Health & Safety News

H&S | 18.04.2012

WHAT WILL IT TAKE BEFORE REAL ACTION IS TAKEN TO PROTECT STAFF?

POA Assistant Secretary, Joe Simpson, highlights the on-going problem of violence in our workplace, the inadequacies of the employer and failure of the CPS to protect our members from violence at work.

How workplace violence is identified

Most people think of violence as a physical assault. However, workplace violence is a much broader problem. It is any act in which a person is abused, threatened, intimidated or assaulted in his or her employment.

The prison service is the forgotten service because we are behind a wall or fence and some members of the public think that we should accept violence as an occupational hazard. That is why the action of our members demonstrating outside Nottingham prison highlighted that the level of violence in their workplace is no longer acceptable.

The Governor’s reaction was to personalise the issue against the branch officials by instigating an investigation into the brave actions of the branch chair who was protecting the health and safety of his members. The unprecedented level of violence in our prisons cannot go on. We must start to protect each other and more to the point, take action where our health and safety is under threat.

You are not punch bags and you do not come to work to be verbally abused, threatened or assaulted and we demand the protection of our employer through their duty under the Health and Safety at Work Act 1974. In particular, they must:

  • Protect the health, safety and welfare of their employees and other people who might be affected by their business.

Employers must do whatever is reasonably practicable to achieve this. This means making sure that workers and others are protected from anything that may cause harm, effectively controlling any risks to injury or health that could arise in the workplace.

Is your employer doing this?

It is the duty of the employer to protect your health and safety by way of assessing the risks to your health and safety, removing (or reducing) the risk of hazards by putting safe systems of work in place. This should be done with the involvement of our health and safety reps who will represent your best interests.

If a prisoner commits an assault whilst in prison, whether it be against a member of staff or a prisoner, they should have a risk assessment completed by a competent person, to ensure that they are no longer a threat/hazard in the workplace. If this means they have to be excluded from certain activities to ensure they are not a threat or hazard then this should be done.

Offences to be reported to police

The CPS has informed the prison governors that the following offences should be referred to the police:

  • Murder and attempted murder
  • Manslaughter
  • Rape and attempted rape
  • Threats to kill where there appears a genuine intent
  • Where there is the use of a weapon causing (or likely to cause) serious injury
  • The occasioning of serious injury by any means
  • The use of serious violence against any person (providing that more than minor injury was the intended or likely outcome of such an assault) the actual extent of the injuries received may not be significant
  • Personal sexual violation other than rape but where the victim is especially vulnerable or there has been violence or a threat of violence
  • Unlawful imprisonment (hostage taking)
  • Possession of unauthorised weapons (firearms, imitation firearms or explosives) and other offensive weapons (knives, home made weapons, workshop instruments if there is evidence to suggest that the weapon was intended for use in the commission of a further serious criminal offence)
  • Arson, unless there was little risk of the fire taking hold (a cell fire may be an attempt to commit self-harm; these cases should not normally be referred)
  • Major disturbances involving a number of prisoners where the Governor has lost (or seems likely to lose) control of all or part of the establishment.

Is your governor doing this?

If your governor is not doing this, then they should be challenged as to what his or her reasons are for not reporting these offences. Our members deserve the full protection of the law and no exceptions should be made; especially when it comes to violence against them. Just because a prisoner is serving a sentence does not preclude them from further prosecution for violence against our members.

CPS advice to prosecutors

Prosecutors are asked to note that prison officers, while acting as such, have all the powers, authority, protection and privileges of a constable by virtue of Section 8 of the Prison Act 1952.

The Code for Crown Prosecutors makes clear that prosecutors must select charges which reflect the seriousness and extent of off ending. All things being equal, where the available evidence affords the prosecutor a choice between Section 39 of the Criminal Justice Act 1988 (common assault) and Section 89 of the Police Act 1996, the latter will normally be the more appropriate charge. Where there is evidence of racial or religious aggravation, offences contrary to the provisions of the Crime and Disorder Act 1998 may be appropriate, and prosecutors should consider the ‘Guidance on Prosecuting Cases of Racist and Religious Crime’.

Prosecutors should first check that the offence falls within the NOMS guidelines issued to prison governors. If it does not, check with the governor via the police to find out the reason for the referral and whether there are any aggravating features.

If a case is referred to the CPS the principles in the Code for Crown Prosecutors must be applied in the normal way. However, in assessing where the public interest lies, prosecutors should bear in mind the impact of the offence on the proper running of the institution and the potential impact of a decision not to prosecute.

Relevant factors

The following factors are likely to be especially relevant in a prison context:

  • The offence was committed against a person susceptible to violent attack in the course of his or her duties, eg a prison officer
  • The victim was vulnerable, or subjected to personal and/or repeated attacks or put in fear of attack
  • Offences which may otherwise be regarded as trivial can assume a greater significance when committed in an institution because of the wider impact on internal discipline.

The Code advises that the balance of the public interest may be against a prosecution if the court is likely to impose a nominal penalty, or the loss or harm can be described as minor and was the result of a single incident particularly if it was caused by a misjudgement.

Concurrent sentences are frequently imposed on serving prisoners who commit offences in prison. This is always the case for life prisoners. A prison sentence is not a small or nominal sentence even when it is imposed concurrently. The likelihood that a concurrent sentence will be imposed is not in itself sufficient to refrain from prosecuting an offence committed by a prisoner in prison.

If the prisoner is not convicted of a criminal or disciplinary offence, his or her conduct cannot be taken into account by the Parole Board. Greater weight may be given by the Parole Board to a conviction than a governor’s punishment.

On the other hand, if a custodial sentence is unlikely to be imposed, the court’s only option is to impose an absolute or conditional discharge. In such cases a prosecution may not be the best way to deal with the case. The governor’s powers may be a more effective way of enforcing the law. In such cases, consult the police, and through them, the prison governor before discontinuing, to enable either to make representations. If the governor indicates that disciplinary proceedings will ensue if the criminal case is discontinued, this may point against prosecution where a small or nominal penalty is likely.

Unprecedented level of assaults

In the last few months we have witnessed an unprecedented level of assaults against our members with an employer who is reluctant to act on our behalf and a CPS more concerned with saving money by announcing that it is not in the public interest.

Colleagues, this attitude to violence in our workplace has to change and the only way to achieve this is by constantly challenging those who make decisions not to prosecute.

REMEMBER:

  • If your Governor does not report an offence to the police as per the list from the CPS, ask for their reasons in writing
  • Inform your local branch official and NEC member in writing
  • Take out a grievance against your Governor.

If the CPS does not taking action you can:

  • Talk to your local CPS who will try and deal with your complaint immediately, or
  • You can complain directly by using the CPS complaints form which can be found at www.cps.gov.uk/contact/feedback_and_complaints/feedback_and_complaints_form/

Remember you are not alone, your Union is here to assist you in any way it can, and I would refer you to the Thompsons article on page 73 of this issue.

Together we can make change.

 

Joe Simpson
Assistant Secretary