Consulting Position

Last month the Ministry of Justice launched a consultation on doubling from 12 months to two years the maximum sentence for common assaults on workers in emergency services such as police officers, firefighters and paramedics. Although the maximum was raised from six to 12 months as recently as 2018 in the Assaults on Emergency Workers (Offences) Act, the consultation on increasing it yet further was promised in the 2019 Conservative manifesto.

According to the Sentencing Council (who themselves have recently consulted on guidelines for violent offences), common assault usually involves minor injuries with no lasting impact.  The Crown Prosecution Service (CPS) say that anything more than grazes, scratches, abrasions, minor bruising, swellings, reddening of the skin and superficial cuts should be charged as Assault Occasioning Actual Bodily Harm (ABH) which carries a maximum sentence of 5 years (7 for the racially aggravated version of the offence).  When there is really serious harm, GBH will be the offence- and for both ABH and GBH the fact that the victim is an emergency worker makes the offence more serious for sentencing purposes. 

  

There’s a strong argument that assaults on people who protect society and deliver services on our behalf is a more serious matter than an attack simply on an individual victim and whether the best way to respond to such assaults of whatever kind is through yet harsher punishment is a depressing but not unreasonable question to raise.

What’s less reasonable is for the Ministry of Justice to rely only on the actual or potential victims of the offence to help them answer it. Rather than proceeding with a public consultation, the MoJ has undertaken “targeted engagement” with 70 plus groups representing emergency workers along with the CPS, judiciary, lawyers and the Sentencing Council.  The representative groups include professional associations and trade unions, some familiar -the Police Federation, Prison Officers Association and Royal College of Nurses – some less so – the British Dietetic Association and the British Orthoptic Society.  

There was no consultation document as such but a letter from Justice Secretary Robert Buckland inviting consultees to give their “views as to whether the current maximum penalty provides the courts with sufficient powers to reflect the seriousness of the offending”. Feedback could include “the direct experiences of emergency workers or any qualitative or quantitative data you may hold on the operation of the existing legislation”.

What’s lacking is any consideration of the impact that the change might have on courts and prisons or the possibility that aims of sentencing other than punishment- particularly reparation to victims or the reform of offenders might be worth pursuing more vigorously in these types of case. Nor is the opportunity to comment on the knock on effects that such a big change might have on how courts may deal with ordinary assaults on members of the public.    

It rather looks as if the government has made its mind up what it wants to do and is looking simply for supporting evidence. Home Secretary Priti Patel described the consultation as sending “a clear and simple message to the vile thugs who assault our emergency workers – you will not get away with such appalling behaviour and you will be subject to the force of the law”. 

In fact, as Buckland’s letter explains, since the original legislation came into force in November 2018, of the 9,000 offenders sentenced for assaulting an emergency worker only one in six was given an immediate custodial sentence, the average length of which was 2.6 months. This does not suggest that courts are frustrated by the current 12 month maximum. The government clearly is.

The Sentencing Council expects their forthcoming guideline to increase sentencing levels when it comes into force. Unlike the MoJ, in finalising their guideline they will take account of the views of interested members of the public, professionals in the criminal justice field, academics and people with experience of the criminal justice system- and publish a response following consultation.

Buckland does not intend to publish a government response following his own targeted consultation. It’s probably clear what it will be.

Safety In Custody- A Case Behind the Statistics

Published today is the report of an independent investigation I’ve undertaken for the Ministry of Justice into a very serious assault that took place at HMP Bristol back in 2014.  AD, a Somali Muslim man was subjected to a violent unprovoked attack by white prisoner EF on the exercise yard in the prison’s Brunel Unit – a therapeutic intervention unit for prisoners with mental health problems where both AD and EF were accommodated. 

AD sustained life-threatening injuries which have proved enduring, involving both physical and mental impairment. He requires full-time medical care. Following a criminal investigation EF pleaded guilty to the attempted murder of AD. AD’s family, who participated in the investigation, have been devastated by what happened to their loved one and want to know how such a catastrophe could take place while he was in the care of the state.    

AD had been on remand at Bristol for more than six months. He suffered from a psychotic illness and while located on one of the prison’s main wings had been recommended for a transfer to hospital. He was instead moved to the Brunel Unit, where he resumed taking anti-psychotic medication. His mental health improved such that he was due to return to a main wing.  He was staying in the Unit for a few more days so that extra support could continue to be provided for him during a stressful period when he faced a court appearance and was being assigned a new key health worker. It was during this time that the assault took place.

EF had been in the Brunel Unit for six days having been remanded in custody, charged with murder. Mental health nurses at court recommended EF be placed in the Unit because of potential psychosis.  Once on Brunel, no risk that he might harm other prisoners was identified and his behaviour gave no indication that he might commit a violent assault. In fact, EF was highly delusional, forming a view that AD was the prophet Mohammed and his enemy. The assault was investigated as a hate crime by the police and undoubtedly contains elements of islamophobia, although how much of this was brought about by EF’s mental illness is difficult to say.

The investigation found that most of the decisions reached about the care of AD at HMP Bristol were, in the light of the relevant policies and procedures in force at the time, reasonable ones. But six months on remand was, in my view, too long.

As for EF, there were shortcomings in the way the decision was made to place him in the Brunel Unit and weaknesses in the assessment of the risks he posed while there.  The exercise yard was not properly supervised at the time of the assault – AD and EF were in the yard with a third prisoner but with no staff member present. The one prison officer on duty in the unit that morning was in the process of escorting another prisoner back from the yard to his cell.  The response to the incident was prompt once the alarm was raised by the third prisoner on the yard and by two civilian staff whose offices looked out on it.  

Most of the failings identified in the report were institutional in nature: confusion about the criteria for admission to the Brunel Unit, a lack of clarity about procedures there and a variety of interpretations among prison and healthcare staff about their respective responsibilities.

The shortage of prison staff available to work there on the morning the assault took place is a major concern.  The officer on duty was placed in a very difficult position. He did what he thought was best for the prisoners in his care by enabling exercise to take place. Although leaving the yard unattended for a short period was in line with custom and practice, it was not compliant with policy designed to ensure the safety of prisoners. The investigation found that the staffing complement of five officers for Brunel and the adjacent Segregation Unit was on average available only one day a week in the month leading up to the assault, with only three staff deployed on almost a third of mornings.

During the investigation, a particularly disturbing allegation was made that prison officers had been actively encouraging other inmates to attack Somali prisoners round about the time of the incident. The investigation found no evidence of any collusion between staff and EF in the assault on AD. But despite some commendable efforts by the prison to engage with the Somali community, the report finds that insufficient priority was given to address equality and diversity issues at the time.  As an example, EF told reception staff when he first arrived at the prison that he would only share a cell with someone from his “own ethnicity” and not with “a homosexual”; but the basis of these attitudes were not explored or challenged at all.  They should have been.

A troubling claim was also made by the governor of another prison in the South West who conducted an internal investigation for the Prison Service in the months after the assault. His report surprisingly found that there was no evidence to substantiate that EF chose AD for the assault due to AD’s ethnicity.  The governor told me that he added that statement after being asked by his superior to soften his investigation report and “lessen the impact” on the prison service. The prison service accepted my recommendation that this serious allegation of improper pressure being applied to the governor should be looked at separately.  

The independent report on this by Dale Simon, also published today, found that there was no substance to the governor’s allegation- he had in fact been encouraged to address the issue of racial motivation more fully in his internal investigation rather than play it down.  Ms Simon is concerned however that the internal investigation report was accepted by the Prison Service, “whilst in the full knowledge that the report had failed to explore the fundamental issue of possible racial or religious motivation”.    

It’s pleasing that all bar two of the 31 recommendations made in my investigation have been accepted. These include improvements to the management of the Brunel Unit, installation of CCTV cameras in its exercise yard, and work with Bristol based charity Stand against Racism and Inequality (SARI) to develop an action plan to ensure that equality and diversity issues are effectively led and managed in the prison. 

Whether some good can come out of an incident such as this depends on the wider context. HMP Bristol has been under extreme pressure in recent years with the Chief Inspector of Prisons invoking the Urgent Notification Protocol last summer. It’s one of seven prisons whose performance was rated as of serious concern by HMPPS in the last financial year.  There may be some slight cause for optimism in the 7% fall in serious assaults recorded in prisons last year. But there is a long, long way to go to ensure an acceptable level of safety in custody and to reduce to a minimum the chances of a similar disaster to that which befell AD occurring in the future.