Releasing the Pressure on Prisons

The Covid 19 pandemic has led to lock-downs of populations the world over. The global has become the local. For our safety we are subject to unprecedented restrictions on our movement. So, it is cruelly ironic that Government inaction has created the situation where Covid-19 has taken a hold on those in our prisons.

As of 27 March 2020 there were 79,548 men and 3,461 women imprisoned in the UK (this figure does not include those in Young Offender Institutes or other forms of secure accommodation). Imagine what would happen if, due to staff shortages, distancing and isolation are not controlled properly in an unhygienic environment with woefully inadequate medical treatment. That could soon be the position that the 83,009 adults locked up in our prisons could find themselves in.

Yet the Government has only taken a tiny step towards preventing it. Here we suggest further steps that could be taken and why they should be taken.

Pregnant Women and Female Prisoners

In response to the ongoing threat of the Corona Virus taking hold in prisons, HMPPS announced that they were temporarily releasing pregnant women and female prisoners in Mother and Baby Units who:

1. do not pose a high risk of harm;
2. had been risk-assessed; and
3. accommodation found for them.

The release would be on temporary licence. The reason for the release is to protect the mother and their children from exposure to the Covid 19.

Those releases are welcomed, but it has to be asked why this policy cannot be applied to other prisoners. In particular, there are two groups of prisoners who should be considered for release. Those on remand and Category D serving prisoners.

Remand prisoners

The starting point is that all those on remand—save in exceptional circumstances—benefit from a presumption in favour of bail. They must be kept free unless there are substantial grounds to believe they would fail to surrender, commit further offences and/or interfere with the administration of justice.

The current country-wide lockdown means that a person who provides an address to the court would effectively be under a curfew if released on bail. This is a condition courts can impose when granting bail. This curfew can also electronically monitored. Some areas even have provision for GPS monitoring. The criminal justice system has the means to ensure public safety while reducing the risk of infection in prisons.

In addition, the courts are public bodies. They must act in accordance with the Human Rights Act 1998 and the European Convention on Human Rights [ECHR]. In particular, they must ensure that the rights of the accused under Articles 2 (right to life), Article 3 (prohibition on torture and inhumane treatment), Article 5 (right to liberty and security), Article 8 (right to private and family life) are respected. Cases of Covid 19 in prisons are increasing. There may come a point where the continued detention of remand prisoners is a breach of one or all of these rights.

There are several reasons why remand prisoners should have their bail position re-considered:

1. at the time of writing, trials in both the Crown and Magistrates’ courts have been postponed;
2. all visits to prisoners have been suspended so it has become increasingly difficult for litigators to prepare for hearings and trials
3. unless a litigator has ready access to videolink equipment with a bridging connection they will not be able to see their client. Even those who do have the relevant equipment are going to find it exceptionally difficult to get a video-conference booking. With the whole CJS going remote, connections to prisons will very quickly be overwhelmed. It will be like trying to get a supermarket delivery slot.

Without proper access to legal advice it cannot be said that prisoners are able to properly participate in the trial process. Equally it cannot be said that litigators are able to effectively prepare and conduct cases.

The Criminal Procedure Rules can come into play here and we have added comments in italics to show the arguments that could be used. These very problems are matters that should be considered by government when reviewing who should be considered for release and by practitioners and judges when considering bail.

The overriding objective

1.1.—(1) The overriding objective of this procedural code is that criminal cases be dealt with justly.

(2) Dealing with a criminal case justly includes―

(c) recognising the rights of a defendant, particularly those under Article 6 of the ECHR

Quite simply, the right to access free and independent legal advice and the right to participate in your trial are, at this time, almost non-existent.

(d) respecting the interests of witnesses, victims … and keeping them informed of the progress of the case. If cases cannot be prepared due to a lack of access, then when the lockdown is over the backlog of cases will be far larger than it would be if relevant remand prisoners are released. If they remain in prison then not only will their cases have to be prepared, but also the cases of new inmates have to be dealt with at a time when prison staffing is down and there is decreased facility for legal consultations;

(e) dealing with the case efficiently and expeditiously. Although practitioners are trying, this just cannot happen at the moment for remand prisoners.

(f) ensuring that appropriate information is available to the court when bail and sentence are considered. This has to now include information about the exposure to the virus, the staffing levels and so far as possible, the prisons adherence to the care standards that they are statutorily required to uphold. We already know that certain care standards, for the elderly and infirm in some prisons is lacking – see Care Quality Commision report

How to decide which remand prisoners to release

A starting point is to look at considerations under paragraph 1.1 (2) (g) of the Criminal Procedure Rules where participants in a case have to when dealing with the case:

“take into account―

(i) the gravity of the offence alleged,

(ii) the complexity of what is in issue,

(iii) the severity of the consequences for the defendant and others affected, and

(iv) the needs of other cases”.

To inform how to apply those considerations during the current crisis a logical starting point is the decision table being used by the CPS when deciding whether a person can be bailed.

The CPS list is not exhaustive but it is a good starting point, and has the advantage of using concepts and criteria that prosecutors will have started to use, and which judges will have become accustomed to over the last few weeks.

Category D prisoners

Category D prisoners are:

“Those who can be reasonably trusted not to try to escape, and are given the privilege of an open prison.”

This means that the risk assessment, which is taking place in relation to pregnant women and those who are in mother and baby units, has already taken place for all Category D prisoners.

As for finding places for the prisoners to be released there are already existing bail hostels and a number of those who could be released will already have places to go. The procedures are already in place for the supervision of these prisoners by electronic tagging and any risk that might exist would be manageable within the framework of existing general licence conditions.

The most common licence conditions are to

1. a)   be of good behaviour and not behave in a way which undermines the purpose of the licence period;
2. b)   not commit any offence;
3. c)   keep in touch with the supervising officer in accordance with instructions given by the supervising officer;
4. d)   receive visits from the supervising officer in accordance with instructions given by the supervising officer;
5. e)   reside permanently at an address approved by the supervising officer and obtain the prior permission of the supervising officer for any stay of one or more nights at a different address;
6. f)     not undertake work, or a particular type of work, unless it is approved by the supervising officer and notify the supervising officer in advance of any proposal to undertake work or a particular type of work;
7. g)   not travel outside the United Kingdom, the Channel Islands or the Isle of Man except with the prior permission of your supervising officer or for the purposes of immigration deportation or removal.

In addition, the following categories of licence condition could take into account a Cat D prisoner’s personal circumstances:

1)   residence at a specified place;

2)   restriction of residency;

3)   making or maintaining contact with a person;

4)   participation in, or co-operation with, a programme or set of activities;

5)   possession, ownership, control or inspection of specified items or documents;

6)   disclosure of information;

7)    curfew arrangement;

8)   freedom of movement;

9)   supervision in the community by the supervising officer, or other responsible officer, or organisation.

Home Detention Curfew (“HDC”)

Section 246 of the Criminal Justice Act 2003 provides a power to release prisoners on licence before the law requires their release. It is a discretionary power exercised by prison governors.

Release on HDC would allow prisoners to complete their sentences outside of the cramped confines of prison. Prison governors should expedite such applications.

The Home Office has issued guidance for prisons on the use of HDC. Paragraph 4.3.5 provides a list of those prisoners considered unsuitable for HDC not by law but for policy reasons:

1. those serving sentences for possession of an offensive weapon;
2. those with a history of sexual offending but not required to register; and
3. those liable to deportation but not served with a decision to deport.

In the present circumstances, the policy rationale for the following categories holds little weight.

Possession of an offensive weapon encompasses a large range of factual scenarios, not all of these represent a threat to the public. Sentences for possession of weapons in public are necessarily harsh and—more often than not—entail immediate custody. However, in the circumstances cases should be looked at on a case-by-case basis rather than applying a blanket policy decision.

Similarly, sexual offences cover a wide range of offending. What matters is the risk that a person poses to society. In times of emergency, that is the criteria which should be applied.

Lastly, the current situation has led to a decrease—if not a complete halt—in deportation flights. Provided foreign prisoners are not barred by statute and all other criteria for HDC are fulfilled, the bar on those liable to deportation but not served with a decision to deport is unreasonable.

The young and the vulnerable

It goes without saying that every argument that has been made above applies even more so when the prisoners we are talking about are the young, vulnerable and elderly. All of these people are reliant, more than other prisoners, on outside agencies and contact with care providers for their survival and well-being during periods of incarceration.

The need for prison releases during this time.

In these times of heightened anxiety it seems that the prison service response has been to, at least officially, institute a lock-down. Prisoners, who could safely be released, are having to stay in their cells for 23 hours a day. As the prisons are not being deep cleaned, this will not prevent the virus spreading. If you add to this the overcrowding, and admission of new prisoners into the prison system, it seems an almost inevitable outcome that prisoners’ Article 3 rights (prohibition of inhuman or degrading treatment) will be breached.

It must be remembered that while the courts have accepted the medical assistance available in prison hospitals might not always be at the same level as in the best medical institutions for the general public, they have underlined that the State had to ensure that the health and well-being of detainees were adequately secured by providing them with the requisite medical assistance Khudobin v Russia

With staffing levels within prisons running at sub optimum levels it is hard for the staff who are on duty to supervise prisons. There is no doubt that our prisons have become institutional petri dishes for the coronavirus. As of 2 April 2020 a reported 67 prisoners have contracted Covid 19 and three elderly people have suffered the indignity of dying while isolated in prison.

The need for releases could not be more pressing and there is precedent for such releases during the current crisis. On March 16, after four prisoners tested positive for Covid 19, the Italian government adopted a decree that, among other measures, will allow for early supervised release of prisoners with less than 18 months left to serve on their sentence. In Northern Ireland they are releasing 10% of their prison population

In a response dated 19 March 2020 Human Rights Watch said this:

“Government agencies with authority over people housed in prisons, jails, and immigration detention centers should consider reducing their populations through appropriate supervised or early release of low-risk category of detainees including for example, those whose scheduled release may be soon, those who are in pre-trial detention for non-violent and lesser offenses, or whose continued detention is similarly unnecessary or not justified. Detained individuals at high risk of suffering serious effects from the virus, such as older people and people with underlying health conditions, should also be considered for similar release with regard to whether the detention facility has the capacity to protect their health, including guaranteed access to treatment, and taking into consideration factors such as the gravity of the crime committed and time served”.

Due to the Government advice on distancing, Her Majesty’s Inspectorate of Prisons has suspended all inspections until further notice. That makes it all the more important that the Government listens to the concerns around the impact of Covid-19 in prisons. All prisoners have the right to know that their care will ensure:

“Safety: Prisoners, particularly the most vulnerable, are held safely.

Respect: Prisoners are treated with respect for their human dignity.

Purposeful activity: Prisoners are able, and expected, to engage in activity that is likely to benefit them.

Rehabilitation and release planning: Prisoners are supported to maintain and develop relationships with their family and friends. Prisoners are helped to reduce their likelihood of reoffending and their risk of harm is managed effectively. Prisoners are prepared for their release back into the community”. Her Majesty’s Inspectorate of Prisons.

At this time the only equitable way to achieve that is to release those prisoners who are assessed as being suitable for such release.

Sam Stein Q.C.

Lynton Orrett

Omran Belhadi