1 Introduction by the Deputy Director General

Order Ref. No. 1300 Page 1

Prison Service Order Investigations

ORDER NUMBER 1300

Date of Update: 25/07/05

Date of Issue 19/06/03 Issue No: 175

19/06/2003 Replaces PSO 1300 issued 19/06/2000

PSI Amendments should be read in conjunction with PSO

25/07/2005 PSI 25-2005 – Inappropriate Materials 26/04/2005 Contact details updated to show move to Park House 04/02/2003 PSI 09/2003 – Abolition of mandatory training

1 INTRODUCTION BY THE DEPUTY DIRECTOR GENERAL

1.1 This Prison Service Order (PSO) is being issued to replace the previous PSO 1300, issued two years ago. The most significant changes concern simple inquiries. These have been re-named ‘simple investigations’ and brought within the scope of this PSO. There is a greater emphasis on simple investigations as a means of investigating less serious incidents and as a fact-finding tool if a formal investigation is un- necessary or the need is uncertain.

1.2 Staff and Trade Unions have been consulted in the development of this PSO and I am grateful for their contribution and assistance.

Issue No. 175 Issue Date 19 June2003 Order Ref. No. 1300 Page 2

2 Performance Standards

2.1 This PSO underpins the Performance Standard on Conduct and Discipline and will support the delivery of the Security Standard and all standards relating to the treatment of staff and prisoners by ensuring more efficient and effective investigations.

3 Output

3.1 This PSO updates and clarifies previous instructions to enable more efficient and effective investigations. It enables managers to deal with incidents at the lowest appropriate level. Through its greater emphasis on simple investigations it will reduce the need for time-consuming formal investigations.

4 Implementation

4.1 This PSO comes into effect on 19June 2003.

5 Impact and Resource Assessment

5.1 Directors, Area Managers, Heads of Group, Heads of Unit and Governing Governors are those likely to act as Commissioning Authorities. They will need to ensure that they are able to allocate sufficient staff to conduct internal investigations. They will also need to support the wider service through release of staff to conduct external investigations whenever possible.

5.2 Commissioning Authorities will also need to consider the allocation of administrative support to enable investigators to meet the standards of investigative practice and reporting.

5.3 The greater use of simple investigations will reduce the resources required.

6 Mandatory Action

6.1 Directors, Area Managers, Heads of Groups, Heads of Units, Governors and any others acting as Commissioning Authorities must register all formal investigations with the Professional Standards Unit’s Investigation Support Section, which replaces ICU.

6.2 Investigators must comply with the relevant mandatory sections of the PSO when carrying out investigations.

7 Audit and Monitoring

7.1 Governing Governors, Controllers, Directors of privately run prisons, Area Managers and Heads of Groups and Units should monitor action in compliance with this PSO as part of routine line management. Oversight of the Service-wide arrangements for dealing with investigations will be provided by a committee chaired by the Director of Personnel. This committee will, among other things, monitor the processes and provide assurance to the Prison Service Management Board that the arrangements are effective.

8. Contact (Contact details updated 26/04/2005)

8.1 Further information is available from:

ISS, Park House, 61 The Park, Hewell Grange, Redditch, B97 6QF.

Tel. Jill Croft Head of ISS 01527 551241 nos: George Dep Head of ISS 01527 551212 Rogers Simon Pinder AO Investigations 01527 551242

Fax no: 01527 551222

NOTE FOR ESTABLISHMENT LIAISON OFFICERS ELOs must record the receipt of the Prison Service Order –INVESTIGATIONS as issue 175 set out below. The PSO must be placed with those sets of orders mandatorily required in Chapter 4 of PSO 0001.

Issue Date Order Title and / or Date entered ELO signature no. no. description in set 175 19 1300 INVESTIGATIONS June 2003

Peter Atherton Deputy Director General

CONTENTS

1. The Framework of Investigations  Introduction  The Purpose of Investigations  The Level of Investigation - Overview  Types of Investigation - Simple Investigation - Formal Investigation - General - Specialist

2. The Investigation Support Section

3. The Investigation Process Manual

3.1 Simple Investigations

3.2 Formal Investigations - General Principles and Commissioning

3.3 Formal Investigations - Conduct of the Investigation

3.4 Formal Investigations - The Report and Follow-up

3.5 Formal Investigations - Specialist Investigations

Annexes

A1 Model terms of reference for an investigation without a staff disciplinary element

A2 Model terms of reference for an investigation with a staff disciplinary element

B Notices of investigation

C Model large scale incident investigation team and roles

D Report headings

E Commissioning Authority’s report checklist

F Undertaking of confidentiality

G Summary of major processes

CHAPTER 1: THE FRAMEWORK OF INVESTIGATIONS

1.1 Introduction

1.1.1 Whenever an incident takes place or an allegation of misconduct is made, the circumstances of the incident or allegation must be assessed by the appropriate manager who will determine whether and how the allegation or incident will be investigated.

1.1.2 Responsibility for investigations normally rests with line management, as does the decision about the level of investigation. The principles of investigation in this order apply to all members of staff. Monitors and Controllers have a statutory duty to investigate allegations against prisoner custody officers acting in pursuance of prisoner escort arrangements or custodial duties1.

1.1.3 A manual detailing the full investigation process can be found in Chapter 3.

1.1.4 All investigations must be conducted according to the principles of natural justice, and also procedural fairness, which include: -

i. to correctly interpret relevant laws, rules and procedures;

ii. to take account of all relevant considerations (and not take account of irrelevant ones);

iii. to follow the correct investigatory procedures, as set out in this PSO (see Chapter 3);

iv. to act impartially;

v. to give all parties the opportunity to present their version of the facts; and

vi. to avoid applying a policy without considering whether the particular circumstances of a case merits an exception being made.

1.1.5 When specialist investigations are commissioned the relevant Order or Instruction must be referred to and any instructions or procedures given priority. These include:

 PSO 8460 Conduct and Discipline  Performance Standard 7: Conduct and Discipline  PSO 1301 Investigating a Death in Custody

1 Criminal Justice Act 1991, ss 81(2) and 85(4)b.

 PSO 8010 Equal Opportunities for Staff  Combating Harassment and Discrimination in the Prison Service  PSO 2800 Race Relations  PSO 7500 Finance (Chapter 25)  Performance Standard 19: Grievance Procedures (Staff)

1.1.6Commissioning Authorities must consider extant orders when setting up an investigation.

1.2 The purpose of investigations

1.2.1 The purpose of any investigation into an incident or allegation is to inquire into what has taken place, to establish the facts, to learn from them and to establish any accountability.

1.2.2 The main issues to be identified in investigations, which should normally be included in terms of reference, are:

i. what happened and why;

ii. identifying weaknesses in procedures or performance, either locally or nationally, so that they can be remedied and action taken to prevent them recurring;

iii. determining whether the response to any incident or event was proportionate and managed effectively and what can be learned from it;

iv. identifying any failures in physical security or equipment in order to enable improvements to be made;

v. identifying any individual or corporate failings or accountability; and

vi. commending points of good practice, good individual performance and positive actions.

The Level of Investigation

1.3 Overview

1.3.1 The level of investigation into an incident, allegation or complaint must be decided by line management and be based on a judgment of its nature, seriousness and how much is known about its circumstances.

1.3.2 Managers regularly deal with minor incidents, allegations and complaints as part of their everyday activities without recourse to an investigation and this should continue. Also there may be no need for an investigation in more serious cases where the facts are clear and unambiguous, e.g. where a member of staff receives a criminal conviction. However, in most cases there will be lessons to be learned from incidents and an investigation would prove useful. In certain circumstances, disciplinary action may be taken prior to a court hearing. Consultations should take place with those leading a criminal investigation prior to any disciplinary action or investigation taking place which might compromise the prosecution of a serious crime.

Types of Investigation

1.5 Simple investigation

1.5.1 Managers are encouraged to make greater use of simple investigations where there is no need for a formal investigation or the need is uncertain. This will reduce the number of lengthy and expensive formal investigations that are currently commissioned unnecessarily.

1.6 Formal investigation

1.6.1 A formal investigation will be necessary if, from the findings of a simple investigation or from the outset, it appears that any of the following apply: -

General

 The incident has major consequences (disorder, damage, injury etc.).  There was serious harm to any person.

Specialist

In addition to the above:  It is likely that misconduct has occurred which may require formal action under PSO 8460 Conduct and Discipline.  Where a formal investigation is made mandatory by another instruction e.g. PSO 1301 Investigating Deaths in Custody.

 Where there is a specialist element to the investigation apart from the two mentioned above for example, financial impropriety/fraud and sexual or racial harassment or discrimination. (see the orders and instructions listed at 1.1.4)

1.6.2 It is for the Commissioning Authority to make a judgment of the seriousness and nature of the incident or allegation in all cases, having examined the information available at the time.

1.6.3 Normally the investigation will be carried out by a local team, except where the Commissioning Authority judges that a greater level of independence is needed. When an incident prompts high levels of public concern or there is potential to cause embarrassment to Ministers or the Service, an investigation might well need to be independent of the establishment or group in which it is conducted. The Commissioning Authority may also need to bring in outside investigators where specialist skills or team members are not available locally.

1.6.4 In exceptional circumstances, such as major and/or simultaneous incidents, an independent external investigation, from outside the Prison Service may be commissioned by Ministers or the Director General. Such investigations are beyond the scope of this Order.

CHAPTER 2: THE INVESTIGATION SUPPORT SECTION

2.1 Introduction

2.1.1 Central co-ordination of formal investigations is managed through the Professional Standards Unit’s Investigation Support Section (ISS), which replaces ICU.

2.1.2 The functions of ISS are:

i. to provide advice on the operation of the procedures described in this PSO; ii. to undertake analysis of findings, recommendations, and the quality of reports; iii. to maintain a database of details of all registered formal investigations; iv. to provide analytical reports as required; v. to maintain a list of trained investigators and advise on their experience and any special skills and knowledge; vi. to identify areas of good practice in investigation procedure and to disseminate these; vii. to collate and store reports and original evidence; and viii. to work with policyholders to utilise the information obtained to add value to their area of responsibility and improve delivery.

2.2 Advisory Role

2.2.1 ISS maintains a database of trained investigators. It can provide advice on setting up an investigation team by identifying those trained and providing contact numbers. Decisions concerning the competence of any individual investigator will rest with the Commissioning Authority.

2.2.2 ISS is also a source of advice on processes in this PSO for Lead Investigators and their teams.

2.2.3 Specialist advice on procedures and legal matters should be sought from ISS in the first instance. ISS will hold relevant contact names and numbers.

2.3 Registration of investigations

2.3.1 Whenever a formal investigation is established, the Investigation Support Section (ISS) must be informed as soon as possible so that the investigation can be registered. The Commissioning Authority must ensure that this happens.

2.3.2 To register an investigation a copy of the terms of reference must be faxed to ISS with a list of members of the investigating team and the roles they are to adopt. The fax number is on page 2 of this order.

2.3.3 ISS will then confirm receipt and provide a unique registration number for the investigation, which must be marked on all physical evidence and other associated papers. This number will be provided within 2 working days.

2.4 Storage of reports and evidence

2.4.1 Final reports and all evidence must be sent to ISS on completion of the investigation, along with a copy of ISS Investigation Summary Form.

2.5 Information and guidance

2.5.1 ISS will provide the following to the Head of Professional Standards Unit for dissemination throughout the Service either on request or as directed by the Oversight Panel:

i. regular and ad-hoc information in respect of numbers, types and locations of investigations and status and outcomes of specific investigations;

ii. guidance and examples of good practice in investigations; and

iii. evidence of good practice or deficiencies in equipment, procedures or operational practice arising from analysis of investigations.

2.6 Management and oversight of ISS

2.6.1 ISS is part of the Professional Standards Unit and will be line managed by the Head of PSU. Its work will be directed by an oversight panel chaired by the Director of Personnel.

CHAPTER 3: THE INVESTIGATION PROCESS MANUAL

3A SIMPLE INVESTIGATIONS

3A.1 Initiating a simple investigation 3A.2 Conduct of the simple investigation 3A.3 Requirement to co-operate 3A.4 Action when a simple investigation is complete 3A.5 Use of evidence in a subsequent formal investigation

3B FORMAL INVESTIGATIONS – GENERAL PRINCIPLES AND COMMISSIONING

3B.1 The Commissioning Authority 3B.2 Authority and terms of reference 3B.3 Resources 3B.4 The competence of investigators 3B.5 Impartiality 3B.6 Rights and responsibilities 3B.7 Police investigations 3B.8 Parallel professional investigations 3B.9 Contracted out custodial functions 3B.10 The role of Trade Unions

3C FORMAL INVESTIGATIONS – CONDUCT OF THE INVESTIGATION

Introduction 3C.1 Stages of an investigation 3C.2 Likely sources of evidence 3C.3 Arranging interviews and statements

Conduct Of Interviews 3C.4 Prior to any formal interview 3C.5 Interviewing vulnerable or distressed members of staff 3C.6 Interviewing a member of staff on sick leave 3C.7 Interpreter services 3C.8 Interviewing young persons and those with mental illness or a learning disability 3C.9 Location 3C.10 Giving notice of the interview 3C.11 Requirement to co-operate 3C.12 Refusal to co-operate and self-incrimination 3C.13 Action when a witness reveals his/her own misconduct 3C.14 Confidentiality 3C.15 Recording an interview 3C.16 Breaks and adjournments

Maintaining the Integrity and Continuity of Evidence 3C.17 General

3C.18 Types of evidence 3C.19 Recording and protecting evidence 3C.20 Documentary evidence 3C.21 Photographic evidence 3C.22 Working papers 3C.23 Security of evidence 3C.24 Scientific support

3D FORMAL INVESTIGATIONS – THE REPORT AND FOLLOW UP

The Report 3D.1 Completion of the report 3D.2 Interim reports 3D.3 Report structure 3D.4 Recommendations 3D.5 Protective marking of the report and investigation documents

Disclosure 3D.6 Overview 3D.7 Disclosure to interested parties 3D.8 The extent of disclosure 3D.9 Prejudice to other processes 3D.10 Respecting confidences 3D.11 Disclosure prior to publication 3D.12 Alerting ministers 3D.13 Applications for access to reports and evidence held by ISS 3D.14 Post report action 3D.15 Storage of reports and evidence

3E FORMAL INVESTIGATIONS – SPECIALIST INVESTIGATIONS

3E.1 Introduction 3E.2 PSO 8460 Conduct and Discipline 3E.3 Deaths in custody 3E.4 Financial impropriety/fraud 3E.5 Racist incidents - Prisoners 3E.6 Sexual or racial harassment, discrimination and bullying - Staff

CHAPTER 3: THE INVESTIGATION PROCESS MANUAL

3A SIMPLE INVESTIGATIONS

3A.1 Initiating a simple investigation

3A.1.1There is no need to formally commission or register a simple investigation with ISS. However, it might be useful to set out basic terms of reference or guidance to make clear what the investigator is expected to do. It is also advisable for a record of simple investigations to be kept locally.

3A.2 Conduct of the simple investigation

3A.2.1In undertaking a simple investigation, the following questions might be considered:

i. What are the main issues that need to be considered and/or what questions need to be answered?

- What took place and why? - Was the matter properly and effectively managed? - Were there any failures in physical security or equipment? - Were there any examples of good practice? - Can this be resolved now? - Are the issues too complex or serious to be dealt with under a simple investigation? - Is there a need to commission a formal investigation?

ii. How will the simple investigation be undertaken? It might be necessary to:

- examine documents; - talk to staff, prisoners and others; - visit the scene of the incident; - get written information from the people involved; - address discrepancies between different versions of events; - consider local and national policies.

3A.2.2 There is no need to use DAPS or NI forms in a simple investigation.

3A.2.3 It is not normal practice for members of staff to be accompanied during interviews as part of a simple investigation; however if requested, it is for the investigator to decide if this is reasonable and appropriate.

3A.2.4 The case must be referred immediately to the line management initiating the simple investigation whenever information suggesting criminal activities or the need for a formal investigation is discovered.

3A.3 Requirement to co-operate

3A.3.1 The requirement for staff to co-operate with a simple investigation is the same as that set out at paragraph 3C.11.1 of this Order for formal investigations.

3A.4 Action when a simple investigation is complete

3A.4.1Where a simple investigation discovers everything the manager needs to know and any misconduct is not so serious as to require disciplinary action, the misconduct should be dealt with by line management. This could be an explanation of the correct procedures or a discussion followed up by a note or letter informing the member of staff what they have done wrong and the expected standards in future. This might be the subject of staff appraisal discussions.

3A.4.2When a simple investigation points to the need for a more substantial management response then the case must be referred to line management, for a decision as to whether a formal investigation is required.

3A.4.3It is advisable to make a written record of any simple investigation and subsequent action taken.

3A.5 Use of evidence in a subsequent formal investigation

3A.5.1Evidence, including statements, obtained for one purpose – a simple investigation - cannot be used for another – a formal investigation - without the knowledge and consent of the interviewee/provider. If consent is not given, then the person who received the evidence in the first instance may be interviewed and required to appear at any subsequent hearing to introduce and present the evidence.

3A.5.2The Commissioning Authority may decide that any subsequent formal investigation may be conducted by the same person as the simple investigation as long as he or she is satisfied that objectivity is not compromised.

3B: FORMAL INVESTIGATIONS - GENERAL PRINCIPLES AND COMMISSIONING

3B.1 The Commissioning Authority

3B.1.1 The person commissioning the investigation is the Commissioning Authority. The responsibilities of the role are listed at Annex H.

3B.1.2 The Commissioning Authority must:-

i. set the terms of reference; ii. appoint the Lead Investigator; iii. ensure that the investigation is properly conducted, thorough and completed; and iv. take receipt of the report on completion.

The Commissioning Authority is therefore accountable for ensuring the competence of the Lead Investigator and for the quality of the report.

3B.1.3 The Commissioning Authority must decide whether the investigation is to be conducted as:

i. A specialist investigation, for example into a death in custody, financial impropriety/fraud, sexual or racial harassment or discrimination, and disciplinary offences by staff or prisoners. (see the orders and instructions listed at 1.1.4)

ii. A general investigation into an incident or other matter, outside the scope of a specialist investigation.

3B.1.4The Commissioning Authority may require interim reports to be provided during the course of the investigation.

3B.1.5 The Commissioning Authority must consider any reasonable complaints about the procedures adopted during an investigation and must respond to them. An investigation need not be delayed by this unless the Commissioning Authority decides it should be.

3B.1.6The Commissioning Authority may commission further investigatory work on the same or related matters whenever new evidence comes to light.

3B.2 Authority and terms of reference

3B.2.1 Terms of reference must specify:

i. who is directed to investigate the incident;

ii. the authority of the investigators;

iii. whether the investigation is to be specialist or general;

iv. the objectives of the investigation;

v. the timetable for the investigation, including any interim report;

vi. any subsequent amendments to the original terms of reference made necessary by the discovery of new information; and

vii. which Prison Service Orders and other official documents provide instructions and guidance on the conduct of the investigation.

3B.2.2 Model terms of reference are provided at Annexes A1 and A2.

3B.2.3 The Commissioning Authority may extend the terms of reference during the course of the investigation so that additional matters may be investigated.

3B.2.4 Terms of reference can be published to staff, Trade Unions, Boards of Visitors and other interested parties if there are no issues of security or action under PSO 8460 Conduct and Discipline. Publication or any other disclosure of terms of reference is a matter for the Commissioning Authority to determine.

3B.3 Resources

3B.3.1 The Commissioning Authority must:

i. select and appoint a Lead Investigator, and ensure that an investigation team is convened. In the case of investigations into Prisoner Custody Officers (see paragraphs 3B.9.1 – 3B.9.3), the investigation team must include the Controller, or in cases of escort contracts, the Monitor;

ii. ensure that adequate resources have been allocated for the investigation (these will vary according to the gravity and scale of the incident or the allegation).

3B.3.2Investigating teams will be led by a Lead Investigator (see Annex C) who is accountable to the Commissioning Authority for the conduct of the investigation. The term Lead Investigator is to be used in respect of all investigations in accordance with this PSO. The term Senior Investigating Officer (SIO) is now obsolete.

3B.4 The competence of investigators

3B.4.1 The Commissioning Authority must satisfy him/herself that the Lead Investigator is competent to carry out the role. It is for the Commissioning Authority to decide on the competency criteria they wish to apply. However, the Lead Investigator must have investigative and report writing skills. Completion of the course for investigators will provide evidence of competency. Evidence of competency will also be provided by the relevant experience of the investigator.

3B.4.2When selecting investigators, consideration must be given to the type of incident. Where possible, an investigator with specific skills or knowledge of the subject under investigation should be appointed to the team. Advice on the appointment of specialist investigators should be sought from the appropriate Prison Service Head of Profession. Names of specialist investigators can be obtained from the Investigation Support Section. (See paragraph 2.2.1)

3B.4.3 The Commissioning Authority may appoint specialist advisers to the investigation team for particular purposes.

3B.4.4 Investigators must have no significant conflicts of interest with the matter or persons under investigation. Should such conflicts arise within the course of an investigation the matter must be immediately referred to the Commissioning Authority.

3B.5 Impartiality

3B.5.1 The investigation team must act impartially and independently of undue influence from others.

3B.6 Rights and responsibilities

3B.6.1 Investigators must take full account of the rights of all persons subject to, or giving evidence in respect of, the investigation. The guiding principle is that investigators must act reasonably. See paragraph 3C.4.1 onwards for guidance on the conduct of interviews.

3B.6.2 Staff are required to co-operate with investigations. This includes those not directly employed by the Prison Service, and also those who are working within an establishment or headquarters group, on a contract or even on a temporary basis, such as a locum doctor. Failure by staff not directly employed by the Prison Service to co-operate may lead to the termination of the contract between the contractor and the Prison Service. This must be considered by managers on a case by case basis. A person may only refuse to answer a question or produce a document if to do so would tend to expose him/her to proceedings for a criminal offence or penalty.

3B.7 Police investigations

3B.7.1If, at any stage in an investigation, it is alleged or suspected that a serious criminal offence may have been committed, the Lead Investigator must liaise with the Commissioning Authority to determine whether the police should be consulted.

3B.7.2If, as a result of this consultation, the police inquire into a serious crime, their inquiry will have primacy so that the internal investigation does not prejudice that inquiry or the fair conduct of any subsequent prosecution.

3B.7.3The Prison Service investigation must continue unless the police consider its continuation likely to compromise an investigation of serious crime and request its suspension. Each case should be considered on its merits, normally after consultation with the officer in charge of the police investigation and the Police Advisor’s Group. The decision about the continuation or suspension of the Prison Service investigation will be taken by the Commissioning Authority.

3B.7.4 The Lead Investigator must liaise with the police or other prosecuting authority, not only to ensure that as far as possible any criminal investigation or prosecution is not prejudiced but also to ensure, where practicable, that the Prison Service investigation can proceed to a conclusion.

3B.7.5If at the conclusion of the police investigation no action is taken, contact should be made with the officer in charge of the case to discuss the sharing of information that may be useful to the Prison Service investigation.

3B.8 Parallel professional investigations

3B.8.1Professional bodies (for example the General Medical Council for doctors, the UKCC for nurses or the British Psychological Society for psychologists) expect employers to conduct their own preliminary inquiry before cases are referred to them.

3B.8.2Within the Prison Service, all decisions to refer allegations of misconduct to professional bodies, in the light of findings or emerging findings from internal investigations, must be taken by the Commissioning Authority in conjunction with the appropriate Prison Service Head of Profession.

3B.9 Contracted out custodial functions

3B.9.1In exercising their statutory duty to investigate allegations against Prisoner Custody Officers, Monitors and Controllers should be aware that the Contractor may carry out a parallel investigation.

3B.9.2The Contractor is under a statutory duty to assist the Controller in his or her investigation2 and this includes the disclosure of statements made in the course of the Contractor’s investigation. No equivalent statutory duty exists in respect of the providers of escort services, though good practice suggests that there should be such disclosure.

3B.9.3A Monitor or Controller is not required to disclose statements made in the course of their investigations to the Contractor, though the final report should normally be disclosed to the Director of the prison or an appropriate manager of the Escort Services provider.

3B.10 The role of Trade Unions

3B.10.1 Within an investigation, Trade Unions have a number of specific roles:

i. to represent and support their members both generally and individually;

ii. to provide appropriate advice, including legal advice, to their members about the process of the investigation; and

iii. to provide care to their members.

3B.10.2 Reasonable facility time should be provided to enable Trade Union officials to carry out their proper duties in respect of investigations.

3B.10.3 The Lead Investigator should meet officials of the relevant Trade Unions and, where appropriate, invite them to contribute evidence. This will not normally apply in the case of investigations concerning individuals under PSO 8460 Conduct and Discipline.

2 Criminal Justice Act 1991 s85(5)

3C: FORMAL INVESTIGATIONS - CONDUCT OF THE INVESTIGATION

Introduction 3C.1 Stages of an investigation

3C.1.1All investigations differ, but each investigation should have three stages. All three stages must be gone through but not all component parts will be necessary in every case.

3C.1.2Stage one - setting up the investigation:

i. obtain terms of reference and register the investigation with ISS; ii. set up the team and assess the resources required; iii. where appropriate, ensure a local liaison officer is available; iv. establish requirements in advance, e.g. rooms, documentation, notices to staff and prisoners etc.; v. brief team; vi. where appropriate meet the Governor or Head of Group, Trade Unions and the Chairperson of the Board of Visitors.

3C.1.3Stage two - collecting evidence:

i. visit the location(s) of the incident(s); ii. review documentation; iii. establish chronology of events; iv. identify interviewees; v. arrange interviews; vi. flag emerging issues; vii. conduct interviews.

3C.1.4Stage three – conclusions:

i. analyse information; ii. form and test hypotheses; iii. formulate conclusions; iv. write final report (see Annexes D and E for guidance); v. submit final report to Commissioning Authority.

3C.1.5In the course of an investigation it may also be necessary to produce an interim report (see Annexes D and E for guidance), and meet interested parties. It will be important to brief the Commissioning Authority about emerging issues.

3C.2 Likely sources of evidence

3C.2.1The following are likely sources of evidence:

i. the complaint or allegation;

ii. the establishment report about the incident to the National Operations Unit; iii. immediate post incident reports including those submitted by members of staff on duty, prisoners or visitors in the vicinity; iv. documents that establish the whereabouts of possible witnesses, such as the gate book, staff duty rosters, cell locations etc.; iv. other documents such as Security Information Reports (SIRs), the Governor’s Journal, records of searches etc.

3C.3 Arranging interviews and statements

3C.3.1In addition to identifiable key witnesses there should be a general invitation from the investigating team to any staff who feel they have something to contribute. A similar approach may be helpful with prisoners. This may be undertaken individually, for instance by giving each person a notice in writing enclosing a form for response, or generally, through a notice or Governor’s Order. This will not ordinarily apply in the case of investigations concerning individuals under PSO 8460 Conduct and Discipline.

3C.3.2Where appropriate, all, or a selected group of staff may be asked to answer a set of written questions about the matter under investigation. Similar arrangements may be made for prisoners and visitors.

3C.3.3It is likely that a few key people will emerge who will require more in depth examination about their evidence. It is for the Lead Investigator to decide how best to proceed and whether it is appropriate to invite those people to provide a written statement, to answer questions in writing, or to interview them.

3C.3.4When a complaint or allegation is made by a prisoner who is then dis- charged, reasonable efforts must be made to contact him/her at his/her home address to arrange an interview. If the ex-prisoner does not wish to co-operate or fails to respond within 30 days the investigation may be terminated if other evidence appears insufficient to support the allegation or complaint. This information must be forwarded in writing to ISS.

Conduct Of Interviews

3C.4 Prior to any formal interview

3C.4.1Detailed preparations must be made by the Investigators before the interview commences to ensure that they are conversant with details of the case, any prescribed systems or procedures, to plan the key points to be raised and the questions to be asked.

3C.4.2Interviewees must be given reasonable advance notice (see 3C.10.1 below).

3C.4.3Where the interviewee does not speak English or has a disability which affects communication (e.g. visual or hearing impairment) special arrangements must be made. This may include interpreters, signers or the provision of Braille, taped or large print information. Consideration must also be given to the location of interviews for people with impaired mobility (ground floor access, disabled toilet facilities etc.).

3C.5 Interviewing vulnerable or distressed members of staff

3C.5.1The investigator must take account of the physical or emotional condition of staff when scheduling and conducting interviews. The advice of Staff Care and Welfare Service and/or the local care team should be sought in cases of doubt (See PSO 8150).

3C.6 Interviewing a member of staff on sick leave

3C.6.1The fact that a member of staff is on sick leave when due to be interviewed should not automatically cause a delay. The investigator must consider the nature of the illness or injury, and decide whether it is reasonable to continue with the interview in the circumstances.

3C.6.2In general, however, when a member of staff has a sick certificate which indicates he/she is unlikely to be able to be interviewed, the interview should be postponed. The investigator should seek to establish whether the nature of the illness prevents the member of staff attending and for how long the illness is likely to last and may wish to seek the advice of BMI.

3C.6.3If the sick absence is likely to be longer than two weeks or that it is not possible to establish the likely length of the absence then the investigator may decide to set a date for the interview. The interviewee must be given the following options: -

 to attend the interview in person even if not fit for full duty; or

 to submit a detailed written reply to the allegation or, if a witness, a written account of the relevant evidence; or

 the interview may be held at a mutually convenient location other than the workplace.

3C.7 Interpreter services

3C.7.1Where the interviewee has difficulty in understanding English, the services of an interpreter must be offered.

3C.8 Interviewing young persons and those with mental illness or a learning disability

3C.8.1Young persons, under 18 years of age, and anyone suffering from a mental illness or a learning disability should not be interviewed unless they are accompanied by a responsible adult (subject to 3C.8.3). This applies equally to staff as it does to any young person in custody. The role of the responsible adult is to: -

i. consider, on the interviewee’s behalf, whether legal advice should be taken and to advise the interviewee more generally;

ii. to observe whether or not the interview is being conducted fairly and properly, and to intervene if it seems necessary to do so;

iii. to facilitate communication between the interviewer and the interviewee; and

iv. to read any record that is made of the interview and to sign it as correct or to indicate any respect in which it is not considered accurate.

Suitable candidates may include: -

i. a parent or guardian;

ii. another adult family member;

iii. an adult friend;

iv. a minister of the interviewee’s religion;

v. a member of a prisoner support group; or

vi. a social worker, probation officer or YOT worker.

3C.8.2The suitability of any person acting as a responsible adult must be assessed not by the Investigator, but by the Governor of the establishment or Head of Group in which the interviewee is held or works. Full account must be taken of the circumstances and the wishes of the interviewee. Where the interviewee asks for his or her parent or other family member to perform this task this should normally be granted. Managers must take into account Child Protection Procedures in determining the suitability of any member of the public to accompany a young person. Annex B of PSO 4950 gives further guidance.

3C.8.3If the interviewee refuses to be accompanied by a responsible adult, the Lead Investigator must decide if it is necessary in the interests of the investigation to proceed on this basis, taking into account the capacity of the individual and the reliability and importance of the evidence gained.

3C.9 Location

3C.9.1Formal interviews should normally be conducted in a room set aside for the purpose and managed in such a manner to prevent interruption.

3C.10 Giving notice of the interview

3C.10.1 Interviewees must be informed of the purpose of the investigation and issued with written advice about the use that may be made of their evidence in any subsequent disciplinary hearing or in criminal proceedings. Notices of Investigation (NI - see Annex B) can be issued in all investigations without a disciplinary element, while DAPS forms (see PSO 8460 Conduct and Discipline) must be issued in disciplinary investigations. Normally, the investigator will give the interviewee reasonable notice of the interview, that is at least two hours.

3C.10.2 Interviewees will be allowed a colleague or Trade Union representative to accompany them at interview if they wish. A member of staff being interviewed as part of a disciplinary investigation, has a statutory right to be accompanied under the terms of the Employment Relations Act, 1999. Non-members of staff are allowed a friend. In all cases the Lead Investigator has discretion to reject a request to be accompanied by a particular person. However, there must be reasonable grounds for rejecting such a request. These might include that the person:

i) is a suspect or a witness in the same or a related investigation;

ii) is unable to attend within a reasonable time, as determined by the Lead Investigator.

3C.10.3 Where a request is refused, and the member of staff has a statutory right to be accompanied, they must be asked to nominate

someone else. When someone is allowed to accompany the interviewee, they too must be given reasonable time to prepare and attend any interview.

3C.11 Requirement to co-operate

3C.11.1 Staff are required to offer all reasonable co-operation to the investigation. Failure to offer reasonable co-operation to the investigation or to act in any way that undermines the investigation’s process or procedures is a breach of the standards of conduct.

3C.12 Refusal to co-operate and self-incrimination

3C.12.1 A member of staff may only refuse to answer a question or produce any document on grounds that if by co-operating he/she might self-incriminate. In those circumstances alone staff have the right to be silent at interview.

3C.12.2 If the interviewee indicates that he or she is unwilling to answer the investigator’s questions the investigator must ask why he/she is unwilling to co-operate. If the investigator is satisfied that the refusal to co-operate is reasonable, the interviewee can be asked to provide answers to written questions or another line of inquiry may be pursued. Where the refusal to co-operate appears unreasonable, the interviewee must be advised that refusal to co-operate constitutes a disciplinary offence and that the investigator will report the matter to the Commissioning Authority. The original investigation must proceed while a new, separate disciplinary investigation for refusal to co- operate may be instigated.

3C.12.3 If the person under investigation has a reasonable fear of self- incrimination, but is nevertheless prepared to co-operate, the investigator can agree to a request for questions to be put, and the response to be made in writing. The investigator is entitled to decide the length of any period of adjournment for this purpose. (Note 3C.16 below)

3C.13 Action when a witness reveals his/her own misconduct

3C.13.1 Information received from a person about their own misconduct might still be relevant to the investigation in progress. The Lead Investigator should refer the matter to the Commissioning Authority to decide whether to amend the terms of reference or to commission another investigation to deal with the misconduct revealed.

3C.14 Confidentiality

3C.14.1 Where an interviewee requests that information given in the course of an interview should be treated as confidential, any agreement to this must be considered on the grounds of reasonableness taking full account of the circumstances of each case. The interviewee must be advised that the confidentiality of any information or its source will be protected so far as is reasonably possibly, but this may not be possible if there is a later countervailing public interest, (e.g. the prevention or prosecution of serious crime) or if disclosure is required by statute or is ordered by a court.

3C.15 Recording an interview

3C.15.1 There is no requirement for a verbatim record of the interview. The Lead Investigator has discretion on how the interview is recorded, either electronically, or as a minimum, by a contemporaneous hand- written note. The following procedures are advised if a tape recorder is used:

3C.15.2 When tape recording interviews, the reason for the interview and the identity of all participants should be clearly stated and recorded for the purposes of voice recognition. One copy of the tape is a master copy to be kept secure, the second is a working copy for the typist to summarise or transcribe. The interviewee may be allowed to listen to the tape, on Prison Service equipment if he/she so wishes. The investigator may provide the interviewee with a copy of the tape on request. Note that only if the interviewee is charged with an offence must the interviewer provide a copy of the tape on request.

3C.15.3 Any interruptions to the interview should be recorded and clearly explained.

3C.15.4 If a hand-written note of an interview has been made it should be photocopied and the original kept securely as part of the working papers, as it may be subject to disclosure at later proceedings.

3C.15.5 The interviewee must be given a written record of the interview, which they must be invited to sign and comment upon; however, this must not delay the process. Verbatim transcripts of interviews need not be produced or supplied.

3C.16 Breaks and adjournments

3C.16.1 Reasonable breaks in interviews must be provided. The investigator decides when and what constitutes a reasonable break but must take into account both the interests of the investigation and the welfare of the interviewee when deciding the timing.

3C.16.2 Interviews may be adjourned at the discretion of the investigator. Adjournment requests by the interviewee may be agreed to when the investigator feels that there is reasonable cause. It is recommended that adjournments last no longer than 24 hours. This does not prevent the completion of one interview and then re-interview at a later date. The investigator may adjourn the interview at any time to seek further guidance. A record of the source and outcome of such advice should be retained with the notes of the investigation.

Maintaining the Integrity and Continuity of Evidence

3C.17 General

3C.17.1 Evidence obtained during an investigation must be preserved for any later tribunal or criminal proceedings in such a way to ensure that its integrity is maintained.

3C.17.2 Detailed guidance on dealing with all types of evidence is set out below. Further advice on the discovery and handling of evidence is contained in the Prison Discipline Manual and in the Security Manual.

3C.18 Types of evidence

3C.18.1 Evidence can vary widely in its origin and form. As a general rule, all items listed in this section should be dealt with in the manner described at paragraphs 3C.19.1 – 3C.19.5.

3C.18.2 Evidence may consist of:

i. notes of interviews and statements; ii. official documents and records; iii. correspondence; iv. photographs; v. video and audio recordings; vi. physical exhibits - weapons etc.

3C.19 Recording and protecting evidence

3C.19.1 A written record of evidence must be maintained for every investigation. This must be used to record:

i. the description of each item of evidence; ii. from whom it was received; iii. the identity of the recipient; iv. the date of receipt; v. the evidence bag reference number.

3C.19.2 In complex investigations the Lead Investigator should consider appointing an evidence collator within the investigation team, who will have responsibility for:

i. maintaining the evidence register; ii. the security of evidential material; iii. the preparation of indexed original documents (including statements).

3C.19.3 It is preferable to place every item of evidence in a sealed evidence bag.

3C.19.4 Particular care must be taken to avoid cross-contamination of physical exhibits which may be subject to forensic examination.

3C.19.5 Wherever possible, copies of original documents should be made for use as working papers. The original documents must not be marked and should be placed in sealed evidence bags.

3C.20 Documentary evidence

3C.20.1 The investigation will need to take account of the reliability of the evidence collected. Original documentation is the most reliable and should be obtained wherever possible. Where only copies are available, evidence must be obtained which confirms the authenticity of the copy. Computer data should be marked with the date and time at which they were produced.

3C.21 Photographic evidence

3C.21.1 Photographs provided as evidence during the investigation must be endorsed on the reverse side by the photographer recording:

i. his or her identity; ii. the date and time taken; iii. the location.

3C.21.2 Where photographs are required purely for internal purposes digital cameras may be sufficient. If criminal conduct is suspected, these must not be used as they may be inadmissible in court.

3C.21.3 Arrangements for the development of negatives should, ideally, be undertaken in conjunction with the local Police, using chain of custody procedures.

3C.22 Working papers

3C.22.1 Working papers should be maintained and kept securely throughout the investigation as they may need to be disclosed during later proceedings.

3C.22.2 Working papers should:

i. provide a complete record of actions and decisions taken; ii. explain why decisions were made during the course of the investigation; and iii. record the dates and times of all interviews, telephone conversations etc.

3C.22.3 Contemporaneous notes must be signed and dated.

3C.23 Security of evidence

3C.23.1 Strict confidentiality must be maintained throughout an investigation and all evidence stored securely both during the investigation and after its conclusion.

3C.23.2 Secure cabinets should ideally be obtained, suitably located, for the preservation of evidence.

3C.23.3 Any IT equipment used during the course of the investigation must be password protected. Home Office Notice 17/2000 gives more detailed advice and contact points.

3C.23.4 Where evidence (including documentary evidence) is handed over to the police a receipt must be obtained. Documentary evidence must be copied and other evidence should, where appropriate, be photographed prior to delivery to the police.

3C.24 Scientific support

3C.24.1 Scientific support may be required to support certain investigations. Advice and information on scientific services is available from the Forensic Science Service. The telephone number of their customer services desk is 0121 607 6948.

3D: FORMAL INVESTIGATIONS - THE REPORT AND FOLLOW-UP

The Report 3D.1 Completion of the report

3D.1.1The investigation report must be dated and completed in accordance with the terms of reference and submitted to the Commissioning Authority. It must not be completed until all relevant matters have been fully investigated or further enquiries are not practicable.

3D.1.2The final investigation report, which is the responsibility of the Lead Investigator, should contain a clear statement of findings and recommendations. It should be produced quickly and to time, but without compromising the integrity of the investigation.

3D.1.3The findings of an investigation should be clearly based on the evidence collected. This does not preclude the investigator from considering conflicting interpretations of evidence and drawing conclusions from them. Nor does it preclude the investigator from expressing an opinion, provided it is clearly identified as such.

3D.1.4The report must represent the findings and conclusions of the Lead Investigator. No one else, including the Commissioning Authority, must amend the report or influence its findings and recommendations.

3D.1.5The Commissioning Authority is responsible for quality assurance. Quality assurance is limited to those items on the checklist at Annex H. If working through the questions on this checklist reveals deficiencies in the report, the Lead Investigator must be asked to remedy them. The Lead Investigator may reject any requested changes that fall outside the scope of the checklist. Advice may be obtained from headquarters groups at any stage in this process. If there is a difference of opinion about requested changes that cannot be resolved between the Commissioning Authority and the Lead Investigator, the matter may be referred to the Commissioning Authority’s manager for resolution.

3D.2 Interim reports

3D.2.1The Commissioning Authority may require interim reports to be provided during the course of the investigation.

3D.3 Report structure

3D.3.1Annex D gives guidance about report structure. These are guidance notes only and need not be followed in full. The content of the report should be decided on a case by case basis. An executive summary must accompany the report setting out the main findings and recommendations.

3D.4 Recommendations

3D.4.1Investigators must make recommendations as required by the terms of reference; these may include recommendations to prevent recurrence of the incident or breach of discipline, to improve the management of incidents or the administration of the establishment or the Prison Service.

3D.4.2Recommendations must be objective and based upon the investigation's findings. They should be categorised into those for the Governor, the Area Manager, and those for wider consideration, for example by the relevant headquarters policy group.

3D.4.3The recommendations of the investigation report should be costed wherever practicable. Recommendations must also be considered in terms of reduction of risk of the incident happening again.

3D.5 Protective marking of the report and investigation documents

3D.5.1All documents relating to an investigation, including draft copies of the report itself must be marked RESTRICTED - INVESTIGATION, or RESTRICTED - STAFF in the case of investigations under PSO 8460 Conduct and Discipline, until the Commissioning Authority is satisfied that the report is complete.

3D.5.2A completed report may retain a RESTRICTED marking in whole or in part if any of the circumstances in 3D.8.1 i-vi apply.

DISCLOSURE

3D.6 Overview

3D.6.1The Prison Service is committed to the principles of open government set out in the Government’s Code of Practice on Access to Government and compliance with the Data Protection Act 1998. Disclosure of the findings of investigation reports and any conclusions will be as open as possible to satisfy legitimate public interest.

3D.6.2 The Commissioning Authority must consider to whom, to what level and how the report may be disclosed. This will be done in consultation as necessary with senior management. The Commissioning Authority must then determine the arrangements for any disclosure, taking account of the circumstances of each case. ISS should be consulted in case of difficulty.

3D.7 Disclosure to interested parties

3D.7.1The first decision is to whom disclosure needs to be made. This should be to the key people needing to be made aware of the contents of the report (either fully or partially). Disclosure of an investigation report is generally limited to those with a significant interest in the case or the investigation. It should be noted that disclosure is not made as a matter of course and the Commissioning Authority may wish to consider whether there are any special sensitivities which would preclude disclosure in any particular investigation.

3D.7.2In disciplinary cases going to hearing full disclosure is the norm. A full copy of the report must be given to the person facing the allegation. Only in exceptional circumstances, for which the Commissioning Authority must have justification, may parts be omitted.

3D.8 The extent of disclosure

3D.8.1When it has been decided to whom the report will be disclosed, the Commissioning Authority must decide whether the report and supporting documents can be disclosed in part or in full. A report must be edited or have sections omitted in the following circumstances: -

i. it contains material that could lead to a compromise in security or the good order and discipline of Prison Service establishments if it were to come into the knowledge of prisoners or the general public;

ii. where disclosure of certain material might have an impact on possible subsequent proceedings, whether criminal, civil or disciplinary;

iii. medical confidence would be breached if matters became public knowledge;

iv. disclosure would prejudice the prevention, investigation or detection of crime or the apprehension or prosecution of offenders (e.g. reveal the use of surveillance equipment of which the public was not aware);

v. disclosure would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;

vi. disclosure would constitute or could facilitate an unwarranted invasion of privacy (e.g. revealing the home address of a notorious prisoner’s relative).

3D.8.2The Commissioning Authority must consider on a case by case basis whether each interested party should receive a copy or if secure facilities where the report may be read are to be provided.

3D.9 Prejudice to other processes

3D.9.1There may be some cases where there is a risk that disclosure of certain material might have an impact on possible subsequent proceedings, whether criminal, civil or disciplinary. This is likely to arise only in exceptional cases. Where appropriate the matter must be discussed with the Police, legal advisers or the conduct and performance team in headquarters.

3D.9.2The withholding of documents, or parts of documents, is likely to be justified only where there is a genuine risk, not simply a remote possibility, that disclosure would have a prejudicial effect on existing or likely proceedings. In that context undertakings of confidentiality may be relevant. In a case where a report recommends referring any matter to the Police, or that disciplinary action should be taken, particular consideration must be given to whether it is appropriate to disclose the conclusions and recommendations.

3D.10 Respecting confidences

3D.10.1 It is for the Commissioning Authority to determine whether information received in confidence should be disclosed.

3D.10.2 Private information about any individual (including private addresses and telephone numbers) should not be disclosed, but in some instances this may be unavoidable, for instance because the matters are at the very heart of the subject under investigation. In such instances the Commissioning Authority shall make arrangements, appropriate to the case, to ensure that the implications can be fully discussed with the individuals concerned.

3D.10.3 If disclosure entails the release of statements made by a contractor’s employee which he or she believed were being made to the Monitor or Controller alone, that person must be informed of the Monitor’s or Controller’s intention and offered an opportunity to comment.

3D.11 Disclosure prior to publication

3D.11.1 Prior disclosure is the disclosure of all or part of the report to the victim or other significant individual as a matter of courtesy before publication. The Commissioning Authority should determine whether prior disclosure should be given. It will also enable them to give an appropriate response at the time of publication itself. See PSO 1301 for specific guidance on disclosure of Death in Custody reports.

3D.11.2 Prior disclosure will be offered in confidence and subject to a written undertaking to respect the confidentiality of the documentation. A suggested wording is provided at Annex F.

3D.11.3 Prior disclosure may be offered by way of an opportunity to read the documents without being given copies. In such instances a room will be provided at Prison Service headquarters or elsewhere within the estate for this to take place under appropriate supervision.

3D.12 Alerting Ministers

3D.12.1 In some high profile or potentially embarrassing cases the Commissioning Authority must also decide whether Ministers should be advised of the findings of formal investigations prior to publication and of the means and extent of the proposed publication arrangements.

3D.13 Applications for access to reports and evidence held by ISS

3D.13.1 The Data Protection Act, 1998 gives individuals a “subject access” right to all personal data held on them. Personal data means anything that relates to a living, identifiable individual. Where access is requested under these provisions, an application should be made to the Information Management Unit (see PSO 9020). Where access is requested for any other reason, the application should be made to ISS. ISS will consult with the Commissioning Authority before deciding on access. A charge will be made to cover the cost of copying and administration.

3D.14 Post report action

3D.14.1 The Commissioning Authority and other report recipients, for example policy groups, must consider the recommendations. If it is decided not to implement a recommendation or to delay implementation, a written record must be made of that decision and attached to the copy of the report held by the Commissioning Authority.

3D.14.2 Implementation of accepted recommendations must be ensured by an appropriate manager who must draw up and monitor the implementation of an action plan. Where matters of policy and procedure are involved the action plan must be copied to the relevant policy lead. In cases where disciplinary action is recommended, it is again for the appropriate manager to initiate this in accordance with PSO 8460 Conduct and Discipline.

3D.15 Storage of reports and evidence

3D.15.1 The Lead Investigator must ensure that the final report, any interim reports and all evidence is sent to ISS on completion of the investigation. This must include the original copies of any statements or interview notes, any physical evidence, photographs, video or sound recording tapes and other records copied as a part of the investigation. A copy of ISS Investigation Summary Form must be completed by the

Lead Investigator and the Commissioning Authority and attached to the report when it is sent to ISS.

3D.15.2 If a disciplinary hearing is due to be held as a result of the investigation then a copy of the report must be sent to ISS upon completion of the investigation. The original report and the evidence should be retained until the hearing has taken place and then sent to ISS.

3D.15.3 Records of disciplinary proceedings, whether the alleged misconduct was proven or unproven, must be sent to ISS for storage with the investigation report. These records will include the DAPS F14 and the transcript of the hearing. Where the allegation was proven the establishment/group must retain a copy of the papers.

3D.15.4 Some physical evidence may need to be destroyed on health and safety or security grounds3. In any case in which disciplinary or legal action is possible or has taken place, ISS must be consulted before any evidence is destroyed. Police Adviser’s Section can advise on the secure disposal of articles such as weapons or illegal substances. If possible, photographs of the evidence showing all relevant details should be taken before destruction.

3D.15.5 All material sent to ISS will be placed in the discrete investigation dossier. When ISS considers that a dossier is complete it will be sent for central storage. The dossier will be retained either at Corby or another Home Office central storage facility for a minimum of 10 years, or 20 years in the case of deaths in custody.

3 For instance, if the evidence is likely to decay if retained, or because it contains material which could be considered injurious to health, or if the evidence includes firearms or other weapons.

3E: FORMAL INVESTIGATIONS - SPECIALIST INVESTIGATIONS

3E.1 Introduction

3E.1.1 Whilst all investigations should follow the basic principles and guidance set out in this Order, some types of incident, allegation or complaint require particular issues to be considered or particular approaches to be followed.

3E.1.2 This chapter only highlights the different types of specialist investigation and refers to the Orders where detailed guidance on conducting those types of investigation can be found.

3E.1.3 Published guidance and procedures for specialist investigations take pre- cedence over the general guidance given in this order.

3E.2 PSO 8460 Conduct and Discipline

3E.2.1 Disciplinary investigations must be carried out in accordance with PSO 8460 Conduct and Discipline.

3E.3 Deaths in custody

3E.3.1The investigation of deaths in custody must be conducted in accordance with Prison Service Order 1301. All deaths in custody must be formally investigated.

3E.4 Financial impropriety/ fraud

3E.4.1 Detailed information can be found within Chapter 25 of the Finance Manual, Prison Service Order 7500. This includes definitions of fraud and reporting mechanisms.

3E.5 Racist incidents - Prisoners

3E.5.1 Policy and advice on the investigation of racist incidents is given in Chapter 6 of Prison Service Order 2800 Race Relations.

3E.6 Sexual or racial harassment, discrimination and bullying - Staff

3E.6.1 Specific guidance is given in Instructions to Governors 41/1996, Notice to Staff 23/1996 and in “Combating Harassment and Discrimination” (Personnel Planning Group, 1996).

ANNEXES

ANNEX A1

ANNEX A1: MODEL TERMS OF REFERENCE FOR AN INVESTIGATION WITHOUT A STAFF DISCIPLINARY ELEMENT

Lead Investigator

Direction You are directed to investigate the circumstances of [description of incident, complaint or allegation, place and time]; and to report. Your investigation must be conducted in accordance with Prison Service Order 1300 – Investigations and [insert other relevant references – see paragraph 1.1.4].

Authority You act with my authority in conducting this investigation.

Objectives Your investigation should find out what took place, its causes, the manner in which it was managed and resolved, and how a similar occurrence may be prevented or avoided in the future.

[Additional terms may be inserted to take account of the circumstances of the case and for specific types of investigation.]

Recommendations Your report will make recommendations to prevent recurrence specifically related to [the establishment or group] or the Service in general and on the better handling of such incidents in future. You should report good practice that becomes apparent.

Resources You should appoint such staff as necessary to ensure the effective conduct and completion of the investigation.

Timetable You are to provide an interim report by [ ] and your final report by [ ] unless these timetables are revised with my agreement.

Signed...... Date...... Commissioning Authority.

ANNEX A2

ANNEX A2: MODEL TERMS OF REFERENCE FOR AN INVESTIGATIONWITH A STAFF DISCIPLINARY ELEMENT.

Lead Investigator

Direction You are directed to investigate the circumstances of [description of incident, complaint or allegation, place and time]; and to report. Your investigation must be conducted in accordance with Prison Service Order 1300 – Investigations and [insert other relevant references – see paragraph 1.1.4].

Authority You act with my authority in conducting this investigation.

Objectives Your investigation should find out what took place, its causes, the manner in which it was managed and resolved, and how a similar occurrence may be prevented or avoided in the future.

[Additional terms may be inserted to take account of the circumstances of the case and for specific types of investigation.]

Recommendations Your report will make recommendations to prevent recurrence specifically related to [the establishment or group] or the Service in general and on the better handling of such incidents in future. You should report good practice that becomes apparent.

Discipline You may identify grounds for instituting disciplinary proceedings against any member of staff. In the case of proceedings to be brought against prisoners or inmates of a young offender institution you should make arrangements for charges to be laid in accordance with the requirements of Prison Rule 53 (1) or Young Offender Institution Rule 51 (1).

Resources You should appoint such staff as necessary to ensure the effective conduct and completion of the investigation.

Timetable You are to provide an interim report by [ ] and your final report by [ ] unless these timetables are revised with my agreement.

Signed...... Date...... Commissioning Authority

Annex B

ANNEX B: NOTICES OF INVESTIGATION

This annex contains notices to be handed to individuals who are asked to provide evidence or other information to a formal non-disciplinary investigation.

Three notices are provided:

1. Notice of Investigation (Staff) (NI-1) 2. Notice of Investigation (Prisoners) (NI-2) 3. Notice of Investigation (Public/Visitors to a Prison Service establishment) (NI-3)

For a disciplinary investigation the appropriate notices can be found in PSO 8460 Conduct and Discipline.

HM PRISON SERVICE (NI -1)

Notice of Investigation (Staff)

To:......

1. I have been appointed by...... to conduct an investigation into:

...... …………………………………

2. My investigation is being carried out in accordance with Prison Service Order 1300, a copy of which will be made available to you on request.

3. The purpose of my investigation is to establish what took place. Any evidence that you give, whether written or oral, will form part of my investigation report, but, as the investigation is not concerned with the collection of evidence for the purpose of disciplinary proceedings, such evidence may not be used in evidence towards a disciplinary charge against you. Should it become apparent to me that evidence may exist that would support disciplinary proceedings I will report the matter to the Commissioning Authority to decide whether a separate investigation should be established.

4. If you are employed by a provider of contracted out services a copy of my report, including evidence given by you, may, in due course, be passed to your employer.

5. In the event of any legal proceedings it is possible that at the court hearing the judge may wish to examine the report, or any evidence collected, or both.

6. You may be accompanied by a Trade Union representative or a work colleague whilst being interviewed, as per the instructions in this PSO.

7. You are required to co-operate with this investigation.

8. Should evidence of the commission of a criminal offence arise during my investigation, I must consider whether or not to recommend that the Police be asked to investigate. Any evidence given to me in the course of my investigation may be passed to the Police for their further inquiry.

Signed...... Lead Investigator

Date...... Time......

Notice of Investigation (Prisoners)

To:......

......

3. The purpose of my investigation is to establish what took place. Any evidence that you give, whether written or oral, will form part of my investigation report, but, as the investigation is not concerned with the collection of evidence for the purpose of disciplinary proceedings, such evidence may not be used in evidence towards a disciplinary charge against you. Should it become apparent to me that evidence may exist that would support disciplinary proceedings I will report the matter to the Commissioning Authority to decide whether a separate investigation should be established.

5. You are required to co-operate with this investigation.

Date...... Time......

Notice of Investigation (Public/Visitors to a prison)

To:......

......

3. The purpose of my investigation is to establish what took place. Any evidence that you give, whether written or oral, will form part of my investigation report. The investigation is not concerned with the collection of evidence for the purpose of disciplinary proceedings against either staff or prisoners and the evidence may not be used for that purpose. Should it become apparent to me that evidence may exist that would support disciplinary proceedings I will report the matter to the Commissioning Authority to decide whether a separate investigation should be established.

5. You may be accompanied by a friend or relative whilst being interviewed.

6. The Prison Service is most grateful to you for your co-operation with this investigation. If necessary, the Prison Service will reimburse any travelling costs you may incur.

Date...... Time......

Annex C

ANNEX C: MODEL LARGE SCALE INCIDENT INVESTIGATION TEAM AND ROLES

C1 Lead Investigator

C1.1 Agree clear terms of reference with the Commissioning Authority.

C1.2 Form the investigation team, including, where necessary, recruiting specialist advice and support following the advice of the relevant Prison Service Head of Profession.

C1.3 Determine a strategy for the investigation and ensure correct procedures are followed.

C1.4 Maintain effective relationships with Governors, relevant managers, Trade Union representatives and Boards of Visitors.

C1.5 Where necessary, ensure close liaison with the local Police and establish and maintain a good working relationship with their Investigators, if necessary setting out respective roles and responsibilities in a protocol.

C1.6 Liaise with the Commissioning Authority. Where necessary recommend:  any immediate action to be taken in respect of staff including temporary transfer to another establishment or suspension from duty ;  the immediate transfer of any prisoner or inmate of a young offender institution.

C1.7 Oversee the conduct of the investigation, review and adjust approach as necessary.

C1.8 Take an active part in the conduct of the investigation and where there are other members of the investigating team, take responsibility for the supervision of their activities.

C1.9 Interview key witnesses.

C1.10 Produce interim reports and forward them to the Commissioning Authority and ISS.

C1.11 Draw conclusions, make recommendations and present the report.

C1.12 The role of the Lead Investigator in investigations into deaths in custody is set out in PSO 1301.

C2 Investigation Co-ordinator

C2.1 Identify a local liaison officer.

C2.2 Programme interviews.

C2.3 Collate and produce necessary documentation.

C2.4 Establish a link with the Prison Service press office.

C2.5 Conduct such interviews as the Lead Investigator requires.

C2.6 Distribution and retrieval of notes of interview.

C3 Investigator

C3.1 Carry out interviews as directed by the Lead Investigator.

C3.2 Focus and frame questions.

C3.3 Investigate relevant procedures, systems and compliance.

C3.4 Report to the Lead Investigator as required.

C4 Investigation Support

C4.1 Provide administrative, clerical and typing support to the team.

C4.2 Maintain a diary of events and meetings, and transcribe note of interviews.

C5 Local Liaison

C5.1 Where the Lead Investigator is an external appointment, the Governor, Director or Escort Manager will make available a member of staff to exercise a liaison function including the following duties.

C5.2 Find suitable accommodation and interview rooms.

C5.3 Locate staff, prisoners and records relevant to the investigation.

C5.4 Obtain equipment and facilities as required.

C5.5 If there is someone within the establishment or group who has attended the Investigator’s course or has experience of investigations it would make sense to appoint them as the local liaison officer. This will greatly assist the activities of the investigating team.

Annex D

ANNEX D: REPORT HEADINGS

The headings below are for guidance only. It is good practice to follow the main headings, but the circumstances of every case are different and the report should be tailored to them. For example, details of an establishment’s type, prisoner population and recent history would be far more relevant to an incident of concerted indiscipline than to one of sexual harassment that occurred in the administration block.

D1 Executive Summary:  Why there was an investigation and who commissioned it.  What took place.  How the investigation was conducted.  The main findings.  The main recommendations.

D2 Terms of reference and composition of team, including names, grades, job titles and normal work locations of team members and any specialist advisers consulted.

D3 Incident or nature of complaint and how it arose.

D4 Background: Relevant matters only should be placed in this section. Information should be used only to add value and context to the matter under investigation.

D5 Investigation outline, for example:  methodology;  where the team was based;  locations examined by investigators;  lines of enquiry pursued and those not pursued (justifying decisions);  Police involvement and liaison;  Trade Unions and Board of Visitors involvement and liaison;  copies of letters or notices to staff, prisoners and advice to interviewees (Notices of Investigation at Annex B);  location(s) of interviews;  list of interviewees;  reasons for interviews and procedures followed;  substantiation for evidence from interviewees;  level of co-operation.

D6 A full description of what took place:  this must be firmly based on the evidence obtained;  inconsistencies between accounts should be brought out;  where appropriate the written description should identify the source material to be held in the annex[es].

D7 Immediate action taken following the incident, for example:

 were contingency plans activated?  were they adequate?  had they been tested? If so, when?  were they known to staff?  is a log of events available and has it been secured?  was any of the incident videoed and has film been secured?

D8 Level of compliance with authorised procedures.  Were policies and procedures followed both prior to and after the incident?  Were outcomes affected by not following authorised procedures?

D9 Findings  simple, succinct and grounded in evidence;  subdivide for simplicity, for example: - structural deficiencies; - procedural deficiencies; - systems failures; - failure of policy; - failure to comply with policy or instruction; - personal shortcomings; - exceptional performance of duties.

D10 Conclusion:  Where there are conflicting points of evidence determine which is to be believed.  Draw together the findings and reach a judgment on what happened and why.

D11 Recommendations:  For the Governor or Head of Group.  For the Area Manager.  For wider consideration.  For commendations (these may include points of good practice that could be used elsewhere in the Service).

D12 Annexes, for example:  copies of all statements or records of interviews;  properly confidential security, personnel or other material not for public disclosure (for example plans of the prison or a key to persons if text anonymised).

D13 Date of completion of the report and date of acceptance by the Commissioning Authority.

D14 Restrictive marking as appropriate.

Annex E

ANNEX E: COMMISSIONING AUTHORITY’S REPORT CHECKLIST

The Commissioning Authority’s responsibility for quality assurance is limited to reviewing the final report against the questions on the following checklist: -

 Is the report set out in accordance with the guidance in Annex D of this PSO or any other relevant orders e.g. PSOs 1301 and 8460 as applicable?  Has the investigation met the objectives set in its terms of reference?  Has the investigation been conducted in accordance with relevant Prison Service Orders?  Have the available documentation and physical evidence been examined?  Have all relevant lines of enquiry been pursued?  Have reasonable efforts been made to interview or obtain statements from all individuals involved in the incident?  Where an investigation has required specialist input, has there been sufficient?  Has the chronology of events been set out as clearly as possible?  Is the account of what happened, its causes and how the incident was resolved supported by the evidence?  Where there is conflicting evidence, have decisions on what evidence is to be believed been taken on reasonable grounds?  Are abbreviations, slang terms and jargon not in common usage defined?  Is any discriminatory language used only for illustrative purposes and quoted directly from evidence?  Are conclusions based on firm evidence?  Has the report failed to draw conclusions about any significant events?  Are recommendations relevant, achievable and likely to resolve the identified problem?  Do the recommendations overlook any problems that need to be resolved?  Are recommendations for disciplinary action supported by sufficient evidence?

Annex F

ANNEX F: UNDERTAKING OF CONFIDENTIALITY

In the matter of [title of investigation]

1. I acknowledge that the documents being made available to me by [name of delivering officer] on behalf of the Prison Service are provided to me in confidence.

2. I acknowledge that the disclosure of the documents to me is solely for the purpose of enabling me to prepare for the publication of the report of the investigation. I undertake not to use the documents for any other purpose and not to disclose the documents, or any information contained in the documents, to any third party [other than my legal representatives] [other than the clients for whom I am acting as legal representative] (delete as appropriate).

Signature

Annex G

ANNEX G: SUMMARY OF MAJOR PROCESSES

INCIDENT OCCURS

Line management decides on level of investigation

Simple Investigation Formal Investigation Commissioned

No need to register with ISS The terms of reference are faxed to ISS and a reference number obtained

Manager conducts Simple Investigation in line with PSO 1300 Investigator conducts Formal Investigation in line with PSO At any time during the 1300 process the simple Manager refers findings to line investigation can be management stopped and a formal investigation commenced Investigator passes interim/final report to Commissioning Authority

Line management decides on next step

Commissioning Authority accepts report and decides on next step No further Management Formal action action to be investigation required taken required

Implementation of the Disciplinary action (if a Informal action (training No further action recommendations for a disciplinary guidance, mediation non-disciplinary minvestigation) etcetc) investigation Final report, evidence Final report and evidence Final report and and post hearing evidence sent to ISS Final report and sent to ISS information sent to ISS evidence sent to ISS

Issue No. 175 Issue Date 19 June2003