COVID19

Three Keys to Unlocking the Problem of Prisons in a Pandemic

The current pandemic has had a significantly damaging effect on life in our prisons. Apart from the risks of infection to which prisoners and staff are all exposed, prisoners have been forced to spend far more of each day (up to 23 hours) in their cells, deprived of access to education and training programmes, deprived of social contact with other prisoners, and deprived of visits from loved ones. This has led the Scottish Human Rights Commission to become ‘deeply concerned’ that ‘current conditions being experienced by some people could amount to inhuman and degrading treatment, in breach of Article 3 of the European Convention on Human Rights’.

The Scottish Government and the Scottish Prison Service have been making substantial efforts to mitigate such damage, both by protecting against the risk of infection and by beginning to make (security-adapted) mobile phones and ‘virtual visits’ available to prisoners; prison numbers have also been reduced, thus exposing fewer people to these damaging effects, and reducing infection risks by increasing single cell occupancy (at 80% on 11th of June). However, we believe that more needs to be done, and faster. 

Given the significant impact that lack of family communication has not only on those in prison, but also for their partners and children, the provision of mobile phones, and of virtual visits, should be expanded across the prison estate without further delay. But further urgent steps must also be taken to reduce the number of people entering prison. The prison population has decreased by 15% since the onset of the pandemic, from 8,094 on 5th of March to 6,909 on 12th of June, but this has been largely due to the suspension of criminal trials. Given the significant backlog of cases, we must fear that, unless further steps are taken, the prison population will increase again when trials resume, to its previous unsustainable level as the highest (pro rata) in Western Europe. 

Following the Justice Secretary’s commitment to release up to 445 prisoners who were coming towards the end of their sentence, 348 have actually been released. This is a welcome start on the process of reducing prison numbers, but more can and should be done.

There are three key ways in which the numbers being sent to prison or kept in prison can continue to be reduced without creating significant dangers to the public; two of these have been highlighted by recent decisions from the High Court of Justiciary, and a third has yet to receive the attention it deserves. We urge reflection on the potential for greater use of these existing measures, as a valuable part of the pandemic response.

Sentencing in ‘threshold cases’

In HM Advocate v Lindsay [2020] HCJAC 15, the Court held that in ‘threshold cases’ (where the choice between a sentence of imprisonment or community is ‘finely balanced’, or where the prison sentence is a very short one), ‘the fact that prisons may not currently be operating normally may be a factor to weigh in the mix’. Bearing in mind that the courts anyway operate with a presumption against sentences of less than one year, we welcome this ruling: if there is any opportunity to avoid imprisonment, sentencers should take it.

Remanding in custody

In HM Advocate v JD and BK [2020] HCJAC 15, the Court ruled that ‘the length of time during which a person is likely to remain on remand is a factor in deciding whether to grant bail. This factor must be given greater weight than hitherto’, for as long as the current crisis lasts. Being remanded in custody while awaiting trial is always damaging, and is even more harmful under current conditions. 20% of the prison population is currently held on remand. Courts should make every effort to avoid such remands and to grant bail to the accused, subject to appropriate conditions.

Home Detention Curfew

Early release through the use of Home Detention Curfew (HDC) is another way of reducing the prison population. Despite being long-established, the scheme remains seriously underused: only 75 prisoners are currently on HDC, one third of the number released on the same scheme at the end of 2018. There is no obvious explanation for the strikingly small numbers released, especially at a time when we would expect use of the scheme to be at its highest. We therefore call on the SPS to encourage greater use of HDC amongst its decision-makers, and to avoid the ‘error terror’ that makes it hard to release prisoners.

We will continue to monitor developments in these key areas.  

‘Prisoner householding’: the latest threat from Covid-19

Scottish Prison Service issued details yesterday (28 April 2020) of the regime for those in isolation due to Covid-19.  The policy states that, on the advice of Health Protection Scotland, SPS ‘should consider a prison cell a household’ for the purposes of self-isolating in a closed prison setting.  The practical consequences of this approach raise a number of concerns regarding the safeguarding of prisoners’ rights during the Covid-19 crisis.

Prisoners symptomatic of Covid-19 ‘must be held in isolation…for a minimum of 7 days or until they are asymptomatic’ in terms of rule 41 of the prison rules (as amended for the duration of the coronavirus outbreak). 

But equally, those sharing a cell with symptomatic prisoners ‘must be held in isolation…for a minimum of 14 days’ in terms of the same rule.

This policy places exceptional restrictions on prisoners’ daily lives, albeit in the legitimate interests of public health, well beyond those endured by following the government advice to ‘stay at home’ in the community. 

‘Self-isolating’ prisoners must take all meals in their cell, have no access to recreation or outside exercise and only restricted access to communal phones.  In the case of concerns for mental wellbeing as a result of ‘prolonged isolation’, limited access to outside exercise may be provided subject to risk assessment.  But what does prolonged isolation mean?  The usual maximum period of 72 hours isolation (under rule 41) is already prolonged to 14 days before prison governors require to seek authority for any extension. 

These measures, of themselves, present a serious threat to the residual liberty and humane treatment of segregated prisoners.  But above all, if a prison cell is to be classified as a ‘household’, then it will be especially important to tackle the enduring problem of prison overcrowding. 

As the Scottish Human Rights Commission has highlighted, in its letter to the Scottish Parliament’s Equalities and Human Rights Committee, ‘key concerns relate to reducing the detained populations to mitigate the inherent risk of maintaining people in close confinement and spreading the virus’.  We share the concerns of the SHRC that ‘extended solitary confinement in spaces designed for one but holding two will be detrimental to both physical and mental health’.

Prisoners in shared cells face a greater risk of being held in isolation (aside from the increased risk of infection) than if they occupied single cells alone.  A policy of ‘prisoner householding’ therefore risks criticism as unreasonably and unlawfully placing prisoners at risk. 

How could things be done differently?  The policy itself provides some answers.  Prisoners who are ‘shielding’ as clinically extremely vulnerable will be accommodated in single cells, and ‘offered an opportunity to take outside exercise 3 times a week’.  Others with underlying health conditions who ‘may wish to restrict contact with others’ should be accommodated in single cells ‘where possible’ and should be ‘offered outside exercise on a daily basis’.  In all such cases, the policy anticipates that social distancing will be adhered to at all times.  These conditions should be available to all prisoners. 

All possible steps must be taken, therefore, to safely reduce the prison population, so that the significant threats posed by ‘prisoner householding’ in shared cells are avoided. 

The first executive ‘early releases’ of prisoners in Scotland are due to take place tomorrow (30 April).  Updated weekly prison population figures, taking account of those releases, are due to be published on Friday (1 May).  We have already seen the potential for legal action if executive powers of release are not utilised to the fullest extent.  Howard League Scotland will continue to monitor the data closely.

Archive

2018

2015

2014

2006

Subscribe to COVID19