Monitoring, Inspection and Complaints Adjudication in Prison: The Limits of Prison Accountability Frameworks

AuthorRICHARD KIRKHAM,CORMAC BEHAN
DOIhttp://doi.org/10.1111/hojo.12184
Published date01 December 2016
Date01 December 2016
The Howard Journal Vol55 No 4. December 2016 DOI: 10.1111/hojo.12184
ISSN 2059-1098, pp. 432–454
Monitoring, Inspection and
Complaints Adjudication in Prison:
The Limits of Prison Accountability
Frameworks
CORMAC BEHAN and RICHARD KIRKHAM
Cormac Behan is Lecturer in Criminology and Richard Kirkham is Senior
Lecturer in Law, University of Sheffield
Abstract: This article examines the framework for prison accountability in England and
Wales,the Republic of Ireland and Scotland. Despite variations in both policy and practice
between the three jurisdictions, what is striking are the similarities in their shortcomings.
These deficiencies, whether based on real or perceived grievances, potentially undermine
efforts to call prison governance to account. The article argues that not only should the
primary bodies involved in prison accountability be independent and robust, for prisoners
to experience these bodies as legitimate, transformational changes in penal culture and
internal prison power dynamics must be addressed.
Keywords: prison oversight; accountability frameworks; prison governance;
prisoners’ rights
It is widely accepted that upon incarceration, the burden on the State is
to provide a meaningful institutional framework which allows prisoners to
assert or protect their rights (European Prison Rules 2006; United Nations
Standard Minimum Rules for the Treatment of Prisoners 1957, 2015). To
address this responsibility, the Republic of Ireland, England and Wales,
and Scotland have all adopted a tripartite structure of independent prison
accountability; one built around systems and institutions of monitoring,
inspection and complaints adjudication (hereafter the ‘tripartite model’).
Monitoring arrangements have developed with local citizen input. Inspec-
torates have been set up to provide autonomous oversight. The complaint
system is increasingly premised on the desirability of establishing indepen-
dent prisoner ombudsman schemes.1
Notwithstanding the potential benefits of independent oversight, this
article interrogates the extent to which we can expect the tripartite model
to protect prisoners’ rights. Through a review of evidence of the perfor-
mance within the tripartite model as it operates in England and Wales, the
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2016 The Howard League and John Wiley & Sons Ltd
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK
The Howard Journal Vol55 No 4. December 2016
ISSN 2059-1098, pp. 432–454
Republic of Ireland, and Scotland (hereafter the ‘three jurisdictions’), it
makes the argument that, despite differences in design, there are marked
similarities in the problems experienced in securing prisoner confidence
in the tripartite model. These problems impact on prisoner engagement
with the bodies designed to protect them and subsequently affect their
capacity to secure redress. In this article we suggest that the main explana-
tion for the problems with existing accountability structures may lie not in
their design features, but in the need to address penal culture and power
imbalances.
This article begins by sketching out the distinct form of prison account-
ability in all three jurisdictions (Section A). A theoretical defence of the
tripartite model’s capacity both to protect prisoner rights and enhance the
legitimacy of prison governance is then offered (Section B) before the ar-
ticle analyses evidence (or absence of) as to its effectiveness (Section C).
We conclude by identifying possible reasons for the limitations of the tri-
partite model. We argue that while gains have been made through the
construction of the tripartite model, for any accountability framework to
be fully effective it will require penal culture to be transformed to allow for
complaining to be viewed as a positive expression of purposeful activity.
This argument goes beyond binary judicial and administrative processes,
and relates to recent work which highlights the importance of delibera-
tive processes within prisons to engage prisoners and engender legitimacy
(Section D).
A. Monitoring, Inspection and Complaint-handling
in the Three Jurisdictions
In the three jurisdictions, a common tripartite institutional approach has
come to dominate the accountability frameworks around prisons. Although
the pace of adoption has varied, within this approach three separate mech-
anisms are relied upon to uphold prisoner rights. These mechanisms are
introduced here.
Monitoring
In all three jurisdictions, some form of independent prison monitoring ar-
rangement operates. Monitoring arrangements are based on local citizens
entering prisons on a regular basis to meet with prisoners and thereafter
reporting their findings both to prison officials and government. Prison
monitors are generally concerned with low-level issues (which can take on
a much greater importance in prison), such as loss of property, education
and purposeful activity, resettlement and sentence planning.
For monitoring purposes, the Republic of Ireland has visiting commit-
tees for each prison, whose members are appointed by the Minister for
Justice. Their role is ‘from time to time and at frequent intervals to visit
the prison in respect of which they are appointed and there to hear any
complaints which may be made to them by any prisoner’ (Prisons (Vis-
iting Committee) Act 1925, Section 3(1)(a)). Visiting committees attend
prisons on a regular, usually monthly, basis and each committee issues an
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2016 The Howard League and John Wiley & Sons Ltd

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