If only our prisons really were like hotels: How ‘Crown immunity’ is hobbling efforts to improve fire safety in the HM Prison Service

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Editor, Prisons.ORG.UK

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Mark Leech is editor of the Prisons Handbook, the definitive guide to Prisons in England and Wales for well over 20 years. It has always won outstanding reviews for its scale, clarity and dependability. The 2017 edition, with with a foreword by the Secretary of State for Justice, is the ‘bible’ for anyone with a personal, professional or academic interest in prisons.
September 6, 2017

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In June 2014 Peter Kimberley, the owner of the New Kimberley Hotel in Blackpool, was jailed for 18 months and ordered to pay £5,243 in costs after being found guilty of 15 breaches of fire safety regulations.

His 90 room hotel, when inspected by Lancashire Fire and Rescue Service, was found to have fire exits blocked with combustible material, fire doors were locked shut, and there was insufficient water available to fight fires.

The New Kimberley Hotel, described in court as ‘a death trap’, was shut down.

But Mr Kimberley wasn’t a bad chap – just an unlucky one in his choice of career.

If instead of being a hotelier Mr Kimberley had been the Governor of a prison where exactly the same, and worse, fire safety failures had been discovered, he would not have even been arrested.

Certainly he could never have been charged, tried, convicted and sent to his own jail – because every prison in England and Wales is immune from prosecution when it comes to fire safety.

All prisons are Crown property, and as all criminal charges in England and Wales are brought on behalf of the Crown, the Crown cannot prosecute itself.

All that the relevant authorities can do is issue Non-Compliance notices and Crown Enforcement Notices.

But they cannot prosecute them.

‘Crown immunity’ is a nifty bit of legal footwork that allows the Crown to commit exactly the same type of offences with impunity, that see others like Mr Kimberley packed off to prison.

If only our prisons really were the ‘hotels’ many ill-informed people wrongly believe them to be.

How did this start?

I have been the editor of The Prisons Handbook for England and Wales for over 20 years and yet the issue of fire safety in our prisons had never really crossed my mind until one awful day six weeks ago.

Largely I think it was because fire safety is not mentioned in any inspection report from HM Inspectorate of Prisons (HMIP) – despite the fact that one of its four ‘Healthy Prisons’ tests specifically refers to ‘Safety’ – indeed the new ‘Expectations’ document that comes out next month, on which all prison inspections are based, doesn’t even mention the word ‘fire’ once.

There has never been a Parliamentary inquiry into fire safety in prisons I can find, and until 2006, after the Regulatory Reform (Fire Safety) Order 2005 came into force, there were no fire regulations covering prisons at all – none.

And then, on 14 June this year, for me Grenfell Tower changed everything.

The horrific towering inferno that we all watched on our televisions as fire took hold of the cladding and destroyed the building in what seemed like seconds, is a scene I will never forget – it was at that point the prison penny dropped: our prisons have cladding; what if…?

Grenfell prisons

I contacted Peter Clarke, HM Chief Inspector of Prisons, and asked him whether in light of Grenfell HMIP had taken any action to inspect fire safety in our prisons?

The Chief Inspector replied saying simply that fire safety in prisons was not his bag.

Inspecting prisons for fire safety he said was the remit of a little-known independent statutory Inspectorate: the Crown Properties Fire Inspection Group (CPFIG) – a part of the Home Office.

As an independent inspectorate I searched online for CPFIG prison fire inspection reports; there were none.

When I contacted CPFIG a spokesman told me: “due to regulations we work within we are not allowed to publish our reports online.”

I submitted a Freedom of Information request to CPFIG and within 14 days the 19 prison Fire Safety reports on prisons produced by CPFIG in the year to June 2017 all arrived and I began to read.

What I found was deeply troubling.

100% fire-safety failure rate

Of the 19 CPFIG inspections in the year to June 2017, every single one had failed statutory fire safety tests and all were issued with legal notices: the full list is at the bottom of this page.

CPFIG found failures such as:

  • The fire risk assessment had not identified all the measures which are required to achieve an acceptable level of risk for prison staff, prisoners, contractors & visitors.
  • The Personal Emergency Evacuation Plan (PEEPs) did not set out suitable and sufficient individual plans for the evacuation of people with disabilities and had not been reviewed when evacuation needs had changed.
  • Ignition sources were found too close to combustible materials.
  • The ventilation ductwork shared by cells does not provide the necessary protection against the spread of fire and fire gases from cell to cell.
  • The existing smoke control arrangements for enclosed landing areas, corridor approaches are inadequate to prevent smoke spread to other cells in the event of a cell fire.
  • The number of trained prison response staff members available was not always sufficient to implement the cell fire response plan effectively.
  • There were insufficient contingency staff during night state to undertake the evacuation of other cells
  • Corridor approach areas contained an excessive level of combustible material.
  • Emergency doors were secured in a manner which prevents them from being easily and immediately opened by any person who may require to use them in an emergency.
  • The smoke control arrangements did not ensure that the conditions outside the cell door would remain tenable for prison staff to undertake the cell fire response plan.
  • The arrangements did not ensure that lock-back doors would be released in the event of fire.
  • Evacuation routes were not sufficiently protected against the ingress of fire and smoke.

Oh and in case you think these are examples of failures CPFIG found across the prison estate in the last 12 months, let me tell you they’re not. This is just a very limited list of failures (running to 18 pages) that they found in just ONE prison (Bristol) – they found similar or greater failings in every single prison they inspected in the year to June 2017.

Flipping into self-destruct

Unlike Grenfell, where its Management Organisation were said to have treated fire safety concerns with contempt, I have not found any evidence to suggest that prison governors are doing the same.

On the contrary CPFIG told me that that when serious defects in fire safety are pointed out to prisons they always find a positive response and a willingness to correct them – it is the prison finding the resources to do so that is the problem, and a question of how things could ever have been allowed to reach the unlawful fire state they were found to be in, that often goes unanswered.

Our prisons are in crisis, as the Prison Governors Association (PGA) made quite clear in a blistering attack on Government policy in 1st August 2017.  This is all the more important because the PGA, unlike the Prison Officers Association (POA), is not known for its public attacks on government; usually they just get on with the job.

Make no mistake, the PGA and its critical assessment is absolutely spot on, and I have told them so too.

Our prisons are now in real danger of flipping into self-destruct.

We have lost 7000 frontline staff in the last five years, many of them the most experienced of all who left under the Voluntary Early Redundancy Scheme (VERS) and, as a result, we have seen a haemorrhaging of vital custodial skills from our prisons that I suspect will take well over a decade to replace.

True, staff numbers are increasing, but only 75 officers have been added in the last year, and as the PGA make clear they are often the wrong sort of person to do the job – a problem caused by the fact recruitment rests with the Ministry of Justice, while training rests with the Prison Service; that is completely irrational in my view – and that of the PGA.

As staff numbers have fallen, the prison population has increased, and budgets have been savaged. It is in this atmosphere, where Governors becomes locked each day in a desperate scramble to make the staff available ‘pegs’ fit the operational ‘holes’, that fire safety becomes less of a priority than it should be.

Enforcement notices

All the prisons inspected by CPFIG in the year to June 2017 were issued with Non-Compliance Notices, followed by 28 day warning notices, and CPFIG even issued Crown Enforcement Notices so serious were the defects they found in four prisons (FeatherstoneRochesterPentonville and Wealstun which was actually served with three of them).

But what’s the point, given every prison enjoys immunity from prosecution?

Immunity that was not enjoyed, and rightly, by Mr Kimberley, nor by any other commercial buildings, non-domestic and multi-occupancy premises in England and Wales which are subject to inspection and susceptible to prosecution, fines and imprisonment.

The shocking reality is that fire safety in our prisons is just not taken seriously.

Prison service instructions

Section 4.44 of Prison Service Instruction 11/2015 on the subject of fire safety mandates that the Governing Governor “must ensure that prisoners are provided with information on the local arrangements for dealing with fire” and that this should “normally be done during the prisoner induction process.”

However, Prison Service Instruction 07/2017, issued just eight weeks earlier, and which covers the induction process doesn’t mention the word ‘fire’ once; even today it has still not been revised to take account of PSI 11/2015.

‘Inadequate monitoring’

What makes this worse, given that many failings identified by CPFIG in their statutory notices were due to ‘inadequate monitoring’, is that every prison has an Independent Monitoring Board (IMB), a statutory watchdog appointed by the Secretary of State for Justice (SOSJ) whose job it is to monitor what happens in our prisons and report to the SOSJ their concerns.

Did the IMB report to the SOSJ the service by CPFIG of Non-Compliance Notices, 28-day warning letters or Crown Enforcement Notices about fire safety failings in their prisons?

Did they monitor how, and if, the identified fire safety defects set out in the Notice were put right?

When I compared the IMB Annual Reports of those prisons served with CPFIG Non-Compliance notices within the year in which CPFIG notices were issued, only one prison, Pentonville, made mention of it in its Annual Report (page 15) – the others seemingly airbrushed these legal documents out of existence.

Or did they?

Were all IMBs even told at all?

“Not made aware of the report”

At HMP Portland one IMB Member on its Board, who I asked in a public twitter exchange with me on 1st August 2017 if her Board had reported the CPFIG non-compliance notice to the SOSJ said: “It’s an extremely good question, and a good example of us sometimes not knowing what we don’t know. Not made aware of Report…” 

How are IMBs expected to monitor what happens in our prisons if they are given a sanitized version of reality by the prison itself?

Governors must be mandated by Prison Service Instruction to copy all such statutory notices to their IMB on the date on which they are received; come on, its pretty basic stuff.

And what of HM Prisons Inspectorate – why did they not pick up these dangerous fire safety failures when inspecting these prisons?

The answer is sadly a simple one: they never looked – and they should have done.

Had they done so they would not have issued the completely misleading report on HMP Coldingley that they did after their inspection there on 3rd March 2017.

In that report the Chief Inspector of Prisons, Peter Clarke, wrote that when Coldingley was judged against the test for safety: “Outcomes for prisoners were reasonably good against this healthy prison test.” 

But that simply wasn’t true.

Just 26 days after Peter Clarke’s Inspection gave Coldingley a ‘reasonably good’ safety rating, CPFIG came knocking on the prison’s gate – and they could not have disagreed more when it came to fire ‘safety’.

They declared that when it came to fire safety HMP Coldingley was so dangerous they served the prison with a Statutory Non-Compliance Notice, giving them 28 days to correct the fire safety defects or they would issue a Crown Enforcement Notice.

CPFIG Inspection found failings, among other things, that included:

  • The procedure is not always followed for removing cigarette lighters and matches from prisoners in Segregation who appear to be at increased risk of self-harming through fire.
  • Normal and/or emergency lighting doesn’t provide sufficient illumination to implement the Cell Fire Response plan including the removal of a prisoner from the cell.
  • The measures to reduce the spread of fire and smoke were inadequate.
  • There was insufficient evidence available to demonstrate the effectiveness of the smoke control arrangements for E wing after it was confirmed to have extraction only.
  • The generic cell fire response plan was not suitable for the circumstances in which prisoners are not locked in their cells (night san).
  • The training package delivered to staff does not provide sufficient practical instruction on the use of Inundation equipment.
  • An insufficient number of prison staff members working in residential wings were in date with their training in Respiratory Protective Equipment (RPE) wearing.
  • The number of trained prison response staff members available was not always sufficient to implement the cell fire response plan effectively.
  • The fire safety measures were not always being tested and maintained in good condition and effective working order.

How on earth, less than a month earlier, could HMIP describe this as a ‘safe’ prison – a question I have asked the Chief Inspector?

Enough is enough.

Fundamental Inspectorate reform

It is clear to me that the way we inspect and monitor our prisons is in need of fundamental reform.

It currently consists of a series of ad hoc and separate statutory inspectorates, acting alone or scattered across government departments.

The Care Quality Commission (CQC) inspects healthcare in prisons, Ofsted inspects training and skills, CPFIG inspects fire safety, IMBs report to the SoSJ, and HM Prisons Inspectorate itself which reports to parliament.

We need is to bring them altogether, under one roof, and ensure the right hand knows what the left hand is doing.

Currently CPFIG is part of the Home Office, HMIP are part of the Ministry of Justice, as are the IMB, the CQC and Ofsted are stand-alone inspectorates.

As a consequence there is inevitable confusion between them as to what is actually going on.

A joined-up inspectorate

As Basil Fawlty would say “to state the bleedin’ obvious”, what we need is a joined up prisons inspectorate.

We we only need one Prisons Inspectorate with experts across the disciplines.

Grenfell changed everything – and yet in our prisons it changed nothing.

Yesterday, 4th August 2017, there were 86,353 people locked up in our prisons (leaving room for just about 750 more before full operational capacity is reached). On top of that we have (March 2017) 32,561 staff and hundreds of thousands of people who visit each year – the prison workforce statistics for the quarter to June 2017 has been pulled, it is being revised and the new publication date is confirmed for 17th August 2017.

According to a Parliamentary Written Answer in March 2017 there were 2,580 fires in our prisons last year, that’s almost 50 blazes every week. True, many of these are minor – but the fridge-fire in the 4th floor flat that seemingly caused the Grenfell disaster was ‘minor’ when it started, but it still took the lives of around 80 people, devastated the lives of countless others and destroyed the entire building.

So what should we do?

Firstly we must have a Justice Secretary in David Lidington MP who will jump on this and ensure every CPFIG notice is acted on immediately, also that all IMBs are told of these Notices and that his Prisons Minister is copied in to all such reports and advised in writing by the Governing Governor when the defects have been rectified – we have nothing like that at the moment – although I’m delighted to say that Richard Burgon, the Shadow Justice Secretary, has written to the Justice Secretary demand this.

Secondly we must have a joined-up system of Independent Inspectorates – the current system is demonstrably not working. Until we have that in place, HMIP must take with them on inspections CPFIG Inspectors to report on fire safety – and its hardly a novel point.

Lord Ramsbotham, HM Chief Inspector of Prisons between 1995 and 2001, told me that on prison inspections he conducted: “We always took a civil engineer, who looked at fire precautions. He once prevented HMP Canterbury from blowing up, because he found that the boiler had been installed the wrong way round!”

Thirdly, CPFIG must publish all its fire safety reports online – any independent Regulator worthy of the name Independent needs to be seen and heard.

Finally, but of equal  importance, we must ensure that no one is above the law.

The Crown Immunity from Prosecution for breaches of fire safety legislation that currently applies to prison Governors must be removed, responsibility for it then shifted from Governors to HMPPS, and the offences for which the Crown prosecutes, fines and imprisons people like Mr Kimberley, should be made to apply equally to everyone.

Full list of non-compliance notices

HMP Bristol Non-Compliant Notice

HMP Coldingley Non-Compliant 28 day letter

HMP Featherstone Non-Compliant 28 day letter

HMP Featherstone Enforcement Notice

HMP Garth Non-Compliant Audit Response

HMP Gartree Non-Compliant 28 Day Letter

HMP Hewell Non-Compliant Report

HMP Kirkham Non-Compliant Report

HMP Lewes Non-Compliant Notice

HMP Lincoln Non-Compliant 28 DayLetter

HMP Lindholme Non-Compliant Audit Response

HMP Lowdham Grange Non-Compliant Notice

HMP Moorland Non-Compliant Notice

HMP Northumberland Non-Compliant Report

HMP Pentonville Enforcement Notice

HMP Portland Non-Compliant Notice

HMP Risley Non-Compliant Notice

HMP Rochester Enforcement Notice

HMP Wealstun Non-Compliant 28 day letter

HMP Wealstun Enforcement Notice1

HMP Wealstun Enforcement Notice2

HMP Wealstun Enforcement Notice3

HMP Woodhill Non-Compliant NON-28 day Notice

Prison Service Instruction 11/2015 Fire Safety

Prison Service Instruction 07/2015 Induction

FOIA Response From CPFIG

Parliamentary Answer March 2017 on Fires in Prisons

Prison Fire Safety Inspections – Summary (Compiled by Niamh McIntyre)

CPFIG Fire Safety Expectations – Prisons

This article was originally published on Prisons.org.uk

You can follow Mark Leech on @PrisonsorgUK on Twitter.

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John Bone
John Bone
September 7, 2017 11:36 am

The MOJ makes it a contractual condition that new work meets the Building Regulations and its internal security standards.

Adrian Owens
Adrian Owens
September 7, 2017 2:30 pm

What a first class article. Hope it is sent to the Secretary of State and to mainstream media outlets.

John Andrews
John Andrews
September 7, 2017 8:42 pm

Thank you for Setting out such an apallind state od affairs so clearly. Before I retired my work in the RAF involved dealing with posible public health hazards following the crashing and burning of aircraft and I am familiar with with the arguments over Crown Immunity, but to simply say that the Crown cannot prosecute is to ignore that the Crown has a Duty of Care to ensure that it operates within it’s own regulations. We must be clearer in defining “Resonsibility” and the penalties for failing to discharge that responsibility – we should not ignor the Chain of Command… Read more »

Mark Leech
Mark Leech
September 12, 2017 1:38 pm
Reply to  Adrian Owens

Thank you I am pleased that you liked the article

Mark Leech
Mark Leech
September 12, 2017 1:39 pm
Reply to  John Bone

Complying with building regulations is not the real problem it is the standard and frequency of ongoing maintenance that is the issue..

Mark Leech
Mark Leech
September 12, 2017 1:41 pm
Reply to  Adrian Owens

It was indeed sent to David Lidington, it was also copied to all the members of the Parliamentary Justice Select Committee who I am hoping will hold an inquiry into fire safety in prisons now that Parliament has returned from the recess.