A response to National Offender Management Service (NOMS) – Changes to Prison
and YOI Rules and NOMS Policy - Review of Continuing Segregation
The Prisons and Probation Ombudsman (PPO) carries out independent investigations into
deaths and complaints in custody. The detailed role and responsibilities of the PPO are
set out in his office’s Terms of Reference. The PPO has two main duties:

to investigate complaints made by prisoners, young people in detention (young
offender institutions and secure training centres), offenders under probation
supervision and immigration detainees

to investigate deaths of prisoners, young people in detention (including residents in
secure children’s homes), approved premises’ residents and immigration detainees
due to any cause, including any apparent suicides and natural causes.
The purpose of these investigations is to understand what happened, to correct injustices
and to identify learning for the organisations whose actions we oversee so that the PPO
makes a significant contribution to safer, fairer custody and offender supervision.
Introduction
Thank you for inviting the PPO to comment on the recent amendment to NOMS’
segregation policy which arose as a result of the Supreme Court judgment, R (on the
application of Bourgass and another) v Secretary of State for Justice [2015] UKSC 54.
We welcome the additional safeguards provided by these amendments though are
disappointed that the urgency of the need to comply with the Court’s judgment, and
provide a new, lawful process, has meant that the usual consultation process could not be
held.
Our comments are therefore a response to the request for views on broader
improvements which could be made to NOMS’ segregation policy, in light of the proposed
wider review of segregation currently underway, and follow the structure of the policy as
set out in the consultation document.
Segregation Review Boards (SRB)
We welcome the time scales set out for the convening of Segregation Review Boards and
the guidance on the composition of the SRB. In the scenario where the person who
authorises segregation is the same person who made the initial decision to segregate, and
further authorisation must be sought at the earliest opportunity from an operational
manager who was not involved in the initial decision to segregate, it would also be useful
to add a timeframe for when this second opinion and counter-signing needs to be sought.
It is not clear what happens if the counter-signatory does not agree with the decision to
authorise segregation so including guidance to clarify this issue would be beneficial.
At paragraph 2.6, a list of individuals who “should” attend the SRB is provided. It would
be useful, for both operational reasons and to provide an audit trail, for some of these
individuals, if they are unable to attend, to be required to submit a short report to the SRB
meeting. This is particularly relevant in the case of the segregation officer and the
psychologist, who should be able to provide an update on the impact of segregation on
the individual. Where the prisoner is the subject of an ACCT, the attendance of the
psychologist should be mandatory.
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In the case of young people, paragraph 2.7 is rather contradictory, stating that the
following individuals “must” attend but then qualifying this with the phrase “as
appropriate”. This begs the question as to who determines who it is appropriate to
attend. It would therefore be useful to include a line in the policy on the need to
acknowledge the specific vulnerabilities of young people in segregation and to ensure that
the broadest range of views are represented at the SRB to ensure the young person is
provided adequate protection.
The strategy for the future management of the prisoner to facilitate their return to normal
location, should be created at the initial SRB, as set out at paragraph 2.9. However, this
strategy should be reviewed, and where relevant amended, at each subsequent SRB. We
have previously recommended that an audit trail is maintained showing what steps are
being taken to bring the segregation to an end as soon as possible.
Prisoner attendance at SRB’s are important. Therefore where, at paragraph 2.15, the
policy enables prisoners to be completely excluded from an SRB, there should be a
requirement to provide a reason, not least to the prisoner, for that exclusion.
The requirement to provide reasons, for the continued segregation, to the prisoner is
important and we welcome the commitment outlined at paragraph 2.20. Where it states
that the reasons should be understandable to the prisoner, it is important that a member
of prison staff checks that the prisoner has understood the information provided to them
and that they are aware of the process of review.
Monitoring
We welcome the commitment to monitor the use of segregation. This will be a useful tool
to prisons to establish if there are any patterns or shared characteristics amongst those
being segregated and enable prisons to reassure themselves that this policy is not
discriminating against any one group of prisoners. The consultation proposes that the
Segregation Monitoring and Review Group “consider separating the figures for those
prisoners placed in segregation whilst on an open ACCT and those who have an ACCT
opened whilst in segregation”. We agree that these two figures should be separated. It
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would also be useful if this information could be made available to PPO investigators when
there is a death in a segregation unit.
Segregation beyond 42 days
We agree with the proposals for the Deputy Director of Custody (DDC) First Review but
add that the SRB should be required to submit a plan for the prisoner’s reintegration for
consideration by the DDC. The participation of the prisoner at the review stage is
important and therefore it would be useful if greater support could be made available to
prisoners, particularly those with learning disabilities, or who do not speak English as a
first language, to make representations. Finally, it is also important that the reasons for
the continued segregation are clearly explained to the prisoner.
Authorisation placement in a care and separation unit beyond 21 days – young
people
As with adult prisoners, the documentation submitted to the DDC Review should include a
reintegration plan; support should be provided to young people to make representations
at this review stage and if continued segregation is granted, then the young person must
have this clearly explained to them.
Segregation for those subject to ACCT
PPO recommendations relating to segregation have often focused on the need to protect
prisoners who are at risk of suicide and self-harm by ensuring that they are not held in the
segregation unit unless exceptionally, for example, that they are such a risk to themselves
or others and that no other location is appropriate. Segregation necessarily reduces
protective factors against suicide and self-harm, such as activity and association, so
managers need to be required to assure themselves - and record - that segregation is
indeed a genuinely last resort for those in crisis. It is also important that they are subject
to enhanced ACCT case review procedures while they remain in segregation.
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Smoothing the process
Since January 2013, the PPO has received 64 complaints relating to segregation, of which
37 were eligible for investigation and of these, 15 were either upheld or partially upheld.
The focus of these 15 complaints was often the fact that the prisoner had been placed in
segregation, and the quality of the regime offered while in segregation.
Learning lessons
We note that you will consulting on further changes to the segregation system in early
2016. We recently published a Learning Lessons Bulletin on segregation which drew on
themes highlighted by our investigations and which maybe relevant to this forthcoming
consultation. A copy of our report has been has been appended. The report identified
seven lessons which have been outlined below.

Lesson 1 – Special accommodation and protective clothing should only be used if
absolutely necessary and after all other options have been exhausted. If they are
used, an enhanced case review should be held straight away, staff should engage
actively with the prisoner and observe them at least five times an hour, and plans
should be made to return the prisoner to standard accommodation and normal
clothing as soon as possible.

Lesson 2 – Staff responsible for the care of prisoners in segregation units should
fully understand and follow the mandatory procedures for safeguarding segregated
prisoners set out in PSO 1700, Segregation, and PSI 64/2011, Safer Custody. Staff
should be aware of their personal responsibilities for protecting prisoners,
particularly those identified as at risk of suicide and self-harm.

Lesson 3 – Segregated prisoners should be provided with the means to occupy
themselves, at minimum reading material and a radio.

Lesson 4 – During an Initial Segregation Health Screen and ensuing Segregation
Review Boards, staff should base decisions about fitness for segregation on the
prisoner’s full mental health history and other relevant factors that could potentially
compromise their ability to cope, not on current demeanour alone.

Lesson 5 –Lengthy periods of segregation are to be avoided. When unavoidable,
Segregation Review Boards should be held regularly to assess how well the prisoner
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is coping, to plan for their relocation to more appropriate accommodation, and to
develop a careplan to help prevent deterioration in mental health.

Lesson 6 – Exceptional circumstances to justify the segregation of a prisoner
subject to ACCT procedures should actually be exceptional. All other options should
have been exhausted and the reasons for this clearly documented.

Lesson 7 – When there are exceptional reasons to justify a prisoner at risk of
suicide and self-harm being held in segregation, the additional required safeguards
in PSO 1700 should be followed, including holding a mental health assessment and
an ACCT review within 24 hours.
Other issues
We have received a number of complaints from young people that, although they were
not formally segregated, they experienced such a restricted regime that it amounts to
de facto segregation without the safeguards attached to formal segregation. These
complaints typically come from extremely challenging young people who are subject to
a complex mix of behaviour management plans, single unlock, IEP levels and privilege
losses following adjudications.
In the cases we have investigated there has been no single record showing how much
time the young person had out of their room each day, what access they had to
association and purposeful activities or what privileges they enjoyed. As a result we
have found it impossible to establish what regime the young person was subject to and
have been concerned that there could be a risk of de facto segregation without due
process. We consider that this is not acceptable and that time out of room,
association, access to purposeful activity and privileges should be recorded in a way
that makes it clear exactly what regime the young person had access to on any given
day.
December 2015
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