Record of the 23rd APCCA
Agenda Item Two
1. INTRODUCTION
The topic of prisoners’ complaints and grievances has only been discussed once at a previous APCCA meeting, in Beijing, China, in 1991. It aroused a great deal of interest at this conference and formal presentations were made by Australia (South Australia), Fiji, Hong Kong (China), Macao (China), Japan, Korea, Philippines, Thailand and Vietnam.
The Conference was honoured by the participation, in this session, of Professor Roger Hood, Visiting Professor at Hong Kong University and a leading world figure in the fields of penology and criminology. Professor Hood CBE QC FBA has recently retired as Professor of Criminology at Oxford University but remains Emeritus Professor of Criminology and Emeritus Fellow of All Souls College, Oxford University. Following the country presentations, Professor Hood presented a review of the topic and, in conjunction with the Rapporteur, led the ensuing conference discussion.
There are many differences across the region in terms of the processes for grievance resolution. The papers were of a high standard and provide much detail. This thematic review draws out the key themes that emerged from the papers and conference discussions. The country papers may be consulted for a comprehensive description of each jurisdiction’s procedures.
2. INDIVIDUAL AND SYSTEMIC COMPLAINTS: PREVENTION IS BETTER THAN CURE
Prisoners may have grievances on a wide range of issues and the primary focus of the papers and presentations was on the formal processes for addressing what may be called ‘individual’ complaints or grievances; in other words, complaints dealing with matters that relate to the prisoner’s own personal circumstances. However, two important points may be made. First, ‘prevention is better than cure’. Consistent with this view, many papers stressed the importance of positive staff/prisoner interaction in the units/wings of a prison. As Mongolia put it, “personal or individual interactivity with each prisoner is the basis to prevent complaints and grievances.” The Singapore delegation went further and commented that it is better to have a “proactive mechanism to find out what’s wrong, not merely to respond to complaints.” To that end, Singapore has introduced a number of initiatives, including an Inmate Suggestion Scheme (rewarding inmates for good suggestions) and upgraded systems for reciprocal feedback between the prisons and prisoners’ families about an inmate’s progress and wellbeing.
Secondly, individual complaints may be reflective of ‘systemic’ issues, either within a particular prison or across the prison system as a whole (for example, prison conditions, health, hygiene or food). It is important to be able to identify such systemic issues and effective management responses to them can lead to a reduction in the number and intensity of individual complaints. Some systemic issues can be identified by keeping effective data and undertaking trends analysis on the nature and number of individual complaints – a point that was stressed in the Canadian report. However, other systemic issues are not likely to be revealed simply by analyzing trends in complaints. For example, a prisoner’s complaint should, in essence, involve a claim of unfair treatment compared with other inmates. Such claims are most unlikely to be upheld if they involve a uniform practice or conditions that apply to all prisoners.
In recognition of this, some jurisdictions (notably Australia and the United Kingdom) have therefore established prison inspectorates to examine systemic issues. These inspectorates generally operate separately from individual grievance procedures. In some jurisdictions, they report to the relevant Department head or to the Minister, but in others they operate quite independently of the corrections department (for example, in Western Australia, by reporting directly to Parliament).
3. GENERAL PRINCIPLES AND RECENT INITIATIVES
All jurisdictions regard prisoner grievance procedures as a vital component in good modern prison management. The papers revealed that, in many jurisdictions, major changes have occurred since 2001, or are pending. They include Hong Kong (China), Australia (Western Australia, Queensland, Tasmania, South Australia and New South Wales), Japan, Korea and New Zealand. China stated that it is gathering information on all complaints and will be analyzing this in order to identify areas for improvement in both legislation and prison administration.
There are a number of related reasons for this vigorous process of reform. First, there are strong ‘prison management’ reasons. Good order in prisons does not simply involve procedures for disciplining prisoners but also includes giving prisoners fair and expeditious opportunities to resolve complaints and grievances. Indeed, it is clear that prisoners are often more aggrieved by an inability to air their concerns effectively than they are by a rejection of a complaint provided that the process has been fair. Put another way, a fair process is often at least as important as the result. Thus, Malaysia wrote that “receiving, evaluating, investigating, recording and taking action on complaints and grievances” is directly linked to the “fundamental responsibility of prison administration in secure custody and control; and both Fiji and Thailand commented that the level of complaints is one indicator or ‘mirror’ of performance. As many of the papers pointed out (including Brunei, China, Macao (China), Japan, Korea, Malaysia, Thailand and Vietnam) poor prisoner grievance procedures can generate a level of frustration, distrust and tension. At worst, these tensions can contribute to mass indiscipline and serious disturbances (see also Agenda Item 4).
Secondly, there is a ‘human rights dimension’. By the very nature of imprisonment, prisoners lose many of the freedoms and privileges enjoyed by other citizens. However, it is increasingly acknowledged that this does not mean that they lose the right to be treated fairly and with due process. Thus, several papers stressed the rights of inmates and Canada linked this directly to its Charter of Rights, stating that the aim of grievance procedures is to “uphold an offender’s fundamental right to be heard, to appeal and to seek redress.”
Some jurisdictions (including Canada, Australia, New Zealand and Korea) gave a third, and related reason; namely, that effective grievance procedures can reduce the prospects of prison administrators facing costly litigation through the courts.
The phrase ‘internal grievance procedures’ refers to processes within a prison or within the prison department itself, up to and including the Chief Executive Officer. The phrase ‘external grievance procedures’ refers to a range of processes that involve outside agencies. They include relevant government ministers, ‘Visiting Justices’, the courts, accountability agencies such as the Ombudsman, and other Commissions or tribunals (such as human rights committees).
The descriptions of grievance procedures in the national papers suggest that internal procedures sometimes operate within a rather different paradigm from external mechanisms. External processes are often based on a fairly formal process of ‘adjudication’ – in other words, with an independent third party sitting in judgment on the complaint. Internal grievance procedures tend to involve less formal forms of conflict resolution, and some jurisdictions (such as Western Australia) have made a policy shift towards various forms of mediation and negotiation.
Overall, there was a clear consensus that, wherever possible, grievances should be resolved internally and at the lowest possible level.
4. TYPES OF COMPLAINT AND COMPLAINANT
In broad terms, the sources of complaint / grievance were common across the region and included issues such as prison conditions and hygiene, health service provision, access to treatment programmes, visits and family welfare issues, food, exercise, and staff/prisoner or prisoner/prisoner interactions.
However, there appear to be some jurisdictional differences in terms of the proportion of complaints that fall within any given category. For example, in Canada, most complaints involve conditions/routine, prisoner interaction, programmes and pay. In Brunei, however, the major areas of complaint appear to be health and food (especially from those with special dietary needs). A number of jurisdictions (including Japan and Korea) commented that the number of complaints has been increasing but part of this is no doubt due to improved complaints procedures. Some also noted the existence of what Korea called ‘habitual petitioners’ and the Northern Territory (Australia) called ‘serial complainants’.
5. THE NEW HUMAN RIGHTS FRAMEWORK
As noted earlier, and in previous APCCA reports, the past decade has seen an increasing regional focus on human rights standards, including those that are contained in instruments such as the United Nations Standard Minimum Rules for the treatment of prisoners. The conclusion in the papers was that the emphasis on human rights has generally been of benefit but that it has also created points of tension. For example, the delegate from Fiji spoke of difficulties that have arisen with respect to the recently established Office of the Director of Human Rights. These include a lack of clear protocols in some areas and a concern that this may undermine the authority of prison management.
The Korean delegation provided a particularly interesting case-study. Traditionally, most prisoner grievances in Korea have been dealt with internally. However, in May 2001, the Human Rights Commission Act was enacted and the Commission commenced operations in November 2001. This has had a major impact on corrections as well as other areas. A new internal process has been developed called the Inmates’ Grievance Resolving Team, and prisoners are entitled to appeal to the Human Rights Commission against decisions of this Team. There have already been many appeals to the Commission, though few have been successful. The Human Rights Commission is said to have proved a ‘trustworthy overseer of correctional institutions’ and to have brought ‘great reformation in corrections.’ However, it was also suggested that the Commission has tended to place more weight on the position of inmates than on the ‘human rights of sound citizens and victims’ and that the balance may need to be redressed.
6. STRUCTURE OF INTERNAL GRIEVANCE PROCEDURES
(a) General
Throughout the region, and consistent with the principles outlined above, the basic objective is to resolve issues at the block / unit / wing management level. This means that complaints are usually made first to the shift officer or the unit/block officer. If not satisfied with the outcome, prisoners can then take the case further up in the hierarchy – usually to the governor/ superintendent/warden of the prison; then to the next level of management; and, finally, to the Chief Executive of the Department.
Several papers also emphasised that it is important to ensure that prisoners have adequate information, in their own language, about their rights and responsibilities with respect to grievance procedures. In many jurisdictions, this information is provided in prisoner handbooks that are given to prisoners on reception. It can also be provided in the form of posters in living units.
(b) Specialist Complaints Investigation Units
The primary focus in Hong Kong (China) is on effective internal review and a strong Complaints Investigation Unit (CIU) lies at the core of their system. The unit is headed by a superintendent and staffed by trained investigation officers. The operations of the CIU are monitored and overseen by the Correctional Services Department Complaints Committee (CSDCC), which is chaired by the Civil Secretary of the Hong Kong Correctional Services Department (a civilian official) and comprises very senior staff. The system was first ISO certified in 2000 and further attained ISO Version 9001:2000 in 2002 with a focus on continuous improvement and customer satisfaction.
(c) Inmate Grievance Committees
Some jurisdictions have established special committees to consider prisoner grievances rather than leaving the matter to individual officers at different levels of prison management. These committees take various forms and have different levels of involvement by prisoners and by people external to the correctional agency. In Korea, the new Inmates’ Grievance Resolving Team mainly comprises senior correctional staff, preferably those with relevant tertiary qualifications but it may also include invited specialists such as doctors and other professionals.
In Australia, the Philippines and a number of other jurisdictions, inmate committees of different sorts have been established (sometimes called ‘peer support groups’). Although peer support groups do not have any formal role in adjudications, they can provide advice to both prisoners and prison management and have proved a useful conduit for bringing systemic issues to the management attention.
The Canadian model gives the greatest weight to prisoner input to the formal adjudication process. Around 10% of prisons have established an Inmate Grievance Committee, which consists of an equal number of staff and prisoners and a non-voting Chair (who may be either a staff member or an inmate). The role of such committees is to consider certain categories of complaint and to offer advice on those complaints to the ‘Institutional Head’ (ie the superintendent).
(d) Professional Standards Units
Another growing phenomenon is the establishment of stronger professional / ethical standards mechanisms and units within correctional departments. Again, these developments take different forms, but they now exist in several jurisdictions, including parts of Australia, Canada, Hong Kong (China), New Zealand and Singapore.
7. APPEALS FROM INTERNAL DECISIONS TO OUTSIDE REVIEW BOARDS
In addition to allowing prisoners to make separate petitions directly to outside agencies, it is possible to develop schemes whereby prisoners can appeal from internal decisions to an independent external review body. This does not appear to be common in the region but Canada provides an example of such a mechanism. It has established ‘Outside Review Boards’, consisting of independent community members, to review decisions of institutional heads.
8. EXTERNAL GRIEVANCE MECHANISMS
Different legal, cultural and historical factors across the region mean that there are considerable variations in the extent to which external accountability agencies (including the courts) are involved in monitoring or regulating prisoner grievance procedures. However, although there is not uniformity across the region, there are many similarities.
(a) Visiting Justices and Official Visitors
A large number of jurisdictions have, by legislation, officially designated ‘Visiting Justices’ and/or ‘official visitors’ for their prisons. In some jurisdictions (including Brunei, Malaysia and Macao (China)), Visiting Justices play a multiple role. They adjudicate in disciplinary proceedings against prisoners but also act as an avenue for prisoners’ complaints and may also be ‘inspectors’ of general prison standards (commonly being required to inspect their allocated prisons on a monthly basis). Although Visiting Justices have an important potential role, concerns have been raised that their various duties are not readily compatible (e.g. hearing disciplinary matters but also being an avenue for complaints); and that the tasks are too onerous for a part-time person.
In some jurisdictions, the role of the Visiting Justice may therefore be complemented by the appointment of ‘official visitors’ who play no role in adjudications. This is the case in most parts of Australia. For example, in New South Wales, official visitors are said to have a ‘problem solving and examining role.’ Official visitors also aim to reflect, where possible, the prisoner population profile; for example, Indigenous people and people from different language groups. India’s prison visitor scheme provides an avenue for prisoners to request assistance on a range of care and welfare matters. The visitors also seek to monitor compliance with prison rules and human rights.
(b) Ombudsman and Related Offices
Several jurisdictions, particularly those which have tended to adopt Western legal structures, have an office called the Ombudsman (also sometimes known as the Parliamentary Commissioner). Fiji, all Australian jurisdictions and New Zealand have established such an Office and prisoners tend to be one of the largest complainant groups. In many jurisdictions, the Ombudsman will not examine the merits of the case but only considers issues questions of ‘maladministration’, especially whether the prisoner’s internal complaint was properly handled. Furthermore, the Ombudsman can generally only make recommendations to the relevant Department and cannot direct changes to a decision or to procedures. Some of the authority of the Office comes from the fact that it also reports directly to Parliament and can bring major deficiencies to public attention in that way. The New Zealand Ombudsman has broader powers and is able to review the appropriateness of decisions as well as procedural issues.
Another model, adopted by Canada, is the appointment of a specialist Correctional Investigator. Prisoners can complain directly to the Correctional Investigator, who is independent of the Correctional Services and reports directly to the Solicitor General (Government Minister Responsible for the Correctional Service of Canada). Unlike the Ombudsman, the Correctional Investigator can consider the merits of a case.
(c) The Courts
Courts across the region have different roles according to the constitutional structure. In countries with a formal Bill of Rights (such as Fiji and Canada), the courts may be able to hear applications directly from prisoners on a range of matters that fall under the broad ‘human rights’ banner. This might include, for example, consideration of whether certain practices constitute ‘cruel or unusual punishment.’ However, in many jurisdictions, courts have a more restrictive role and, like the Ombudsman, are confined to the question of whether proper processes have been followed.
(d) Human Rights and Other External Agencies
Prisoners generally have access to the same avenues for grievances and concerns as other citizens. These include writing to legislative representatives and contacting agencies with responsibility for human rights, anti-discrimination, privacy, health and alleged corruption.
For example, in Australia, prisoners may complain to anti-discrimination boards in every State and Territory. Across the region, prisoners should also have unfettered and confidential access to anti-corruption offices, such as the Independent Commissions against Corruption in Hong Kong (China) and New South Wales (Australia). Another regional trend is the establishment of Human Rights Commissions of various sorts. Canada and New Zealand have, for a number of years, had such a body and, as noted earlier, Korea now has an active Human Rights Commission. In Malaysia, a human rights body called the Suhakam has been appointed within the jurisdiction of Parliament. The Suhakam has investigated a number of complaints by prisoners and has also visited a number of prisons. India has established State and National Human Rights Commissions which investigate prisoners’ complaints and areas of concern such as deaths in custody. Staff in India are also given specific training in human rights.
9. ACCESSIBILITY AND CONFIDENTIALITY
This review has already noted that accessibility and confidentiality are key ingredients of a fair and effective grievance procedure. It should also be borne in mind that prisoners’ complaints may often be of a sensitive nature – either because they involve personal matters (such as health) or because they involve criticism of officers who have daily authority over them. It is therefore important to give adequate attention to questions of accessibility and confidentiality.
In terms of internal complaints (verbal or written), the general principle is that the officer to whom the complaint is made should discuss the matter only through appropriate formal channels and not with other staff.
In terms of external mechanisms, it is becoming common practice across the region to provide prisoners with an easy and confidential way to contact the relevant agency. The mechanisms include the following:
Ø Ready access to complaints forms in living units
Ø Mechanisms for written complaints to be sent in confidence to the relevant external agency. The most common method involves the use of special sealed envelopes that cannot be tampered with and / or locked letter boxes
Ø Subsequent communications between the prisoner and the agency should be privileged and unmonitored
Ø Toll free, unmonitored telephone calls to relevant agencies. (Often these can be pre-programmed into modern prisoner phone systems and should not be counted as part of a prisoner’s normal phone call allowance.
The delegation from New Zealand pointed to the problems that can arise out of the fact that there may be several different avenues through which prisoners can pursue complaints. For example, a prisoner may send to a Human Rights body a complaint that is more properly a matter for internal procedures. Agencies need to develop appropriate protocols and practices in such areas, not only to ensure that prisoners’ complaints reach the appropriate destination but also to ensure efficiency and timeliness in the process.
10. EVALUATION AND TRENDS ANALYSIS
Although all papers stressed that grievance procedures play an important role in reducing the risks of bad behaviour, few formal evaluations appear to have been conducted. In Western Australia, a preliminary evaluation of a new pilot grievance procedure (now adopted in most of the State’s prisons) suggests that it had a beneficial impact in a number of ways, including a reduction in the number of charges for abusive language (and similar offences) and improved prisoner demeanour. Canada strongly values the analysis of prisoner grievance trends as a means of testing the atmosphere in prisons. Macao (China) commented that, although there have been no formal evaluations, inmates appear to be generally satisfied with the procedures that are in place. Japan anticipates that its grievance procedures will be subject to a detailed formal evaluation as part of a review of correctional administration by a group of independent, non-Government experts called the Correctional Administration Renovation Council.
The most comprehensive surveys have been conducted in Hong Kong (China), linked to the ISO accreditation processes. The results of the surveys are impressive – with around a 90% satisfaction rating by both complainants and those against whom complaints had been made. These findings strongly confirm the view that people will respect fair processes even if they do not achieve the result that they wanted.
11. CONCLUSION: SOME HALLMARKS OF GOOD PRACTICE
There was consensus at the Conference that fair and efficient grievance procedures are essential to good prison management; they help to promote a positive prison culture, to enhance discipline and to reduce the risks of serious disorder and promote prisoners’ legitimate rights. With monitoring, they allow the identification of some systemic problems and help reduce the risks of costly litigation.
Although there are significant regional differences, it was possible to identify several principles that would be regarded by APCCA members as core elements of good practice. They include the following:
Ø Resolving grievances at the lowest possible level
Ø Simplicity in grievance procedures
Ø Timeliness in processing and considering complaints
Ø Information packages for prisoners
Ø Accessibility of both internal and external processes
Ø Where appropriate, mediation and negotiation as the focus of internal proceedings
Ø Appropriate levels of confidentiality
Ø Appropriate levels of independence in investigation and decision making
Ø Avoiding negative consequences / repercussions for prisoners who make complaints
Ø Effective and appropriate mechanisms for communicating decisions
Ø Appropriate appeal mechanisms
Ø Timely responses by prison management to identified trends
Across the regions, a complex range of new grievance schemes are being introduced - internal and external, individual and systemic. However, it is important not to lose sight of the basics. First, as Singapore said, a proactive approach to finding out problems is likely to pay dividends rather than relying on simply reacting to complaints. Secondly, governors /superintendents / institutional heads still play a most important role. This is not simply because they play a role in dealing with formal complaints but because they can, to some degree, set the tone of an institution and can thereby demonstrate that the system treats prisoners’ complaints seriously and respectfully. As Singapore pointed out, a superintendent’s daily round is an important safety valve and one hallmark of management responsivity. Ultimately, as Malaysia and Korea pointed out, the most important thing may not be the design of a system but its implementation and the qualities of the people who work in the system.