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The Law and Penology of Prison Discipline

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The Law and Penology of Prison Discipline Durham E-Theses The law and penology of prison discipline Quinn, Peter Michael How to cite: Quinn, Peter Michael (1989) The law and penology of prison discipline, Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/6459/ Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in Durham E-Theses • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full Durham E-Theses policy for further details. Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk THE LAW AND PENOLOGY OF PRISON DISCIPLINE VOLUME ONE (OF TWO VOLUMES) PETER MICHAEL QUINN BACHELOR OF CIVIL LAW UNIVERSITY OF DURHAM DEPARTMENT OF LAW 1989 The copyright of this thesis rests with the author. No quotation from it should be pubh'shed without his prior written consent and information derived from it should be acknowledged. 2 5 JAN 1990 ABSTRACT THE LAW AND PENOLOGY OF PRISON DISCIPLINE ; PETER M. QUINN The study is of the disciplinary systems within the prisons of England and Wales. It concerns the response of the courts to prison matters brought before them and examines the effects upon prison life of an increasing demand for adherence to the rules of natural justice. Statutory authorities for the imposition of punishment within prison are reviewed as is the complex interweaving of statute, statutory instriunent and internal regulations. There is a comprehensive examination of those parliamentary debates, conferences, committees of inquiry, reports and judgments that have influenced change. Particular reference is made to the question of legal or other assistance for an accused prisoner who faces a disciplinary hearing within the prison. The paper contains an account of the subsystems of discipline said to operate within penal establishments whereby the pressures of institutional life may conspire to prevent a prisoner receiving that to which he or she knows he or she is entitled. The paper draws upon the developing case law, the literature in the field and on private sources. The last of these includes the voice of prisoners themselves who are able to say how, if at all, a growing awareness by staff of the requirements of natural justice has affected the regime under which they live. TABLE OF CONTENTS VOLUME ONE Chapter Title Page ONE INTRODUCTION TO THE STUDY 8 TWO THE DISCIPLINED ENVIRONMENT 17 - Introduction including a brief account of the structure of the modern prison system 18 - Statutory and other provisions relating to the administration of prisons and to the establish• ment of internal disciplinary systems 19 a) The Prison Act, 1952, The Prison Rules 196A 19 b) internal regulations and their status 22 c) offences against prison discipline: legal, quasi-legal and penological perspectives; comment upon the "catch-alls" 25 - Access to information: prisoners and their legal advisers 37 - Conclusions A6 THREE THE DEVELOPMENT OF DISCIPLINARY SYSTEMS A8 THREE(1) ROUGH JUSTICE TO NATURAL JUSTICE: PRISONERS' ACCESS TO THE COURT AND CHANGE FOLLOWING JUDICIAL DECISIONS WITH PARTICULAR REFERENCE TO DISCIPLINARY MATTERS A9 - Introduction A9 - Prisoner grievance, administrative responses and contradictions 50 - "Hands off": the courts support the administrators 56 - Towards "hands on": establishing a right of access to a court 62 a) the European dimension 62 b) the domestic dimension: prison discipline and the "discovery" of judicial review .. 69 - "Hands on": the search for natural justice at disciplinary hearings 81 a) the generality of cases 81 3 Chapter Title Page Three(1) (Cont...) b) the drugs cases 9A - Procedural brakes on relief: "hands on" with a finger in the dyke 101 - Some conclusions 109 THREE(2) ASSISTANCE, REPRESENTATION AND A CONCERN FOR PROCEDURE 111 - The case for assistance and representation 111 - Influences leading to change 115 i) The Criminal Justice Bill, 19A8 116 ii) Prison governors' annual conference, 19A8 119 iii) Franklin Committee, 1951 121 iv) Between Franklin and Weiler 126 v) Weiler Report, 1975 131 vi) Alongside Weiler: Jellicoe 135 vii) Post-Weiler: more ruminations 136 Smith, Austin and Ditchfield 136 May Report, 1979 lAO Benson Report, 1979 140 B.I.H.R. Conference, 1980 1A2 Home Affairs Committee, 1980-1 1A3 Prisoners' Rights Bill, 1981 1A5 Mealy, Brady and Departmental thought 1A5 Justice Report .. 1A6 viii) Campbell and Fell, Tarrant and others 1A8 - A note on prison McKenzies 160 - A concern for procedures 161 i) a note on independence 161 ii) the developing procedure 167 Chapter Title Page THREE(3) BOARDS OF VISITORS AND GOVERNORS: THE SAME, BUT DIFFERENT? 17A 189 THREE(A) SUBSYSTEMS OF DISCIPLINE 189 19A - Introduction 19A 195 200 - A disciplinary subsystem within the Rules 202 20A i) administrative segregation 210 21A a) the possibility of misuse 221 221 b) the adequacy of oversight 223 227 c) remedies at law ii) allocation iii) the indeterminate sentence iv) the search - Covert justice as a disciplinary sybsystem i) diversion ii) the power of the pen iii) the blind eye •. - A disciplinary subsystem beyond the reach of the Rules: perks and the absence of perks 229 - Conclusions 232 236 FOUR RESPONSES TO CHANGE AFTER TARRANT - Introduction 237 - Responses within the Prison Department 237 i) the announcement of Prior 237 ii) the Quentin Thomas and other letters 239 iii) the Manual on the Conduct of Adjudications 251 a) the McKenzieman . 252 b) access and facilities for legal advisers or representatives 255 c) the calling of witnesses 258 Chapter Title Page - At "grass roots": staff and prisoner responses 262 - Conclusions 268 FIVE THE PRIOR REPORT 271 FIVE(l) THE EVIDENCE TO PRIOR 272 - Introduction 272 - The evidence to Prior 272 a) the evidence of boards of visitors 273 b) the evidence of special interest groups, organisations, etc. 286 c) the evidence of individuals 301 - Conclusions 311 FIVE(2) THE REPORT OF THE COMMITTEE ON THE PRISON DISCIPLINARY SYSTEM, OCTOBER 1985 313 - Clearing the decks 313 - The recommendations of the Committee 318 - Costings 331 FIVE(3) COMMENT UPON AND RESPONSES TO PRIOR 332 - Introduction 332 - Board of visitors responses to Prior 337 - Government responses to Prior 3A1 a) "conclusions, some of which are provisional" 3A1 b) breathing space 3A5 c) implementation: what a difference a year makes 3A6 SIX CONCLUDING COMMENT 350 VOLUME TWO FOOTNOTES 3 TABLE OF CASES 81 86 TABLE OF STATUTES 88 BIBLIOGRAPHY APPENDICES: 1. The organisation of the Prison Department and of typical institutions 118 H.O.P.D. Circular Instruction 35/1985 and adjudication forms 120 Summary of the recommendations of the inquiries into prison discipline reviewed in the text 136 Application for leave to apply for judicial review: Terence Patrick Ewing, August 1983 159 The methodology of the Departmental Committee on the Prison Disciplinary System (The Prior Committee) 198A 16A Extract from the Manual on the Conduct of Adjudications in Prison Department Establishments, 198A 173 Notice of the revision of the Manual on Adjudications and comment thereupon 233 Comment upon the Green Paper "Private sector involvement in the remand system" 1988 239 9. H.O.P.D. Statement of Purpose, lA November 1988 .. 2A5 10. Draft Revision to Prison Rule A7 and consequent amendments 2A7 11, Thanks 251 DECLARATION This is to certify that none of the material offered has previously been submitted by the writer for a Higher Degree in this, or in any other, university. The copyright of this thesis rests with the author except as stated below. No quotation from it should be published without his prior written consent and information derived from it should be acknowledged. The copyright of extracts from official publi• cations and forms reproduced in the Appendices rests with Home Office. CHAPTER ONE INTRODUCTION Chapter One INTRODUCTION TO THE FIELD OF STUDY In several respects, the prison must be an exhaustive disciplinary apparatus: it must assume responsibility for all aspects of the individual, his physical training, his aptitude to work, his everyday conduct, his moral attitude, his state of mind; the prison, much more than the school, the workshop or the army, which always involved a certain specialization, is "omni-disciplinary°: moreover the prison has neither exterior nor gap, it cannot be interrupted except when its task is totally completed; its action on the individual must be uninterrupted: an unceasing discipline. Lastly, it gives almost total power over the prisoners; it has its internal mechanisms of repression and punishment: a despotic discipline. It carries to their grteatest intensity all the procedures to be found in the other disciplinary mechanisms.(1) Foucault's characterisation of the prison as the all-enveloping, all-pervasive disciplinary machine makes the assumption that it is an instrument of the state operating in a totally autonomous fashion, unconcerned by its relationship to or dependence upon other organs of state. Principally, it ignores the modern prison as a creature of statute, responsible, through ministers, to Parliament and subject to the law. The existence of law cannot, of itself, guarantee that the prison does not come to reflect,.the Foucault model. Regimes in many parts of the world have boasted repressive prison systems wherein torture or even extermination in one form or another have been sanctioned under the law.(2) But that might seem a little remote from the penology of the liberal western state wherein the modern prison is established.
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