Sophie van der Valk and Mary Rogan
The Irish Prison Service has taken steps over the last number of years to make amendments to the complaints procedure for prisoners, creating a new mechanism to deal with complaints in 2013 in the Prison Rules (Amendment) 2013. While this mechanism allowed for the development of a formal procedure for lodging complaints, it was criticised by the Inspector of Prisons in his report entitled ‘Review, Evaluation and Analysis of the Operation of the present Irish Prison Service Prisoner Complaints Procedure’ for its lack of an independent external component. This criticism was accepted by the then Minister of Justice in 2016 and the Inspector’s specific recommendation to extend the Ombudsman’s mandate to cover prisoner complaints was accepted. This acceptance was forthcoming in June 2016. In April of 2017, the role of the Ombudsman was once more raised at the Prison Officers’ Association Annual Conference by former Minister Fitzgerald, where she stated that discussions in relation to the role of the Ombudsman were at an advanced stage. The Minister expected the role of the Ombudsman to be incorporated into the complaint mechanism by the end of this year. In light of the above, this post will examine the possible role of the Ombudsman, suggestions for how this would operate, and other issues which need to be considered
While the introduction of the role of the Ombudsman is certainly a welcome development, the scope of the Ombudsman’s mandate and the functioning of his role should still be kept under review to ensure prisoner complaints are dealt with properly and prisoners are afforded a true opportunity to be heard. The current proposal suggests that the Ombudsman will serve as an external appeal process for the existing internal mechanism. This is similar to the role of the Prison and Probation Ombudsman in the UK, however, in Ireland the role will be given to the general Ombudsman rather than establishing a specific mandate. Arguments have been put forward for and against a specific Ombudsman for prisons given the specific nature of the prison environment and the need for accountability in an institution generally hidden from public scrutiny. In Ireland, there is a strong argument in favour of the involvement of the general Ombudsman due to the already well-developed expertise in the area of public body decision-making. It is to be hoped that specialist prison expertise will also be employed by the Ombudsman in light of the particular complexities and dynamic at issue in the prison environment. Another important consequence of the involvement of the general Ombudsman concerns the symbolic point that prisons are a part of the public service more generally.
It will also be important to examine the interaction between the internal complaints procedure and the actions of the Ombudsman. As outlined by Mary Seneviratne, in her examination of the UK Ombudsmen dealing with prisoner complaints, the internal complaints mechanisms can be long and complicated and difficult to access for specific groups of prisoners (Ombudsmen and Prisoner Complaints in the UK, Journal of Social Welfare and Family Law Vol. 34(3) 2012 p.339). These concerns are especially pertinent when combined with what can be challenging time limits for bringing complaints to the attention of the Ombudsman, especially amongst people with backgrounds of educational inequality.
Additionally, the role of the Inspector of Prisons will have to be considered. Presently, it is for the Inspector of Prisons to conduct thematic reports at the request of the Minister on prison issues and to have a general oversight role in relation to serious complaints as outlined in s.2(12) of the Prison Rules (Amendment) 2013. The Inspector’s role in the complaint process will need to be considered as it is unlikely that the Inspector would or should be involved in reviewing actions taken by the Ombudsman as these are both independent statutory bodies. (‘Review, Evaluation and Analysis of the Operation of the present Irish Prison Service Prisoner Complaints Procedure’ Recommendation 16).
Alongside the introduction of the Ombudsman in the prisoner complaints mechanism, the existing framework itself is being reviewed. It is proposed (‘Review, Evaluation and Analysis of the Operation of the present Irish Prison Service Prisoner Complaints Procedure’ Recommendation 4) to simplify the existing categories of complaints and introducing a two-category system. Specific causes of concern in the Inspector’s report, referred to above, on the existing system were the delay in dealing with complaints, incomplete complaints, follow-up with the prisoner when there were further questions and that outcomes resulted in recommendations rather than enforced decisions.
A decision of the Court of Appeal suggests that more scrutiny of the internal complaints process will be needed. In the case of McDonnell v Governor of Wheatfield [2015] IECA 216, Birmingham J, Ryan P and Hogan J seemed to suggest that a prisoner’s use of the internal complaints process could be examined when assessing the prisoner’s claim before the court. At para 96 of the judgment, the court discussed the grievance procedure in place at the time of the case, and considered that the prison authorities themselves were better placed in coming to a decision regarding prisoner safety and welfare than the court. This decision then, according to the court, could be the subject of judicial review. While the position that a prisoner would be required to go through the internal complaints procedure before taking a case has never formerly been established, if this were to become court practice in considering cases it would be essential to have a fully functioning complaint system. It highlights the deference the Court accords to the prison authorities in taking care of prisoners. Important to note at this point is that the Ombudsmen, in general, will not examine a complaint which is also before the courts (s.5 The Ombudsman Act 1980). This means prisoners must therefore apply to the Ombudsman before seeking access to the courts or bypass this mechanism.
As outlined above, introducing the Ombudsman into the prisoner complaint mechanism can provide the vital independent mechanism needed in assessing prisoner complaints. However, this process needs to be conducted in line with an examination of the complaint process itself to ensure that these mechanisms can work together to effectively protect the rights of prisoners.
PRILA 