The COVID-19 pandemic has forced the UK government to rapidly introduce new legislation to curtail its spread. No. 10 have insisted that these measures are necessary to protect high risk and vulnerable people. However, some of the most vulnerable individuals in society seem to have been largely neglected from this discourse; those currently detained in prison.
The current position in UK prisons
At the time of writing, 107 prisoners and 19 staff have already tested positive for COVID-19. Nine prisoners and two prison officers have died.
The spread of the virus within UK prisons is an inevitability. Prisons are epicentres for infectious diseases because of the unavoidable close contact in often insanitary, poorly ventilated, and overcrowded facilities, with inconsistent access to health-care services. Those inside are forced to live in densely-populated conditions making social distancing an impossibility. Prisoners unable to implement measures available to the wider public to keep themselves safe face becoming critically ill in an environment that is not equipped to tackle infectious disease, nor care for those who become sick.
Prisons are full of vulnerable people who statistically tend to be in poorer health than the general population. Because of this they can be more susceptible to infectious disease and so are facing a real risk to life. Prison staff, necessary to keep prisons running and prisoners safe, are required to go to work and then risk carrying the virus home with them and out into the wider community.
A threat to prisoner rights
People in detention are not only likely to be more vulnerable to COVID-19, they are also especially vulnerable to potential human rights violations. While legitimate emergency measures are needed to prevent further outbreaks of COVID-19, authorities need to ensure human rights are respected. The COVID-19 outbreak must not be used as a justification for undermining adherence to all fundamental safeguards.
Article 2: The right to life
Article 2 of the European Convention of Human Rights places an obligation on the state to take measures to avoid preventable deaths in custody. Under international human rights law, every person has the right to the highest attainable standard of physical and mental health. The United Nations Standard Minimum Rules for the Treatment of Prisoners ( the Nelson Mandela Rules), set out that when a state deprives someone of their liberty, it assumes the duty of care to promote his or her physical and mental health and well-being. This duty of care is crucial, because prisoners have no alternative but to rely on the authorities’ provision of medical treatment.
UK law requires an equivalence of standards for prisoners as is provided in the wider community and NHS England has responsibility for commissioning all healthcare services for prisoners. In practice, however the healthcare services many people in prison receive on a day to day basis is of an inferior standard to that available in the wider community, particularly in light of recent cuts to prison funding and the current burden on the NHS.
On 16 March 2020, the Ministry of Justice issued guidance to prisons, implementing a number of measures aimed to curtail the spread of the virus. One strategy, dubbed ‘cohorting’, allows prisons to place detainees displaying symptoms of COVID-19 into a single designated area. It has been reported that prisoners who have symptoms of COVID-19 are being placed in the same cells as those who have tested positive for the virus. The fear is that inmates who are symptomatic, but not necessarily infected, will be placed at a dangerously heightened risk of contracting Coronavirus. Whilst measures must be taken to attempt to isolate infected individuals, those with a common cold could be condemned to a much more serious illness and risk of death. Without testing there is no way to know, and to date there are no plans to introduce mass testing in UK prisons.
In subjecting uninfected prisoners to such a heightened risk of contracting a potentially fatal virus, coupled with the likelihood that healthcare will be substandard in comparison to community care, there are concerns that the state is failing to meet its Article 2 obligations.
Article 3: Prohibition of torture and inhuman or degrading treatment
Article 3 of the ECHR prohibits torture, and “inhuman or degrading treatment or punishment”. There are no exceptions or limitations on this right.
The impact of the virus on the prison regime for all prisoners has been drastic. As of 24 March 2020, the MOJ announced that all prison visits were cancelled until further notice and that all prisoners would be confined to their cells other than kitchen staff, cleaners and those performing other key roles. On the ground, prisoners, including children and young offenders, have reported that they are effectively being kept in solitary confinement, spending 23 hours or more alone in their cells with little to no interaction or activities.
The Courts have recognised that segregation poses a significant risk of causing serious psychological harm to prisoners and corresponds with an increase in self-inflicted deaths when compared to the general population. A report compiled by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, outlined evidence that segregation “can have an extremely damaging effect on the mental, somatic and social health of those concerned”, which “increases the longer the measure lasts and the more indeterminate it is”. It considered the maximum period for which solitary confinement should be imposed as a punishment to be 14 days. Whilst the purpose of segregation in this instance is not to reprimand, the damaging psychological effects are incumbent.
We are now approaching the two-week mark since the strict measures have been implemented and it does not appear that they will be lifted any time soon.
Some prisons are providing a single pre-packaged meal a day, instructing prisoners that if they want more to eat they must purchase it from the canteen, whilst other prisoners report having reduced or no access to showers. There have also been claims of a lack of cleaning products and disinfectants as well as basic hot water in cells, with further reports that prisoners are being required to defecate into pots where there is no in-cell toilet. Not only are the prisoners enduring the stress of solitary confinement, they face a time of heightened anxiety, reduced staffing, and minimal human contact.
The compounding factors described above mean those in detention are placed in a truly precarious position as regards both their physical and mental health. In the year ending December 2019, there were a record number of self-harm incidents, with 61,461 reported cases, and 300 deaths in prison custody. Whilst the immediate threat of COVID-19 must be addressed, the long-term mental health impacts of measures taken must not be overlooked.
A constant eye must be kept to the conditions that prisoners are being subjected to. A strict quarantine, preventing basic standards of personal hygiene and subjecting prisoners to degrading measures alongside an indeterminate span of time in segregation, are likely to have a long-lasting, damaging impact. Whilst the threshold of what constitutes inhuman and degrading treatment is high for the purposes of engaging Article 3, it is not inconceivable that the standard could be met should these conditions endure. Only necessary and proportionate restrictions should be instigated and a constant review must take place as to what is required as the epidemic progresses.
What is being done?
Some welcome measures are now being implemented by the government.
In attempts to curtail the extremely harmful effects of prolonged solitary confinement and the suspension of all prison visits, the MOJ have revealed that 900 Secure phone handsets will be given to prisoners across 55 jails, enabling prisoners to speak to a small number of pre-authorised contacts.
On 4 April the government announced its intention to grant early release to certain low-risk prisoners. Prisoners who pass the stringent criteria for release will be subject to strict conditions, and will be electronically monitored, including with GPS tags, to enforce the requirement to stay at home. They can be immediately recalled to prison for breaching these conditions or committing further offences.
It is clear that the government will hold the protection of the public, in addition to upholding confidence in the criminal justice system, as paramount considerations in developing their response. No high-risk offenders, including those convicted of violent or sexual offences, anyone of national security concern or a danger to children, will be considered for release, nor any prisoners who have not served at least half their custodial term. Additionally, no offender convicted of COVID-19 related offences, including coughing at emergency workers or stealing personal protective equipment, will be eligible.
The move mirrors similar measures that have been implemented overseas, including France, the United States, Australia, Germany and Canada.
This follows the decision to grant temporary release to pregnant women and prisoners in Mother and Baby Units who do not pose a high risk to the public. Prisoners will be placed on temporary licence once they pass a risk assessment and suitable accommodation for the women has been identified.
In addition, the Ministry of Justice states that it is working to identify publicly owned sites that could serve as temporary prison accommodation to ease pressure on the permanent estate. We are also told that steps are being taken to expand the use of electronic monitoring to facilitate the safe release of more low-risk prisoners who were due to leave jail in the next two months regardless. They will be released in stages on temporary licence.
The government states that the releases will be phased over time. One or two reports of compassionate releases of disabled prisoners have been heard but there will be many more vulnerable prisoners still in prison. Implementing these measures as quickly as possible are vital if they are to have any impact on reducing the risk faced by prisoners and staff.
Further action required
The Prison Governors’ Association, summarising advice laid out by Public Health England and the Prison Service (HMPPS), have stated that the release of 4,000 prisoners will not be sufficient to address the issues currently faced by the prison system. The PGA writes in its submissions, “Our members have reported to the PGA National Executive Committee that Public Health England and HMPPS require a reduction of 15,000 prisoners in order to truly safeguard prisoners and staff.”
In response to the ongoing risk to prisoners, organisations including INQUEST, the Howard League and Prison Reform Trust continue to lobby the government to take further measures to protect the prison population. Recommendations include:
- Relieving the pressures within prison system by closing child prisons as soon as practicable.
- Suspending all prison transfers (except in exceptional circumstances)
- The release of elderly prisoners who do not pose a serious risk to the public. The rise in ageing prison population, longer sentencing, and delayed parole, with the heightened risk associated with old age mean that special consideration for these prisoners should be considered.
- Enhanced consideration should be given to resorting to non-custodial measures at all stages of the administration of criminal justice, including at the pre-trial, trial and sentencing as well as post-sentencing stages. Priority should be given to non-custodial measures for alleged offenders and prisoners with low-risk profiles and caring responsibilities.
It is clear the government will need to consider risk to the public when seeking to implement any measures, but further urgent and immediate steps must be taken to prevent avoidable deaths. For those who will not be considered for release, the government must consider how best to keep prisoners safe, whilst seeking to improve the difficult conditions that many currently find themselves in.
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