Prisoners of convention

Most referrals to the prisons ombudsman come from a few specialist practitioners.

But no firm should forget the service, writes Stephen Shaw

The relationship between ombudsmen and the courts is sometimes an uneasy one.

In part, this is a matter of competition.

Ombudsmen emphasise the speed, economy and expertise that our form of alternative dispute resolution offers over the law.

In part, it is a matter of culture.

Although many ombudsmen are lawyers by training (I am one who is not), our job may appear unstructured, subjective and not burdened by precedent or principle.

The relationship between ombudsmen and legal practitioners and their clients may be strained.

As the Prisons and Probation Ombudsman, I know of many prisoners who say they prefer to resolve their problems via the law.

The non-adversarial, inquisitorial and restorative approach I favour may hold little attraction for those hoping for sizeable compensation payments or for a court 'victory' over the Prison Service.

That said, something like half the complaints I investigate are referred to me by solicitors.

This suggests we must be doing something right.

All the more so given that many of these referrals are from the small number of firms that specialise in prison law.

It may be assumed that these people know what they are talking about, and believe my office does too.

Referrals from the much larger number of firms that pursue just the occasional prisoner litigation are much rarer.

I doubt that the consequence is a better outcome for their clients, and I wish my office's role were better known.

Last year, I investigated more than 1,100 complaints.

These ranged from apparently minor matters such as lost property (although prisoners' total dependence on the state means that no prison complaint is ever truly trivial) to major issues of human rights such as allegations of physical abuse or racism.

I upheld around one in three.

Unlike some ombudsmen, I am not restricted to looking for maladministration, but may address the merits of decisions and the policies behind them.

However, like all of my calling, I operate at the apex of the complaints system.

Complainants must first have exhausted the internal remedies before meeting my eligibility criteria.

Nonetheless, under the Prison Service's new, accelerated complaints system, prisoners should be able to access my office within a few weeks of their grievances arising.

Since September 2001, I have also been able to accept complaints against the National Probation Service.

Given that for every one person in prison there are three subject to some form of probation supervision - whether as a sentence of the court or on licence - my workload might have quadrupled.

It has not happened.

While prison complaints have continued to grow, I have heard hardly a dicky-bird from those on probation.

What are the reasons? Obviously, being subject to probation supervision is not like being in an institution such as a prison.

People on probation or licence may just have much less to complain about.

But I also think that the Probation Service has yet to develop a healthy approach to complaints, or to grasp that a good complaints system is both a check against abuse and an instrument for management to raise performance.

Those probation investigations I have mounted so far have revealed significant flaws in property-handling, report-writing, and in the quality of internal investigations.

Even those lawyers most sceptical of the value of ombudsmen would agree that these are not minor problems.

And given the size of probation caseloads, I suspect they may be quite common.

Referral to my office should be one of the options lawyers always consider if clients come to them with complaints about either the prison or probation services.

Stephen Shaw is the Prisons and Probation Ombudsman for England and Wales