Introduction
The ability of consumers to complain about the service received and goods bought is held to be one of the mainstays of a consumer society, part of the set of assumptions about equality of opportunity and an essential part of consumer identity. In this blog item I want to explore to what extent prisoners can successfully complain about their experience as owners of property and consumers in relation to the four main issues that arise, namely, the theft, loss or damage of in-possession property within a prison, the theft, loss or damage of in-possession property when prisoners are transferred between prisons, issues arising from lack of access to stored property and issues connected to the use of outside suppliers of ‘canteen’ and ‘catalogue’ goods.
This will entail examining the following tiers of complaint and potential remedy:
- the prison complaints system;
- complaints made to the Independent Monitoring Board (IMB);
- complaints made to the Probation and Prisons Ombudsman (PPO); and
- prisoners’ statutory rights as consumers when purchasing items from the ‘canteen’ and ‘catalogues’.
An examination of this issue reveals yet another tier of deprivation for prisoners in relation to goods and services. Prisoners are indeed provided with multiple tiers of complaint. But such remedies are slow and largely ineffective, leaving prisoners with a residue of resentment, frustration and bitterness. The ineffectiveness of and delays associated, with the complaint systems, adds yet further to their status as consumers, rendering them quinary status consumers.
Prisoners’ property and the prison complaints system
In normal circumstances prisoners are ‘required to sign a disclaimer that they hold “in possession” property at their own risk’ ( PSI 12/2011 Para 2.82). Of course this means that property held in store by the prison is the responsibility of the prison and that if normal circumstances do not apply – for example because the prisoner is unable to exercise such reasonable care due to being incapacitated due to illness or injury and removed to a hospital or because she/he is involuntarily removed from the normal population and placed in ‘seg’ or transferred to another prison – the prison takes responsibility for the safe keeping of in-possession property and systems should be in place to ensure that procedures are followed.
This picture is complicated still further by the fact that prisoner transport (to/ from court, to other prisons) is provided by private, for-profit companies using vehicles that are rarely able to move a group of prisoners with all their property. This results in prisoners’ property, contained in unlockable, volumetric boxes or more likely, black plastic bin bags, frequently becoming separated from the owner, perhaps left behind in the last prison of residence. About 20% of all prison complaints concern prisoners’ property that has been lost, damaged or stolen in transit according to HMIP 2016-17 Annual Report (2017:108).
Prisoners can make use of the prison complaints system in order to try to recover the property, and if the property cannot be recovered, obtain compensation, and generally object to their treatment in connection with the matter. They can also complain about their lack of access to their stored property as well as try to locate canteen or catalogue items that have not been delivered. The complaints system has a number of layers. Prisoners are encouraged to speak to relevant prison staff, including their personal officer or key worker or make a wing application, before making a formal complaint. They then are able to make a formal complaint by filling in an appropriate form (Comp 1) and putting this in the complaints box normally located on every wing. Current rules specify that a reply to a complaint must be received within five working days (PSI 02/2012 Para 1.5).If the prisoner does not receive a reply in a reasonable period, or if the reply is not satisfactory, then they then may choose to fill in a Comp 1A form about the same matter either to complain about the timeliness of the response and/or the adequacy of the reply.
Such a process inevitably leads to delay partly caused by the multiple levels involved (personal officer/key worker, wing application, Comp 1, Comp 1A) and partly caused by the failure of the prisons to keep to the deadlines for reply to complaints. Such delays sometimes result from complicated patterns of transfer between prisons as well as for other reasons. Prisoners are not convinced that the prison complaints system works very well – thus although 55% of male prisoners and 65% female prisoners indicated that it was easy to make a complaint, far fewer were satisfied with the outcome of the complaints that they had made with only 30 % of male prisoners and 36 % female prisoners being satisfied that they had been treated fairly and 24% of male prisoners and 35 % female prisoners being satisfied that their complaint had been dealt with in a timely manner. Similarly 24% of male prisoners and 43% female prisoners indicated that they could not get access to their stored property when needed (HMP 2017-18 Annual Report 2018).
Prisoners’ property and the Independent Monitoring Board (IMB)
If the result of making a prison complaint remains unsatisfactory or takes an excessive amount of time, then the prisoner can take her/his case to the IMB. IMB members are doubly confined – they are part of a Board at only one prison and their brief is not act as prison management but encourage those who exercise governance in the prison to remedy clear and evidenced wrongs. Where this is not done, then IMB members may resort to regional managers and ultimately the MOJ.
Clearly Independent Monitoring Boards are placed at a disadvantage when, as is often the case prisoners’ property is lost during prison transfers and the sending and receiving prison, as is indicated in the PPO report (below), tend to pass the responsibility to one another. This situation is exacerbated when staff administration of cell clearances and property handling has not been as it should be.
As I noted in my previous blog item (27th February, 2018) on prisoner’s property 22% of all applications made to the IMB in all the prisons in the NW concerned property, and of these the main issue concerned lost, stolen or damaged in-possession property whether on inter- or intra-prison transfer (55% and 45% respectively). This longstanding problem and the clear inability of local or national IMB to remedy the matter, led to a report by the IMB in 2015 regretting the then current situation, noting its longstanding nature and suggesting policy remedies. Despite the obvious difficulties here (the waste of staff time, the genuine grievances of prisoners, taxpayers’ money being paid out in compensation), to date a solution has not been found. Furthermore, the MOJ have not made any significant changes to date or proposed such changes in the HMPPS Business Plan 2018-19 (July 2018).
Prisoners’ property and the Prison and Probation Ombudsman (PPO)
Once the prisoner has exhausted the internal system by using the prison complaints system and the IMB, they may apply to the PPO to remedy the matter. The PPO makes a preliminary determination of whether to accept the complaint, and if it does accept the complaint, undertakes an investigation.
In 2012-13 property-based complaints made up 21% of all complaints referred to the PPO and have never fallen below 14% of such complaints since 2004. 57% of property-related investigations were upheld (PPO 2014:5).
The PPO report identified two main problems:
- Administration of property. The PPO (2014:15) noted that ‘Issues related to the administration of property were prevalent across the upheld complaints in the sample. In nearly three-fifths of the upheld investigations, the complaints came as a result of a prisoner’s movement, either internally within the prison or when transferring to another establishment; a time where administrative processes were most likely to break down. The upheld complaints often raised concerns about the completion of property cards and cell clearance certificates. This documentation provides an audit trail for both prison staff and prisoners and so requires accurate completion and regular updates.’
- Taking responsibility. The PPO noted a regrettable tendency for sending and receiving prisons not to take responsibility for the matter (PPO 2014:18).
The PPO (2014: 27-28) report went on to make a number of recommendations including that prisons accept responsibility where processes have not been followed, that they respond effectively to prisoners’ complaints, ensure paperwork is completed correctly and, somewhat surprisingly, that they manage prisoners’ possessions as required in Prison Service Instructions. But the report was published in 2014 and the problem has continued. The PPO Annual Report 2017 indicates that the problems have continued if not worsened and that
‘it is really time for the Prison and Probation Service, as a whole, to get a grip on the way prisoners’ property is managed’ ( page 53).
Prisoners’ statutory consumer rights
The external suppliers involved in the canteen are DHL (HMIP 2016:8) and there are four approved catalogues including those from Argos and Amazon. The prison aspect of the receipt of canteen and catalogue products is regulated by PSI 23/2013. This explicitly states that:
‘6.10 Products are distributed to prisoners either through a central serving point with prisoners called forward in manageable groups, or direct to their cells. The method used is decided upon according to the preference of the establishment….
6.11 A system must be in place to ensure that the prisoner identity is verified and the packed order is handed to the correct prisoner. Prisoners may not collect bags on behalf of other prisoners. Prison Service staff may sign and take responsibility for orders where prisoners are not present at the time of distribution. They must check that the contents are correct before doing this.
6.12 Irrespective of the approach to distribution, prisoners must be given a reasonable opportunity to inspect the products being sold to them before acceptance. Prisoners may reject products according to their statutory rights. Proof of acceptance must be gained from the prisoner and the prisoner issued with a receipt clearly itemising the products that have been sold to them, the unit price paid, and the total amount charged to them. If goods are rejected, then a credit note must be given.’
Prisoners, according to PSI 23/2018, have the same consumer rights as citizens on the outside. When they buy anything from a supplier a contract is entered into and conveys rights protected by law.
These include:
- If the item was purchased by mail order, the Consumer Contracts Regulations (CCR) 2013 allow cancellation of the order within 14 days, providing a further 14 days to see that it is returned. Only certain ‘personalised items’(e.g. underwear) and perishable items are excluded.
- Mail order goods must conform to the Consumer Rights Act (CRA) 2015, which says all goods and services purchased must be of satisfactory quality, be fit for purpose and be as described. If the goods do not conform to one of these standards then they are classed as faulty goods and can be returned for a refund, repair or replacement depending on the length of time they have been held by the consumer.
- Finally, the Consumer Protection Act (CPA) 1987 conveys a right to claim compensation against the producer of a defective product if it has caused damage, death or personal injury. The act also contains a strict liability test for defective products in UK Law making the producer of that product automatically liable for any damage caused. Anyone who suffers damage as a result of the defect is entitled to claim – not just the person who bought the product.
There are a number of issues evident here, although data on this is very limited. Hints are evident, however, of delivery chain problems. The goods enter the prison and then have to be distributed to prisoners. This creates the possibility that they could be lost or damaged or that the goods are delivered to the wrong prisoner. It could be difficult for prisoners to reject goods under the CCR as the receipt of goods by the prisoner may be delayed by internal mechanisms within the prison and thus the 14 day window not met. Prisons are large organisations and sometimes poor communications in them can contribute to either of the two above issues.
Conclusion
This blog item reveals yet another tier of deprivation for prisoners in relation to goods and services. A multi-tiered complaints system is readily available to prisoners. But each of the tiers have multiple problems, and the need to exhaust the previous system, before proceeding to the next, leads to frustration and delay. In addition the available remedies seem not to be able to encourage relevant authorities to, as the PPO put it back in 2017, ‘get a grip’ whether the authorities be prison officers who do not follow cell clearance procedure, wing managers who fail to respond to prisoners genuine concerns, governor grade staff who stand back and do nothing and, finally, the politicians who run the MOJ who, so far, have merely postponed action to the future. Their inability to address real grievances causes prisoners much frustration, bitterness and a clear sense of being treated unfairly and reduces to quinary status consumers.
Blog items 5-7 have shown that prisoners in England and Wales in the 21st century experience material deprivation related to the general environment they inhabit as determined by accommodation and prison catering, but also that the socio-economic background of most prisoners combined with the rules that prisons enforce, often necessarily and thus understandably where matters of security and control are concerned, produce a situation of acute ‘income’ shortage (poverty?), which combine with structured limitations on access and the considerable limitations imposed on their ability to complain about their treatment, to produce acute deprivation of goods and services and pushes prisoners into a position as quinary status consumers.
In the next blog item we examine how prisoners adapt to this situation recognising, as did Sykes some 60 years ago, that there is a fundamental contradiction at work here, the very processes associated with imprisoning convicted offenders exacerbate their already damaged status as consumers producing a variety of adaptations which almost inevitably bring them to engage in rule-breaking conduct and contribute to prison disorder.
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