Having looked at the differences between the different regime levels and how a prisoner can be moved between them, today I’ll focus on how you can appeal against an unfavourable decision, what that means for the prisoner, and how the whole scheme can affect a prisoner who maintains their innocence.
In theory the appeal system should be fair and proportionate. In reality it is neither. As I mentioned yesterday, if a prisoner is demoted from Enhanced straight to Basic for a single serious incident, and then found not guilty of any wrongdoing, they aren’t even given their Enhanced back under the provisions of the Prison Service Instruction. There is nothing fair about it.
However, the PSI does set out the theory so I’ll start by comparing that against the reality. If a prisoner is upgraded or downgraded as part of a standard review then this can he done by a ‘Band 4’ (senior officer). But if they are demoted as a result of a single serious incident it must be done by a ‘Band 5’ (custodial manager – the equivalent of what used to be the old principle officers). There is no need to involve any further members of staff any more and the individual can make the decision based solely on their own whims. An appeal process is vital then. In theory prisoners must be able to make prior representations, but in my experience I have never been allowed to and even those I know who have been permitted to do so, have found that they are largely ignored. When I was last faced with this I appealed against being downgraded on the grounds that I wasn’t even aware I was being reviewed, let alone invited to make representations. In reply they simply lied and said I participated fully in the review and my views were taken into account. They seemed to have missed the point that I was in segregation, locked in my cell at the time the review was conducted.
Any appeals are meant to be considered by a member of staff senior to the one who made the decision to downgrade. In reality the best you can hope for is for it to be answered by someone else of the some rank. Usually it will be answered by the decision maker themselves. I have never known it to be anyone senior and nor have I ever known a decision maker to overturn their own decision.
If you are prepared to fight for it, you can get your appeal to someone senior at the second hit, but never at the first, and even if you are successful, it is very rare for decisions to be reversed even by someone senior. I was once downgraded for receiving too many IEP warnings despite the fact that I only had one (less than the minimum) and this was for blanking an officer and walking away from him on the day prison staff told me my grandmother had died. I appealed, explaining the circumstances and why I just wanted to be left alone and eventually got it to a senior member of staff. His reply stated “There are 64 other prisoners on the wing all with the same problems. Amend your behaviour.” That was seven years ago and I still don’t know what to say to that.
The PSI also states that decisions must be open, fair, and consistent. When I was in a juvenile prison I received a minor adjudication and was informed by the Senior Officer that anyone who is out on report must be downgraded. My appeal was rejected along similar lines. A week later another prisoner received a more serious adjudication (for violence) but remained on Enhanced regime. Yes. Consistent.
The PSI further sets out that assessments should be based upon the prisoner’s efforts to meet requirements, and also that the IEP scheme should not penalise behaviour which is the direct consequence of a protected characteristic such as disability or age. So, for example, to gain Enhanced you are required to participate fully in work and to help other prisoners and staff. If the only work available is located up a flight of stairs, a wheelchair bound prisoner should not be denied Enhanced for not working. Similarly, a prisoner could apply for jobs as a listener, as a Toe by Toe Supporter, as a ‘Buddy’, a peer supporter, a recovery champion, a wing representative, or as a disability assistant but if there are no vacancies they cannot obtain such a role. They have nevertheless made the effort though and so they should not be denied their Enhanced. And yet I have known both of these types of people to be denied Enhanced on my wing alone. In fact, I have even known an education mentor (who is clearly helping others) to be demoted from Enhanced because although he is helping others, education mentor is not one of the examples of how this might he done listed in the PSI.
The final thing which must be considered on an appeal against a decision to downgrade is that objectives linked to offending behaviour programs should be based on the treatment manager’s assessment of the prisoner rather than attendance on a program. It wouldn’t be fair to downgrade a prisoner for not completing the Thinking Skills Program when the treatment manager doesn’t believe the prisoner needs to do this course and so will not offer them a place. This has a direct impact on those who are maintaining their innocence. Most prisoners who say they are not guilty of the offence they have been convicted of also believe that participating in offending behaviour courses means admitting to something you didn’t do. My advice to people in this situation has always been the same and I can tell you that those who have taken it have invariably gained and maintained their Enhanced status. Instead of point blank refusing to do a course or saying you can’t do it, ask to do it. Ask to be assessed. When the assessment is carried out and you are asked what happened play the politician. Instead of saying you didn’t do it or, worse, lying and saying you did, say something alone. the lines of, “I have no memory of committing the offence but I have been convicted of x, y, and z, (giving details) and I would like to explore this further in order to address any risk factors which are raised by these convictions.” This almost always leads the treatment manager to say you are not suitable for the program because you are not admitting to the offence, but as long as you have kept written copies of your requests to participate in the relevant courses, they cannot say you are unmotivated. In other words, you could he deemed eligible and suitable for a course, but not ready for the course. The PSI states that where the offender is not ready due to denial the prisoner’s refusal to undertake the course will prevent him from obtaining Enhanced, or perhaps even Standard regime status. But if you have not refused either directly or indirectly, then this should not be used against you. That said, prisons are often a law unto themselves and may occasionally downgrade under the pretence of other reasons simply out of spite. But the point remains. If you choose your words carefully, you can avoid many of the commonly experienced headaches faced by prisoners who maintain their innocence.
Overall the IEP appeals system and the way the scheme is applied to those maintaining their innocence is no different to the PSI as a whole or to most PSIs. The theory is great and every rule is there for a reason. The way it is applied in reality is something else entirely.