Prisons must improve their handling and retention of video footage relating to Use of Force complaints.

By Akile Clinton (Acting Assistant Ombudsman, Serious Complaints Team)

In the year to date (2018/19), the Prisons and Probation Ombudsman has completed thirty-six investigations into the use of force on prisoners by prison staff, compared to twenty-eight in the whole of 2017/18.   These are still relatively few in number in relation both to the size of the prison population and the number of other complaints we receive that are eligible for investigation. However, they are among the most serious and important complaints that the Ombudsman receives, as they go to the heart of the humanity and legitimacy of the prison system.

I want to look first at what a typical investigation involves, and then a particular case study which illustrates a significant and recurring failing in prisons’ practice: the lack of consistent and comprehensive retention of all types of video and audio footage relating to the incidents in question.

Investigating Use of Force complaints

When investigating Use of Force (UoF) complaints, the Ombudsman’s investigators must answer three main questions:

1. Did the use of force constitute an assault?
2. Was the decision to use force justifiable?
3. Was the level of force implemented proportionate to the circumstances?

These investigations are complex and often require our investigators to assess large amounts of evidence and to conduct interviews with the complainant and members of staff involved.  It is common to find, in an allegation of this nature, that, on the basis of the written evidence alone (generally consisting of complaint forms, officer statements and medical records), there is no way of deciphering what exactly happened.  Inevitably, this often becomes a case of ‘he said, she said’. For this reason, we rely heavily on objective evidence in the form of CCTV, body worn or handheld video camera footage.  The footage enables us to analyse a clearer view of the incident and, with the roll out of the latest body worn video cameras, now with audio.  Audio lets us hear the dialogue between an officer and prisoner before the decision to use force is made as well as anything said during the incident.

A typical Use of Force case study

In a recent case investigated by the Ombudsman in 2018, Mr A had submitted a complaint that he was assaulted in his prison cell by staff during a Planned Removal.  Mr A said that he had been punched several times in the head, resulting in injuries.  The Ombudsman was provided with CCTV footage, captured from the end of the wing at which the incident had occurred.  Crucially, however, this did not show the events that took place inside the cell, which is where Mr A alleged the assault took place.  Having studied the footage, the investigator could not discern what had happened inside the cell but he did note that there was a supervising officer recording the events on a handheld camera (as should be the case with all planned removals).  He therefore requested this footage from the prison but was told that the recording no longer existed.  This meant that the only video footage which would have shown not only what happened inside the cell, but also the dialogue between Mr A and staff, was no longer in existence.

As the footage had been deleted, the investigator could only rely on the written evidence and supplementary information gleaned during interviews.  There were some minor injuries, but not severe enough for us to conclude that they were caused directly by an assault.

This was unsatisfactory on a number of levels:

• although there was no guarantee that the handheld footage would have shown anything untoward, it would have enabled us to reach a a firmer conclusion on exactly what occurred inside Mr A’s cell.
• The lack of footage meant there was no independent corroboration either of Mr A’s allegations or the recollections of staff.
• If the footage did clearly show that Mr A was not assaulted, this might have rendered interviews unnecessary and led to a much quicker, more efficient investigation.

HMPPS guidance on retention of video footage

In 2016 Michael Spurr, HMPPS (then NOMS) Chief Executive, issued a memo to all prisons specifying that all footage relating to serious incidents (such as use of force or assault) should be retained for a minimum of twelve months. In this case, the prison ignored the memo so we made a recommendation that the retention guidelines be reiterated to staff at the establishment.

This case illustrates the lack of consistency in the retention of any and all forms of video footage in prisons- a major barrier to fair and conclusive investigations by the Ombudsman into UoF incidents. The majority of our investigations into use of force incidents will include recommendations to prisons reminding them of the value of footage retention. The onus should not be on prisoners to ask the prison to retain footage of an incident. Staff should be doing this as a matter of basic procedure following any incident involving the use of force.

In cases where the prison has not complied with the HMPPS CEO directive and footage has been deleted, our investigation will consider the circumstances and this may inform our findings.

The impact of Body Worn Video Cameras (BWVC)

The establishment of procedural norms following the roll-out of BWVC across the prisons estate should see the following:

• a reduction in the overall number of UoF cases brought to the Ombudsman, with prisons in a stronger position adequately to respond to the prisoners’ initial complaints;
• quicker, more efficient investigations by the PPO; and,
• more conclusive outcomes to the Ombudsman’s investigations.

Staff face enormous challenges in keeping order and control in prisons, so use of force must always be an option. However, it is only lawful if it is necessary and proportionate. Consistent and comprehensive retention of video footage is essential, not just to ensure staff are held to account for wrongful actions, but also to provide protection for both staff and prisoners in the event of necessary use of force.