Review of the Triennial Review Procedures Relating to the Re-appointment of a Member of the Independent Monitoring Board at HM Prison Norwich John Hutchings Independent Consultant June 2008 l. This report addresses issues arising from the recommendation of the Acting Chair of the Norwich Independent Monitoring Board Mr Gary Scott. that one of its members. Mr Raymond Bewry. should not be re?appointed in the triennial review of membership taking place at the end of 2006. have been asked to undertake this review by the Ministry of Justice to ascertain whether the required processes for the re-appointment of IMB members were satisfactorily followed. and whether any changes in these processes are required. 1 would emphasise that my task has been solely to look at those processes and not to make anyjudgement on the issue of whether or not Mr Bewry should actually have been re-appointed. I was previously one of HM Assistant Chief inspectors of Probation. Since retiring from the Inspectorate in May 2006 have undertaken various investigations and inquiries for the Home Office or Ministry oi?Justice, and for probation areas in England and Wales. The report is based on: Reading of a considerable amount of correspondence and other documentation related to the case supplied by the National Secretariat Interviews at the Secretariat with Mr Norman McLean. Secretariat Head. and with Mr Mike Paice. the Higher Executive Of?cer, responsible for IMB appointments An interview ?with Ms Jackie Erwteman, who inquired further into the case on behalf of the Secretariat A telephone conversation with Mr Scott. Nature of the triennial review 4. Ln members are appointed for a three year period and there is a rolling programme that in any one year about a third of the prisons and immigration detention centre in England and Wales (plus one immigration detention centre in Scotland) are subject to their membership being reviewed and a decision taken by the Secretary of State about whether individual members should be re- appointed. This involves a substantial number of cases having to be considered. perhaps 500~600 people at the end of any one year. In most cases however. this is a fairly straightforward procedure with the general presumption that a member will be re-appointed unless there are strong reasons to the contrary. The Chair of the 1MB completes a report. which is a short form showing that the member has made a suf?cient number of the required visits to the establishment and making any general comments about his or her contribution to the lMB?s work. a member is not recommended for re-appointment, which is only ever a very small minority. the normal practice is for the Chair?s report to be sent by the Secretariat to the person concerned and their comments invited. The Secretariat then has the tinal responsibility for recommending to the Secretary of State whether re?appointment should take place. There is also a provision that a member can be transferred to an at another establishment if for whatever reason it is felt necessary to remove them from the current one. Events related to the inquiry 6. 7. ll. This section details the main happenings in what has been a long and complex series ofevents. It is necessarily selective. On 16?? May 2006 Mr McLean wrote to the Chairs of the 46 where members? terms of appointment would expire on 315? December. The Chair was asked to complete the usual documentation. If a member was not recommended for re-appointment, the letter stated: "Any recommendations by Chairs that individual members should not be re?appointed by il/linisters. must be supported with afall explanation and any available evidence. Members were required to con?rm in writing that their report had been seen and discussed with them. Related guidance to Chairs included: ?ln the interests of openness and fairness, it is important that each member is a?orded the opportunity to see and agree the Chair 's assessment oftheir performance before the assessment report is sabmitteal to the Secretariat. This is especially critical where the Chair 's recommendation is that the member should not be given another appointment. in circumstances where the recommendation does not re?ect the views of the member concerned. orms and recommendations needed to be completed and returned no later than I51 October 2006. The guidance also recognised that Chairs needed assistance in completing reviews, stating: ?The Secretariat will work closely with Chairs and discuss with them. where appropriate, their recommendations and the reasoning/or them. In connection with this, two one day training courses for Chairs for the carrying out of reviews were arranged for June and July 2006. At the time the letter was sent out the Chair of the Norwich was Mr Brian Blake. Mr Blake resigned from this position in August 2006. Mr Scott then taking over as Acting Chair, for the last few months of the life. this including taking responsibility for completing the triennial reviews. . Mr Scott has told me that he did not consider Mr Bewry to be suitable for re- appointment and that he and Mr Blake had previously discussed this. He (Mr Scott) would be out of the country between 10?1 September and 15Eh October and so needed to write all the reviews before his departure to meet the October deadline. He arranged to see Mr Bewry in early September so as to be able to achieve this. However. following consultation with Mr McLean, who advised him that the recommendation was likely to be controversial. he agreed to postpone the meeting and report until after his return. Mr Scott completed his triennial review of Mr Bewry on 25m October 2006. He did not recommend re-appointment stating that although Mr Bewry had valuable knowledge and experience which could bene?t the and the prison, he was not an effective team player and often preferred to act unilaterally and pursue his own agenda. Mr Scott gave a number of examples of Mr Bewry?s behaviour related to this. including his talking to the press without the Chair?s approval and concluded: ?It is my?rm view that Mr Bewtjv ?s credibilitv and relationships with colleagues have deteriorated to such an extent that the Board 's work with the (Liovernor and his .s'tatf'contimtes to be severely undermined. Quite simply he no longer commands the con?dence of the Board. and some other members are considering resigning because of'itNovember 2006 the Secretariat wrote to Mr Bewry mtormmg him that he had not been recommended for re-appointment. A copy of Mr Scott?s assessment was enclosed and his comments were requested as soon as possible. Mr Bewry sent a reply (14 pages with 58 pages of?supporting documents) to this on 6?h November. disputing Mr Scott?s assessment and the accuracy of his information. He was also critical of the delay in the report not being completed until 25?h October. He had been expecting it to take place at the start of September, the time when appraisals were being completed on his colleague members who were being recommended for re?appointment. . Mr McLean replied to Mr Bewry on 15lb December stating that the Secretariat would need to examine the points he had made, but because of their length this would take some time. It would not be possible to conclude this work before the end of the year and he regretted that in these circumstances Mr Bewry?s membership of the Norwich 1MB would lapse as from December. Mr McLean wrote further on 3rd January 2007 stating that because of the length of the response and the fact that Mr Bewry had named a number of other individuals, he had appointed Ms Erwteman. the Secretariat?s independent consultant to look into the case, where appropriate meet the individuals concerned, and then meet with Mr Bewry to discuss her ?ndings. He added though that he was not sure how long this process would take, especially as Ms Erwteman only worked two days a week for the Secretariat. . Mr Bewry replied on 11th January with further information in support of why it was wrong not to re-appoint him. He was also critical of the time it was anticipated Ms Erwteman?s work would take given her stated limited availability. . On 3151 January and 1? February 2007 Ms Erwteman visited Norwich and met the prison govemor, another prison manager, and other members of the 1MB, including Mr Scott, to discuss the issues raised in Mr Bewry?s response. She had also met previously with Mr David Graham, the National Council member with responsibility for Norwich. Ms Erwteman made notes of these meetings which were sent back to the people she had seen so that they could check their accuracy. Copies of the ?nal versions of these documents were sent to Mr Bewry between 15lh February and 14th March as soon as they had been con?rmed as correct. . Ms Erwteman intended to meet with Mr Bewry to discuss the ?ndings of these meetings and record Mr Bewry's comments before completing her report. On 15?? February she wrote to him offering a number of dates in late February and early March, the meeting to take place at the Secretariat office in London, with his travelling costs being reimbursed. Not having heard from him she wrote again on March. stating that as he had not been in touch she was assuming he did not wish to meet. She invited him to contact her, but said that it'she heard nothing further she would conclude her investigation. On 14m March she wrote a further letter saying that having heard nothing furthershe was now finalising her report and would send him a copy in due course. 18. meetings, but also because his mother had recently died. He had also been in touch with his MP, Dr Ian Gibson, and indeed Mr McLean had received a letter from Dr Gibson on [3?h March. The latter had seen Mr Bewry at his constituency surgery and he expressed concern about him not being re-appointed, especially with him being the first and only black person on the Norwich Dr Page made a number of further criticisms, these including: 0 The Secretariat had been unable to supply Mr Bewry with copies of various documents be had requested related to his appointment to the 1MB 0 Mr Bewry? had not been allowed to be present at Ms Erwteman's interview with Mr Scott 0 Ms Erwteman had been selective about whom she chose to interview. including not meeting 1MB members who would have been supportive of Mr Bewry?s re-appointment - Matters addressed in the re-appointment review should have been addressed and dealt with at an earlier stage a While Ms Erwteman was supposedly independent, she had chosen to stay overnight with another member of the IMB when she visited Norwich The re-appointment review had not been completed to the required timescale Dr Gibson said that Mr Bewry would still be willing to meet with Ms Erwteman once he had received the requested documentation but wished to be accompanied by his solicitor, and if possible by Dr Gibson as well. to Mr Bewry saying he was happy for him and .Dr Page to meet with Ms Erwteman, and Mr McLean would also attend the meeting. Later on 10?h May he wrote to Mr Bewry offering three dates in June for Ms Erwteman and himself to meet with Mr Bewry and Dr Page. Mr Bewry replied on 15?h May to say that he and Dr Page could attend on 21St June. However, this was only on condition that the documentation previously requested would be supplied. On June Mr Bewry wrote to say that he and Dr Page would not be attending the meeting as the documentation had still not been received. . Despite the considerable period of time since then, no further meeting has been arranged, and the Secretariat has still to take a final view on whether or not Mr Bewry should be re-appointed. During the past year there has been further correspondence between Mr Bewry, Dr Page and Mr McLean. mainly relating to Mr Bewry's attempting to get hold ofthe documentation he had requested. which i understand was at least partially successful when he received information via the Open Govemment Unit in January 2008. This led to a letter from Dr Page to the Secretary ofState in February 2008 re-iterating his concerns about the case, which has prompted the present review. . Findings of the review assessing how well the re-appointment procedures operated in relation to Mr Bewry's membership: The recommendation not to re-appoint being made by an Acting Chair who had only held that position for two months The assessment report not being completed to the required deadline It not being possible for the Secretariat to complete its review of the case before Mr Bewry?s membership lapsed Ms Erwteman?s choice of whom to interview as part ofher inquiry Possible dates for a meeting with Mr Bewry being communicated to him before he had received the ?nal versions of the notes ot'Ms Erwteman?s interviews The failure of the Secretariat to supply requested documentation to Mr Bewry. leading to his postponing the meeting in June 2007 The fact that some 18 months after Mr Bewry?s appointment lapsed, the question ofhis re-appointment has still to be resolved. The recommendation not to re-appoint being made by an Acting Chair who had only held that position/or two months Mr Scott and Mr Bewry had been colleagues on the Norwich IMB for some time and I have no doubt that the former?s report reinforced by the conversations he had with the previous Chair accurately reflected his view of Mr Bewry?s performance. From my conversation with Mr Scott it was also clear that he saw competent to carry out the task. and that this ?tted with his previous experience as an employer. .Despite the above it is at least questionable that somebody with such a short experience of directly over-seeing Mr Bewry?s work should have been given this important responsibility. especially when it was anticipated that the decision was likely to be controversial. I am not in a position to advise on what might have re, but do think the process as operated lent itself to accusations of unfairness. The assessment report not being completed to the required deadline 23. i think it is unfortunate that the report on Mr Bewry could not be completed, along with those of the other 1MB members, at the start of September 2007. Mr Scott said that although he knew it would be difficult, he was ready to do it then. The delay has given Mr Bewry an additional source of grievance by feeling he was being treated differently, and it reduced the time available to the Secretariat to carry out any later investigative work of its own. The delay also does not appear to have led to any particular changes being made in the report. Mr Scott told me that when he returned in October 2006 he was advised by Mr McLean that he should go ahead and complete the documentation as originally intended. . . My! imam it not being possible the Secretariat to complete its review oft/1e case befbre Bewry 's membership lapsed 24. Had Mr Scott completed his appraisal when first planned, there would have been some three and a half months for the Secretariat to carry out its own inquiry and hopefully make a recommendation to the Secretary of State by the end of the year. As it was, the delay, which also missed the Secretariat?s own deadline. meant that only some seven weeks remained after the receipt of Mr Bewry?s response for a decision about the recommendation to be made, this also including the Christmas and New Year holiday period. There was then a further period of about six weeks before Mr McLean wrote back to Mr Bewry in December to say that his re- appointment required further investigation, that this would take some time to complete, and that in the meantime his membership of the 1MB would lapse. 25. It is clear that the vast amount of documentation supplied by Mr Bewry created a unique situation for the Secretariat. The normal next step would have been to seek further comments from the IMB Chair, in this case currently Mr Scott, but it was felt that this would be too onerous a task for him, especially given the fact that he Was still new to the role. This led to the decision to ask Ms Erwteman to undertake her inquiry, but in the meantime Mr Bewry?s membership had of course lapsed. 26. I asked Mr McLean why Mr Bewry?s membership of the could not have been continued on a temporary basis, pending the outcome of the inquiry, but apparently this would have been impossible under the legislation. In the light of this, it would seem essential that a ?nal decision should somehow have been made before 31St December 2006, even if a considerable amount of work was going to be necessary to achieve this. As it was, Mr Bewry could again feel justifiably aggrieved that while a final decision about his rec?appointment had yet to be made, his membership would in any case be ceasing for the time being. this Envreman '3 choice ofwho to interview as part ofl'ier inquiry 27. Ms Erwteman?s choice of the people to interview as part of the inquiry was based on her own assessment of whom she should meet in order to form a View on what she should put in her report. The decision was based on the information supplied by Mr Scott and the documentation subsequently supplied by Mr Bewry. Had Mr Bewry taken up the invitation to meet with Ms Erwteman he could have obviously have suggested other individuals she should meet and justi?ed the reasons for this. She would then have had to decide if this was necessary or not. 28. I think the basis point here is that we must regard Ms Erwteman?s inquiry as never having been completed, as a result of Mr Bewry deciding not to meet with her. Mr Bewry ?s not being allowed to attend ill-ls Envteman '5 interview with Mr Scott 29. Ms Erwteman was apparently willing for Mr Bewry to attend the interview, but Mr Scort was unwilling for him to be present. Again it seems reasonable given this situation that it was right for Ms Erwteman to see him by himself. at least in the first instance. Whether a joint meeting would have been helpful at a later stage can only be Open to conjecture, given the incomplete nature of Ms Erwteman?s inquiry. The suggestion that Ms Erwteman was not truly independent 30. in correspondence with Mr Bewry Mr McLean described Ms Erwteman as an bJ independent investigator, implying that she worked separately to the Secretariat. but in reality this is not the case. Ms Erwteman is an experienced retired civil servant who continues to do part?time work for the Secretariat, including fact finding inquiries of this nature. She had also previously been involved as a facilitator on behalt?of the Secretariat in what was termed a mediation exercise at Norwich in 2005 related to issues that had arisen then in respect of Mr Bewry?s behaviour. .I think in these circumstances it was unwise for Mr McLean to refer to Ms Erwteman as being ?independent?, but I also think this rather misses the point of the issue. The Secretariat itself is the independent body which adjudicates in cases where there is a diSpute between an Chair and one of its members. In that respect Ms Erwteman was acting on behalf of the Secretariat in undertaking her inquiry, which could equally well have been undertaken by another member of staff, if there had been an appropriately quali?ed person to do this. .However, I do think it is extremely unfortunate that she then chose to stay overnight with another member of the when she visited Norwich. It was known that Mr Bewry was at odds with other members, Mr Scott?s report having stated that there would be resignations were be to be re-appointed. Ms Erwteman has told me that the invitation to stay came from an old friend of hers and I see no reason to doubt her assurances that issues related to Mr Bewry were not discussed during her stay. Nevertheless the fact that she had stayed with the member could obviously be seen as identifying her with one side in the dispute and thus compromising the Secretariat?s independence. Possible daresfbr (7 meeting with Mr Bewry being communicated to him before he had received the?nal versions ofthe notes oft-iris Erwtemrm '3 interviews 33. Ms Erwternan produced comprehensive notes of her various meetings and these were returned to the individuals concerned so that any corrections could be made and their accuracy continued before sending them to Mr Bewry. However. not all the individuals made their comments immediately. which meant that some of the ?rst dates sent to him for a suggested meeting were before the final versions ot?the notes became available. .--\lthough all the notes were available by the time the meeting on 2 1q June was due to take place. i think it would have been preferable before that for no dates to be sent to him until all the relevant documentation could be provided. 8 The ?rilure of the Secretariat to supply requested documentation to il/jr Bewry. leading to his postponing the meeting in June .200 7 35. 36. There has been a history of Mr Bewry attempting to obtain papers related to his appointment from the Secretariat, the key events being: a In September 2006 he asked for copies of all papers held on him by the Secretariat, including a letter sent by the prison governor to Mr McLean in November 2005. Although the latter was found, he was informed that the other papers could not be located in the Home Of?ce repository where they had been sent for archiving I In January 2007 Mr Bewry requested copies of all papers related to his triennial review a In March 2007 Dr Page wrote to Mr McLean requesting that an urgent search be made for the missing documents. He was told that all the papers that could be found had already been sent to Mr Bewry, but the request was repeated in a further letter from Dr Page in May 0 As already mentioned, on 15?h June 2007 Mr Bewry requested that the arranged meeting should be postponed, the requested documents not having been received. He had also complained to the Information Commissioner 0 In September 2007 Mr McLean sent Mr Bewry copies of all papers relevant to the triennial review that were discloseable under the Freedom of Information Act. Mr Bewry replied that a number of relevant documents were missing, including an original draft appraisal document completed by Mr Scott in September 2006. He was still unwilling to meet until all the documents had been received. 0 In January 2008 Mr Scott informed Mr McLean that he no longer held a copy of the draft appraisal document, as it had been modi?ed into the ?nal version. This information was communicated to Mr Bewry. However. Mr Bewry was able to obtain a copy of the document via the intervention of the Open Government Unit, the copy having apparently been discovered in the e-mail system of another IMB member. I will not attempt any further analysis of these events but would say that I cannot find any evidence that the documents in question were deliberately withheld from Mr Bewry. There was also delay in the Secretariat responding because the responsible member of staff was off sick for an extended period. Despite this the events do very much illustrate that there should be clear instructions within the Secretariat and to individual Chairs as to what records should be retained on individual members, that anything written about members should be on the basis that they will have access to it if requested, and that systems should be in place so that requests for information can always be responded to I would also recommend that no information about an 1MB member should be sent away to the repository, where it will be more dif?cult to access, until a reasonable interval alter that person?s term of appointment has come to an end. The/km that some 18 months after Mr Bewry 's appointment lapsed, the question of his re-appointment has still to be resolved. 37. time of writing the present report over two years have gone by since Mr Mclean wrote to IMB Chairs asking them to recommend re-appointments. nineteen months since Mr Bewry?s representations were received and a year since he cancelled the meeting arranged between himself. Dr Page. Ms Erwreman and Mr McLean. While the decision to cancel that meeting lay with Mr Bewry, I think a decision should have been taken by the Secretariat reasonably soon after that as to how to terminate the re-appointment process and a recommendation made to the Secretary of State. The continuation of the process over such an extended period of time risks its being discredited, especially with the delay still failng to reach a satisfactory conclusion. Summary 38. In summary I would say that the re-appointment process did not work satisfactorily in that: a The responsibility for completing the re-appointment report had to be written by an 1MB Acting Chair who had only very recently taken up the post 0 The required documentation was completed late, leading Mr Bewry to assume he was being treated differently to other 1MB members 0 There was insuf?cient time to make a recommendation about Mr Bewry?s re- appointment before his membership lapsed - It should not have been implied that Ms Ervvteman was independent to the Secretariat . Ms Ervvteman?s staying overnight with another Norwich 1MB member risked her being seen as biased against Mr Bewry The ?nal set of meeting notes should have been made available to Mr Bewry before any meeting date was suggested - There should have been more efficient management of documentation, so that all that was requested could have been made available to Mr Bewry as expeditiously as possible 0 The whole process of re-appointment should not have been allowed to continue for such an extended period. Recommendations 39. I would recommend as follows: a The current processes for the re-appointment of members should be reviewed to address those circumstances where the recommendation has to be made by a Chair or Acting Chair who is still new in post 0 Recommendations by IMB Chairs against the re-appointment of members should always be made to the required time deadline. to ensure that suf?cient time remains to carry out the necessary further inquiries before membership lapses. 0 There should be consideration as to whether the current three month period from the receipt of the recommendation to the lapsing of membership should be extended. so as to allow suf?cient time for any further inquiries to be made - Arrangements for the storing of information about individual members by Chairs and the Secretariat should be reviewed to ensure that members can have easy access to documentation they are entitled to see. 40. During the course of this inquiry. it has become apparent that have not had any system for the annual performance appraisal by Chairs of individual members, although such arrangements are on the point of being introduced. I would support these changes. An annual report need only be brief but should describe the member?s record of visits and any other significant aspects of their performance. The penultimate report of any member's appointment should also indicate if their re-appointment in a year?s time might not be recommended so that action could be taken in the interim period to help them improve the carrying out of their duties. This would also assist devising a strategy as to how any eventual recommendation for non-appointment would be handled.