Guest post by Dr Laura Janes and Andrew Neilson: The government’s treatment of prisoners in our locked-down prisons is cruel and untenable

I am pleased to host this guest blogpost by Dr Laura Janes and Andrew Neilson. Dr Laura Lanes is the legal director at the Howard League for Penal Reform and oversees its specialist legal service for children and young adults. Andrew Neilson is the director of campaigns at the Howard League for Penal Reform.

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It is scary to think how quickly we get used to terrible things.  Just a few months ago, many of us anxiously watched as the number of people who had died from the Coronavirus approached one hundred, then a thousand.  Since March we have become so acclimatised to the new horrific reality that we see less than one hundred deaths a day as comparatively good news.

For several years the Howard League has been concerned about the use of solitary confinement for limited periods of time on individual people in prison.

In 2017 we brought a judicial review on behalf of AB, a child who routinely spent 23 hours a day confined to his cell for 55 days when he was just 15 years old at Feltham prison.  The Government conceded much of the claim, as it had failed to comply with its own procedures which are designed to ensure appropriate safeguards are in place given the serious and irreversible risks associated with solitary confinement.  Whether what happened to AB was inhuman and degrading will be examined by the Supreme Court next year.  Following our case, numerous professional and scrutiny bodies including the BMA, the Royal College of Psychiatrists, the Joint Committee on Human Rights and the Chief Inspector of Prisons expressed grave concerns about the practice of keeping children in solitary confinement in prison, noting it happens too often and for too long.

But what has concerned a relatively small number of prisoners, has now become the new normal.

Some 80,000 men women and children in prison are either in prolonged solitary confinement or in overcrowded conditions.  In a single day, 24 March 2020, the prison service went into lockdown and over 80 days on, it remains in that state.  Prisons are devoid of purposeful activity and opportunities for people to make amends.  The children in prison have had no education, rates of self-harm in women’s prisons have increased and the entire estate has been starved of contact with the outside world.  Open prisons no longer serve their function of preparing people for the community.

In a letter to the Justice Committee Dame Anne Owers, Chair of the Independent Monitoring Board highlighted a number of concerns, including reports of increases in self-harm, self-inflicted deaths and violence in some prisons.  She reports particular concerns about the “cumulative impact of lockdown, particularly on prisoners who have, or are developing, mental health conditions.”

Children and young people in prison call the Howard League’s legal advice line every day.  They tell us about their experiences, confined to cells the size of a car parking space, worried about their parents and grandparents.  Many have lost all sense of time due to being confined to their cells for 22 hours or more a day.  One young person described feeling constantly hungry due to the restrictions on the additional food that teenage boys can usually order from the canteen system and regularly rely on to supplement the meagre prison diet.  He told us he sleeps all day to try and forget his hunger.  A child, who until recently was leaving prison each day to attend college on a temporary licence, described the experience of prison now as “just waiting.”  These experiences are typical.  Both young people were also typical – young black boys.  The secure estate for children is a manifestation of discrimination  –  half of all children in prison are from ethnic minorities, compared to their making up only around a fifth of children from 10-17 in the wider population.  A third of children in prison are on remand, two thirds of whom will not go on to get a prison sentence.

We subsequently discovered that on the same day that prisons went into lockdown, ministers had received advice that as many as 3,500 prisoners might die – one in twenty of those in prison – if action was not taken to reduce the prison population by 15,000.  In response to this advice, the Ministry of Justice locked down our prisons immediately and announced on 4 April 2020 that it would release some 4000 prisoners on temporary licence under electronic tag.  It has recently emerged that the Ministry of Justice entered into contracts with private providers to supply these tags at a cost of £4,000,000.

This information only came to light after the Howard League, along with the Prison Reform Trust, took the unusual step of challenging the government’s failure to follow through on its promise to release the 4000 prisoners.

By 17 April just four people had been released under the Covid temporary release scheme. The two charities served a letter before action on the government setting out our concerns and threatening to serve proceedings if the government did not respond satisfactorily. The thrust of the challenge was that it was irrational and unlawful for the government to announce it would release a substantial number of prisoners to save lives in response to the threat of COVID-19 but not to have done it.

In response to this letter before action, the government provided a detailed letter explaining that the advice had changed and that while the release programme had not been abandoned (indeed, we were told a further two hundred applications had been approved), a high volume of releases was no longer required. Instead a range of strategies were being employed to protect lives of people in prison. The government disclosed more than a dozen key documents to us on 28 April to support its arguments and subsequently gave us permission to publish its response and the documents it disclosed. In light of this, it could no longer be said that the government’s failure to release thousands of prisoners was irrational and we took the decision not to issue proceedings at that point in time.

As well as the original PHE advice from March, the government produced subsequent advice dated 24 Aprilwhich found early emerging data that the ‘explosive outbreaks’ of COVID-19 in prison which were feared at the beginning of the pandemic wave are not being seen. Accordingly, PHE revised its estimate of prisoner deaths from the virus from up to a reasonable worst-case scenario of 3,500 to a best-case scenario of around 100, provided severely restricted regimes remain in place for up to a year.  As the courts return to business, we will see the prison population increase.  It is unclear how the methods that have been used so far to contain the virus will be manageable with an influx in people entering prison.

The release scheme has not been abandoned but it remains painfully slow – as of 29 May 2020, just 128 people had been released.  This is despite the fact that a month earlier we had been told that some 200 applications had been approved.

Where does that leave us?  The decision not to release a substantial number of prisoners under the temporary release scheme may no longer be so unreasonable as to be irrational but its consequences are cruel.  As our latest letter to the Justice Secretary highlights, the current situation is inhumane and untenable. It is also unlawful and is likely to result in untold and potentially irreversible harm to some of the most vulnerable in our communities.  Let’s hope the government takes action and we do not need to initiate another legal challenge.

The Howard League has published all its correspondence on the prisons and Covid on a dedicated page on its website.

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