Commentary on Prison Brutality 2012

“In must be said at the outset that violence between prisoners and prisoner officers although an unwanted situation is not uncommon.

Prisoner officers have the duty to maintain order in our prisons and this naturally would entail controlling (in some instances with the use reasonable force) those unruly prisoners who (by their very incarceration and nature of being found guilty of a criminal offence) have a lack of respect for authority and rules.

While prison officers find themselves in a hostile environment it takes a patient, discipline, mature, humble and respectfully officer not to lose their temper and resort to excessive force in attempt to maintain order in the face of aggression, disrespect and sometime unprovoked violence by a prisoner.

Notwithstanding the onerous responsibility of a prison officer excessive force and brutality is forbidden and against both the prison rules and the laws of the country.

Several high court judgments have been delivered containing judicial comments that include the statements that the increased awards for exemplary damages have not resulted in deterrence of prison officer brutality.

However while I appreciate that exemplary damages are there to financially punish, it is my humble opinion that deterrence can only be achieved through criminal proceedings (for instance charging the prison officer with a criminal offence for the brutality) or disciplinary proceedings that punish prison officers for the use of excessive force (and also punish prisoners that use violence against prison officers)

The Commissioner of Prisons with the guidance of the newly formed legal department of the prisons are currently examining all judgments where there has been a judicial finding of misconduct by prison officers as to what internal disciplinary proceeding (if any) should follow.

The prison rules provide that prison officers (and prisoners) may be punished at a disciplinary hearing concerning breaches of the Prison Rules (including beating a prisoner). Such punishments include dismissal from service.

However unlike the situation with police officers and that of the Police Service Tribunal there is no standing Prison Tribunals and where a finding can result in loss of employment and the proceedings be subject to judicial review, the tribunal proceedings must be properly carried out in accordance with the principles of natural justice. Such proceedings would need to be properly funded, manned and will also take time.

Further while it is possible to automatically use the judicial finding (without having a separate disciplinary proceedings) as a finding of guilt in the disciplinary proceedings this ought not to be done in cases where the prison officers did not provide their side of the story (as in the case of both claims of Owen Goring (awarded $2000, 000.00 in damages) and Sean Wallace (awarded $244,000.00 in damages)).If this is done it would offend thenatural justice principles of opportunity to be heard.

In the Sunday’s Express Article the following question was posed “What can be done by lawmakers to make offending officers bear personally the costs, without calling upon the taxpayer to foot the bill?”

On this issue and speaking as an attorney at law I think that they are far reaching and potentially dire consequences if prison officers would be personally liable for breaches of the law that occur during the course of their employment.

Such change in law would be a drastic revolution in centuries of developed common law principles of employers’ liability.

While such a change would certainly financially punish prison officers that abuse prisoners it would also have the unintended consequence of making the prison officer feel restricted and apprehensive of using reasonable force for fear of unsubstantiated claims of excessive force being alleged.

Also certainly where an officer can be made to pay as much as $100,000.00 in damages which may cripple him financially it may do more harm than good and result in officers resigning and deterring others from applying. It is currently part of the rules that an officers salary may be forfeited in cases of breaches and I view this as proportional punishment to the officers earnings.

I am of the humble opinion that deterrence and curbing of abuse would only properly be achieved if offenders are punished and further abuse would not occur if prison officers are screened and trained to ensure they have the necessary character and guidance to deal with situations where potential abuse may arise and where abuse does occur the officer should be punished after a properly conducted disciplinary tribunal.

Daniel Khan

Inspector of Prisons 2013