to all the records inside the prison as a part of that process, that I was not in some way ‘playing the game’. But I wasn’t there to play anyone’s game, to me the word ‘Independent’ in Independent Monitoring Board means exactly what it says, you hold the balance between the governor and the internal discipline and control of the prison on one hand, and the welfare of prisoners on the other.

‘Some staff at the prison called me a troublemaker, and I’m sure they hoped that if they prevented me from having access for long enough that I would just go away. I wasn’t about to do that – as a former prisoner I understand how important these things are”.

Eventually, after many complaints to the IMB Secretariat at the Home Office, the body which oversees the work of the 138 IM Boards around the country, Mr Bewry was finally told he could have access to the information he wanted.

‘They told me I could have access to all inmate Security Files and to all of the SIRs, but then added, perhaps by a fortuitous slip of the tongue, that while I could have access to these things I would not be allowed any access at all to what they called ‘CHIS’. To be honest I didn’t even know what ‘CHIS’ was, I’d certainly never heard of it before, but I was then, of course, absolutely determined to find out’.

CHIS (Covert Human Intelligence Source information) is intelligence information which is secretly gathered by either inmates or staff inside a prison to assist in the investigation of crime. It finds its legal focus in Part 2 the Regulation of Investigatory Powers Act 2000 (RIPA). Section 26(8) of RIPA states that a person is a CHIS if they are authorised to establish and maintain a personal or other relationship with a person for the covert (secret) purpose of intelligence gathering. RIPA states a
relationship is based on CHIS ‘If, and only if, carried out in a manner calculated to ensure that persons subject to the surveillance are unaware it is taking place’.

According to RIPA, the CHIS information to which Mr Bewry was told he would not be allowed to have access, is that information which comes from ‘monitoring, observing, listening to persons, their movements, conversations, other activities or communications, recording anything monitored, observed or listened to in the course of surveillance, by or with the assistance of a surveillance device’.

‘I was absolutely astonished to discover that this was even going on. No other member of the IMB seemed to be aware that this CHIS intelligence gathering may have been happening inside the prison’, said Mr Bewry, adding, ‘but I still felt that if it was happening inside Norwich prison then the record of it amounted to a ‘record of the prison’ within Rule 79 of the Prison Rules and, as an IMB member I was by law allowed to have access to it’.

Mr Bewry requested access to any CHIS information inside the prison but this was categorically refused. ‘I sought legal advice and that advice was very clear – CHIS information held within the prison was a ‘record’ of the prison and Rule 79 meant that I could have access to it. So I launched a legal challenge to the Secretary of State’s refusal to permit such access’.

In October 2007, two weeks before Mr Bewry’s case was due to come to trial at the High Court in London, the Government changed the law. By way of a Statutory Instrument (Prison Amendment Rules 2007: SI: 2954) they changed Rule 79 of the Prison Rules 2000 with the following amendment – ‘A member of the [IMB] shall have access to the records of the prison, except that members of the board shall not have access to any records held for the purposes of or relating to conduct authorised in accordance with Part 2 of the Regulation of Investigatory Powers Act 2000’.

‘Its not been a wasted journey. At least we have obtained clarity of the powers which IMB Members possess,’ said Mr Bewry. ‘No longer can IMB Members be told they cannot see a Prisoner’s Security File or be prevented from having access to SIRs, and to that extent it has been very useful and has strengthened the IMB system’.

And what of Prisoner ‘F’, what became of his complaint? Mr Bewry explained. ‘Following an ongoing dispute with the IMB Secretariat with regard to my reappointment, I have been unable to carry out my duties as an IMB member at HMP Norwich since 31st December 2006. I have therefore been unable to complete my investigation into F’s complaint or report back to F.

‘On the basis of my investigations to date, I have serious concerns with regard to F’s treatment and care. I consider that far more could and should have been done for F by the Prison, the Probation Service, the Prison and Probation Ombudsman, the Parole Board and, last but not least, the Independent Monitoring Board.

‘I considered it my duty as a member of HMP Norwich IMB to whom F made his complaint to report these concerns to the Secretary of State and ask him to take the action he considers appropriate and, having done that, there is nothing more I can do’.

Almost a year after Mr Bewry was suspended, and almost six months after Parliamentary Under
Secretary of State, Gerry Sutcliffe, wrote a letter seen by ConVerse dated 5 June
2007 promising to send a ‘substantive reply in the next few weeks’, Mr Bewry is still suspended, still unable to return to his position on the IMB at Norwich prison, and still unable to complete the investigation he started for Prisoner F, over a year ago.

A Justice Ministry spokeswoman told ConVerse, ‘No decision has yet been made in respect of Mr Bewry’s reappointment’.

Mr Bewry will be telling his full story in an exclusive article for The Prisons Handbook 2008, which is published by Prisons.Org.UK Ltd, next month.

IMB: IS THE SYSTEM IN NEED OF REFORM?

There have been IMBs in our prisons, under one title or another, since the Prisons Act 1898 when they were created for local prisons, convict prisons already had Visiting Committees who were appointed by Magistrates at the local Quarter Sessions; when the Courts Act 1971 abolished Quarter Sessions, IMBs were created for all prisons.

Until a decade ago IMBs had substantial disciplinary powers and they were not afraid to wield those powers in disciplinary adjudications - after the Hull Riot in 1976, an event which gave rise to judicial intervention in the adjudication system for the first time with case of Ex.parte St Germain. the Hull IMB toured the country and sitting without a qualified clerk and with prisoners not having any legal representation they ordered that over 90 years worth of additional days (or lost remission as it was called then) should be added to prisoners’ sentences.

However following this, and sustained criticism from the High Court in a whole range of other disciplinary hearings where their decisions were quashed by the courts for unfairness, they were stripped of their disciplinary powers completely. Today IMBs have only a pastoral function with no disciplinary powers at all, and even their powers to renew segregation orders have been removed.

While members of the IMB are selected from the local community which surrounds the prison on whose Board they serve, they are not selected by that community and nor are they answerable to it; selection is by and their answerability is to the Secretary of State.