January 20, 2009: Inquiry Chair Not “Sufficiently Independent”

The High Court has ruled that a former prison governor imposed by Ministry of Justice as inquiry chair is not "sufficiently independent". The Howard League for Penal Reform has welcomed a judgment by the High Court that the chair of the SP public inquiry, Brian Payling, should step down.

The SP inquiry is investigating the treatment of SP, a young girl whilst in prison service custody between 2003-2005. SP was aged 17-19 in the period under investigation, after being remanded into custody as a child in care aged 16.

SP repeatedly  tried to take her own life and injure herself while in custody but was placed in solitary confinement, prison cells usually used for punishment. The right to life inquiry would be the first time such an inquiry could hear from the person concerned. She has been represented by the Howard League for five years and is expected to give evidence at the inquiry’s public hearings.

The decision to conduct an inquiry into SP’s treatment results from the government’s acceptance of the argument put by the Howard League that the level and seriousness of SP’s life threatening self harm whilst in prison service custody triggered the state’s investigative obligations under Article 2 of the European Convention on Human Rights.

The Howard League for Penal Reform first acted on behalf of SP in 2003. She was then a 17 year old girl with severe mental health problems and a history of neglect and abuse. After two years of pressure and a high court injunction the Howard League’s lawyers succeeded in getting SP moved from prison to a secure psychiatric environment. SP has since responded well to care and treatment and her condition has stabilized.

The original chair of the inquiry was Stephen Shaw, the Prisons and Probation Ombudsman. Mr Shaw resigned as chair of the inquiry in June 2008, citing an “unwarranted and unacceptable” attempt by the Prison Service to fetter his independence.

In October 2009, the Ministry of Justice went ahead without consulting SP or the Howard League and appointed retired Prison Service manager Brian Payling as the new inquiry chair. Mr Payling is a former governor of Glen Parva YOI and a former regional area manager for the West Midlands. The Howard League for Penal Reform has now successfully challenged this appointment in the High Court.

In his judgment, Mr Justice Pitchford ruled that an inquiry chaired by Mr Payling would not be “sufficiently independent”. The judgment goes on to state:

“Mr Payling had, as part of his routine working life as an area manager, been consulted on policy initiatives in the field of “safer custody” and “self-harm”. It follows that Mr Payling had been closely concerned with the very policy areas upon which he was being asked to formulate recommendations as an investigator. The advantage that Mr Payling enjoys of familiarity with and expertise in safer custody issues carries the concomitant disadvantage that he cannot be said to be independent of the policy issues he would be investigating.”

The High Court also found that there was “an objective lack of independence” between Mr Payling and a key witness. In 2007, Mr Payling had been taken out for lunch by Sarah Snell, the governor of New Hall prison at the time of SP’s stay there.

Howard League Director Frances Crook said:

“It beggars belief that after the original chair of the SP inquiry resigned over attempts to undermine his authority and independent status, the Ministry of Justice would blunder into the appointment of Brian Payling without consulting the parties involved."

“Brian Payling is a retired senior Prison Service manager and was asked to conduct an inquiry into Prison Service failings during a period when he was still in post. Policies he would have had a hand in developing are to be investigated as part of the inquiry. Our concerns of independence and impartiality are glaringly obvious."

“The government must act as swiftly as possible to introduce an acceptable chair, preferably a judge or senior lawyer. This inquiry should be put on a statutory footing; be conducted properly, speedily and impartially; and should lead to radical improvements. I have written to Jack Straw seeking an urgent meeting to expedite matters."

“This public inquiry will reveal the miserable and barbaric way that women have been treated in prisons that leads directly to self-injury and suicide. The testimony of SP herself shows she was failed by social services as a child in desperate need of protection and then failed by the Prison Service when her abject misery became life threatening."

“Already this year we have seen the tragic suicide of Alison Colk, a young woman who had just entered Styal prison on a petty 28 day sentence for theft. With levels of distress evidently still so high in women’s jails, the SP inquiry becomes all the more urgent and critical.”

Alison Colk was a 36-year-old woman who took her own life in the First Night Centre of Styal prison on 8 January 2009. She hanged herself in her cell hours into her sentence of just 28 days for theft.