Written evidence from Liberty

About Liberty

Liberty (The National Council for Civil Liberties) is one of the UK’s leading civil liberties and human rights organisations. Liberty works to promote human rights and protect civil liberties through a combination of test case litigation, lobbying, campaigning and research.

Submission

1. Liberty welcomes the opportunity to submit written evidence to the Justice Committee’s inquiry into prisons. We seek to draw on our experience as a human rights campaigning organisation in providing our response.
2. We outline below suggestions for reform to bring the UK’s system into line with countries which operate significantly more successful prison regimes. We make submissions as to the fundamentals of any just and effective prison system, and cover several other issues of serious concern, such as the state of legal aid for prisoners challenging the conditions of their detention and the detention of migrants and those seeking asylum in prisons.

Recommendation 1: Focus on rehabilitation

3. The two-year reconviction rate in the UK is around 53% – significantly higher than that of many other European countries. Countries which consistently achieve the lowest recidivism rates and have the best offender reintegration record are those which focus on rehabilitation. Norway, for example, emphasises open over closed prisons, and even in high-security branches of the prison system each prisoner has a ‘contact officer’ dedicated to ensuring both security within the prison and reintegration on release.[1] Norway’s two-year reconviction rate is more than half that of the UK, at 20%.[2] The average reoffending rate for all Scandinavian countries is around 27%. Similar measures are reported in German and Dutch prisons, with prison officers trained to provide support and rehabilitation rather than just maintain order.[3] More open regimes are promoted, with greater provision of home leave to speed reintegration.[4]
4. Whilst comparison of national recidivism rates poses difficulties, some conclusions can be drawn. At the very least, there is no perceptible connection between more punitive prison regimes and lower reoffending rates. In fact, the data suggests the opposite. For example, the USA’s reoffending rate appears to be between 40 and 70% of prisoners released. That of Norway is only 20-30%.[5] In fact, a US Government report found in 2007 that harsher prison regimes have the opposite effects to those intended – they actually increase reoffending.[6]
5. Norway’s prison system is famous for not only its more open and humane character but also its world-beating rates of reintegration and recidivism. Even its highest-security prisons offer “education, training and skill-building programmes”, with inmates reported to live in “small "pod" communities within the prison, limiting the spread of the corrosive criminal prison subculture that dominates traditionally designed prisons”.[7] At its maximum-security Halden prison, the treatment of prisoners is said to be “wholly focused on helping to prepare them for a life after they get out.”[8] Bastoy Island, in which serious offenders form a semi-open community in which education and employment is pursued, has reportedly the lowest reoffending rate across all Europe – a mere 16%.[9]
6. Liberty urges the Justice Committee to inquire into real rehabilitative reforms for the UK’s prisons – in view of the compelling evidence that prisons must rehabilitate if they are to restore and reform.

Recommendation 2: Significantly reduce the UK’s unprecedented prison population

7. The prison population of England and Wales is around 85,843, out of a total population of 58 million. As a proportion of population, the UK detains more than twice the number of prisoners held by countries whose prison regimes are far more effective.[10] Indeed, the UK has the highest levels of incarceration among all Western European countries, and 11th highest in Europe as a whole.[11] And yet it has more or less doubled the numbers of individuals in prison over the last two decades. Whilst crime rates continue to go down, the UK’s crime rates remain at 11th highest in all of Europe, and third-highest in Western Europe.[12] The UK’s trend of vastly increased prison populations has led to widespread overcrowding in prisons – afflicting over 60% of all prisons, with each overcrowded prison holding 9,700 more individuals than their design permits.[13]
8. The evidence suggests that simply locking prisoners bears no correlation with reduced crime rates,[14] having no perceptible deterrent effect and may even cause further reoffending.[15] Indeed, the National Audit Office noted in a study – even when considering countries in which crime rates have gone down whilst prison populations have increased – “the lack of evidence for a clear relationship between the use of prison and changes in crime levels”.[16] Overall, countries with the best prison records, such as Norway, have the lowest prisoner levels as a proportion of total population.[17]
9. In recognition of this, more and more countries are slashing their prison numbers. Along with countries such as Finland and Germany, prison numbers are falling rapidly in the Netherlands, with several prisons having been closed or facing closure. With continuously falling crime rates, between 2004 and 2012, the total prison population in the Netherlands fell from 20,000 to less than 15,000.[18] And as the example from Norway demonstrates, significantly more can be spent on prisoner rehabilitation if the numbers of those detained is reduced – whilst either maintaining existing expenditure or even decreasing it.
10. The evidence demonstrates that a targeted approach in which prison numbers are reduced and improved rehabilitative measures are focused on those detained brings significant benefits. Liberty urges the Justice Committee to look into these findings and explore the UK’s options for bringing the unprecedented heights of the current prison population down.

Recommendation 3: Uphold equal treatment to reduce reoffending

11. The UK is faced with a poor record of racial disparity in prisons. Non-white individuals are represented in the prison population to a shockingly disproportionate extent. Despite black men and women making up only 3% of the general population in England and Wales, they make up 12% of the prison population. In other words, an individual who is black is three times as likely to be imprisoned in England and Wales than a white person.[19] Much the same is true of Muslim prisoners, who amount to around 14% of the prison population, whilst accounting for around 4% of the UK’s population as a whole.[20] Overall, this amounts to a greater disproportionality than that found in the US prison system, notorious for the disparity between white and black prisoners.
12. The UK’s record as to transgender male and female prisoners is similarly poor. As the House of Commons Women and Equalities Committee recently found, this takes place within a context of already severe disadvantage and discrimination, with “[a]bout half of young trans people and a third of trans adults [attempting] suicide.”[21] Indeed, the deaths of Vikki Thompson[22] and Joanne Latham[23] are appalling examples of the treatment of transgender men and women in the UK’s prisons.
13. As the Committee also found, recent prison guidance as to the better treatment of transgender prisoners “all too often…was simply being ignored” – something the Committee attributed to “a lack of understanding, reflecting unacceptable and discriminatory attitudes towards trans people in society”.[24] Indeed, Bent Bars – an organisation that campaigns for the rights of LGBT prisoners in the UK – has found that between 2009 and 2016 almost all transgender women were held in male prisons. This is despite prison guidance which provides that transgender women may only be refused a place in a women’s’ prison “on security grounds”.[25]
14. Moreover, the guidance wrongly relies on gender recognition certificates to determine a person’s gender identity – something which many prisoners will find difficult to acquire. It is not difficult to identify trans men and women, just as it is not difficult to identity non-trans men and women in the prison estate. The guidance must be changed to allow trans men and women to be located where their gender identity requires, regardless of whether they have acquired a certificate.
15. The evidence suggests that prison systems with better records of equal treatment have significantly better records as to rehabilitation and reoffending. The contrast between the US and Norwegian systems is stark – and should be instructive for the UK’s future direction. In the US, only 12-13% of the population is black, and yet they amount to 35% of all prisoners.[26] Compare Norway, where its prison population matches the country’s ethnic diversity.[27] Indeed, Norway’s high-security Halden prison evidences a good record of prisoner rehabilitation and appears to reflect the racial and ethnic background of Norwegian society – since around 30% of its inmates are from Eastern Europe, Africa, and the Middle East.[28]
16. Liberty urges the Justice Committee to examine the evidence as to rehabilitation and equal treatment and look to crucial changes necessary in UK prisons to ensure their effectiveness.

Recommendation 4: Make prisons safe for rehabilitation and reform

17. Rehabilitation cannot take place unless prisons are safe. There is compelling evidence to suggest that England and Wales’ prisons are unsafe, both for prisoners and staff. Between 2005 and 2015, the proportion of prisoners who have suffered an assault, for example, has more than doubled. Just last year, there were over 20,500 incidents of assault in prisons in England and Wales. And prison violence overall has recently been found by the Prisons and Probation Ombudsman to be at a “wholly unacceptable level”.[29] The Justice Committee in 2015 published its report into prison planning and policies and found that levels of safety in prisons have significantly diminished when measured against all criteria.[30]
18. Even worse, across the same period, the proportion of prisoners self-harming has increased by 25% – with the proportion of male prisoners harming themselves almost doubling. Overall, the number of individual prisoners self-harming has increased by 62%.[31]
19. Liberty urges the Justice Committee to inquire into the measures urgently needed to transform the UK’s prisons into safe places of real reform.

Recommendation 5: Restore legal aid for prisoners

20. The Criminal Legal Aid (General) (Amendment) Regulations 2013 removed from the scope of legal aid all matters relating to a person’s treatment in prison, issues relating to sentencing, disciplinary matters, and reviews by the Parole Board except where it has the power to order a prisoner’s release.[32] As Liberty stated at the time, plans to remove prison law from the scope of legal aid undermines rehabilitation and allows the abuses of vulnerable prisoners, including those with serious disabilities, to go unchecked.[33]
21. The Government itself acknowledged that legal aid cuts may have an impact on such individuals, but asserted that the screening carried out by the National Offender Management Service (NOMS) will be sufficient to ensure that reasonable adjustments are made. Even if screening of prisoners is carried out, removal of legal aid has left individuals unable to properly challenge that assessment, or the treatment that is actually provided to them as a result. A failure to make appropriate adjustments for prisoners with learning difficulties or other disabilities, or mental health issues, for example, risks breaching human rights protections, including putting lives at risk.
22. Rehabilitation is profoundly threatened if prisoners are not treated properly. Moreover, many cases will involve issues crucial for a person’s successful rehabilitation – such as a person’s resettlement licence conditions – and the changes have left individuals unable to properly challenge faulty decision-making in respect of these matters.
23. An internal, administrative complaints system is not an adequate substitute for judicial due process. A complaints system and the Ombudsman cannot properly adjudicate on the rights of individuals, nor on the lawfulness of state action. Their recommendations are not binding on parties as a legal judgment, nor do they have the same powers to award damages or, most importantly, to require remedial action. The Ombudsman is not sufficiently independent, lack legal training, and do not have expertise in dealing with cases involving vulnerable prisoners, who may have mental health problems or learning difficulties requiring special assistance.
24. Moreover, the prisons Ombudsman was already subject to systemic delays before the legal aid changes were made.[34] In the year following the cuts to prison legal aid, experts in prison law attest to the dire conditions for those seeking to complain about their treatment in prisons or ensure accountability for decisions made by prison authorities. The Howard League and the Prisoners’ Advice Service saw a 45 per cent increase in calls to its advice line, with its legal team “overwhelmed with requests from young people with nowhere else to turn”.[35] This is just was predicted before the Regulations came into force by, for example, the Joint Committee on Human Rights.[36]
25. Legal aid helps to ensure proper treatment of prisoners, improved conditions in prisons, and better prospects for reform. Liberty urges the Justice Committee to examine the parlous state of access to justice for prisoners, and the dire need for a restoration of legal aid.

Recommendation 6: Finish the reform of indeterminate sentences under the ‘imprisonment for public protection’ regime

26. In 2005, sentences of imprisonment for public protection were introduced by the then government – allowing for the indefinite detention of those who could not demonstrate that they no longer posed a risk to society. Anyone convicted of certain offences warranting two years or more in prison served a designated portion of their sentence but would be released only if they could demonstrate to the Parole Board that they were no longer dangerous. With no minimum threshold for the determinate portion of the sentence, prisoners have been sentenced to prison for mere months – given the relatively low seriousness of the offence – only to find themselves detained for far longer as a result of the indeterminate sentence imposed thereafter.
27. The problems with these sentences are myriad, and Liberty has long campaigned to abolish them. The sentences required courts to predict future risk, rather than assess past offending, and created an indefinite – effectively, a life – sentence for offences which might otherwise have warranted a tariff of two years in prison. Liberty fully supports the duty on Government to protect the public from harm – in fact, the Human Rights Act imposes duties on the authorities to protect individuals from violence at the hands of criminals. Nonetheless, indeterminate sentences have been proven to be dishonest and discredited, undermining public understanding of the sentencing regime and unnecessarily inflating prison numbers.
28. IPP sentences undermine the important principle that a person should be sentenced only in respect of matters proven before the court. Indefinite legal limbo undermines rehabilitation by leaving prisoners and their families unable to prepare for release – prisoners cannot undertake education and training courses, nor prepare for their life outside, if they do not know their release dates. Moreover, Liberty has long-standing concerns about the use of preventative incarceration, particularly in circumstances where the individual may find it difficult to prove that he no longer poses a significant risk.
29. Through Liberty’s experience of operating a public advice and information line, our evidence suggests that the IPP scheme was blighted by serious practical injustices and inefficiencies. Indeed, the all-important parole hearings – in which a person has the difficult task of proving their eligibility for release – have been beset by problems. It is common for the sentence served by an offender to have far exceeded the minimum tariff imposed without them having been considered for release by the Board. In some cases about which Liberty has been contacted, even where a parole hearing has been scheduled, it is subsequently adjourned – for instance, due to the non-attendance of essential personnel or the absence of a crucial piece of information or evidence. Liberty has received complaints of individuals’ parole hearings being re-scheduled on many occasions, often with lengthy periods until the next planned hearing.
30. As a result of these concerns, a consensus built against indeterminate sentences, leading the previous government to abolish them in respect of anyone convicted on or after 3 December 2012. However, since these reforms were not made retrospective, the UK still has around 4,000 people subject to the indeterminate sentences[37] – despite the previous government describing them as “not defensible”.
31. The backlog is serious, and must be addressed. Indeed, since their introduction, the UK has used indeterminate or life sentences to a far greater extent than elsewhere in Europe – with around 18% of prisoners subject to them in 2009, compared with the 3% average across Europe – with no evidence of any correspondingly greater rate f serious crime in the UK.[38] The figure is now around 19%.
32. One serious criticism of the regime accepted by the last government was the very fact that vastly more individuals were made subject to it than it was thought appropriate even by the scheme’s creators. The Justice Committee itself found that the new sentence was placing “an enormous strain on the prison system and the Parole Board”,[39] a view echoed by Her Majesty’s Chief Inspector of Prisons in 2008[40] and both the Inspectorate of Prisons and the Inspectorate of Probation in 2010.[41] All found that too few individuals were being released, and too many are going longer periods without any review by the Parole Board.
33. In 2012, around 6,000 people were subject to these sentences, and it is anticipated that, without real change, it will take 9 years to clear the backlog.[42] The severe problems with the old system have not gone away. The National Audit Office, for example, in 2013 found that such prisoners continued to face real problems in addressing their own rehabilitation due to the indeterminate nature of their sentence.[43]
34. With 4,000 people still in prison under the sentence this year, it is wholly wrong to continue to detain individuals under a discredited system of sentencing which risks detaining them for significantly longer than is appropriate. The last Justice Secretary, Michael Gove MP told the Chairman of the Justice Committee that he was working with the Parole Board to improve their approach to sentences under historic scheme, including assisting prisoners in demonstrating that they have reduced their level of risk.[44] He later announced that he had asked the Chairman of the Parole Board to create an “improved approached” to prisoners under the old regime.[45] Despite this, no change appears planned. Liberty urges the Justice Committee to hold the Government to its promise of reform, and investigate not just the means by which the review of individuals still subject to these sentences may be improved, but how the backlog of individuals still subject to this discredited regime may be cleared.

Recommendation 7: End immigration detention in prisons

35. Liberty believes that the use of limitless detention – unashamedly for administrative convenience and far removed from the enforcement of removal decisions – represents one of the greatest stains on this country’s human rights record in recent decades. In whatever form, limitless immigration detention is deeply wrong. But holding individuals, who have served their criminal sentences, under immigration powers in prison is wholly inappropriate. Individuals should not be held without limit for administrative convenience, and certainly not in facilities whose purpose is to detain those serving sentences for the commission of crimes.
36. Individuals detained under immigration powers in prison face serious difficulties in accessing legal advice and participating in immigration proceedings. Detainees are unable to effectively communicate with their legal advisors, compile evidence for their cases, or respond to Home Office communications, since they are often subject to prison regimes that prohibit mobile phone use, limit the use of prison telephones, and lack stable internet access. Haphazard prison management repeatedly results in missed hearings or release dates.[46] These findings have been confirmed by Her Majesty’s Inspectorate of Prisons (HMIP).[47]
37. In addition, there are no facilities in prison for determining a person’s unsuitability for detention – due to their mental health, for example, or in view of their being a victim of torture.[48] Prison authorities risk breaching their public law and human rights duties – particularly Article 3, the right against inhuman or degrading treatment, and Article 5, the right against arbitrary imprisonment – if they detain individuals where it is inappropriate to do so.
38. HMIP also found that the use of prisons for immigration detention increases the risk of reoffending, since detainees are unable to build up community ties and undertake education and training.[49] HMIP also found in 2015 that many detainees were experiencing “little change” in their treatment between serving a sentence and detention under immigration powers. Most shockingly, “prison officers are sometimes unaware that they are holding immigration detainees”. At Lincoln prison, in 2013, “six prisoners had been held for more than a year and the longest for more than two years.”[50] In another case, the Inspectorate found that a man had been detained under immigration powers in Wormwood Scrubs for 18 months after completing his sentence.[51]
39. HMIP also reported serious safety concerns for immigration detainees in prison, with significantly greater feelings of victimisation than in immigration removal centres. In fact, detainees in prisons were found to be almost three times as likely to say that they had been victimised by staff.[52]
40. Liberty urges the Justice Committee to inquire into the use of the UK’s prisons for immigration detention, and examine the compelling case for its abolition.

Recommendation 8: Stop relying on private firms to run prisons

41. Between March 2014 and March 2016 the Public Accounts Committee published four detailed reports on public sector contracting and contracting with SMEs and the third sector.[53] These reports highlighted major failures in the public sector contracting regime. Key recommendations included the need to reduce overreliance on a small number of multinational companies and the need for openness and transparency.[54]
42. Liberty has compiled a dossier detailing the record of G4S, one of the small number of private security firms increasingly contracted to administer the UK’s prison estate.[55] Its record in the UK alone is sufficient to give Government pause in contracting out of prison services to private companies. We invite Members to read it.
43. G4S’s record demonstrates the twin problems of the private provision of coercive state powers. Private firms are not democratically accountable, despite being asked to provide services crucial to any well-functioning democracy, such as prisons. They are – as a matter of law – accountable to no one but their shareholders, whose imperatives are private profit, not public service. This in turn drives down standards, as large private firms race to offer their services at the lowest possible cost to themselves. Such behaviour not only represents poor value for money but risks the serious rights abuses for which G4S is notorious.
44. Private provision also leaves the public unable to call firms to account for serious failures in human rights and financial mismanagement. Their often rapid expansion into areas of services delivery – as G4S has done – has left the Government facing a small coterie of near-monopoly providers whose appalling records have been ignored in a drive to contract-out public services at any cost. Indeed, G4S and other companies appear to feel that they can continue committing abuses and failing to improve practices on the understanding that – as described by the House of Commons’ Committee of Public Accounts – they are “too important to fail”.[56]
45. But this tide must turn. In the US, the government’s own experience of poor quality, low-accountability private companies such as G4S led to the US Justice Department’s announcement that it will end its reliance on private providers for the management of federal prisons.[57]
46. Liberty urges the Committee to investigate the use of private providers in the UK’s prisons, and to seriously consider the need to avoid all private firms in delivering the crucial public service of prison management.

Recommendation 9: Safeguard the mental health of those in prison and leaving it

47. Liberty has recently represented the family of Luke Johnson during the inquest into his death after he was released from prison. His case demonstrates crucial gaps in the protection of those with serious mental health problems in prison, and the devastating consequences of failures to make sure they receive continuous care and support on release.
48. Luke Johnson was 34 years old when he died of a heroin overdose after leaving HMP Pentonville. He was an extremely vulnerable man who had struggled with serious mental health problems since he was a teenager. The psychiatrist who treated Luke in prison has suggested that his misuse of drugs and alcohol may in fact have been his way of dealing with the distress caused by his acute mental illness.
49. He had been imprisoned since 12 June 2016 for attempted burglary – the most serious of his past offending, being markedly out of character. He was detained in HMP Pentonville, a prison described by former Justice Secretary and Lord Chancellor Michael Gove – following a report by the Chief Inspector of Prisons – as having “bloodstained walls, piles of rubbish and food waste, increasing levels of violence, and widespread drug-taking”.[58]
50. His time on remand prior to sentencing exhausted the sentence he was ultimately given. He should therefore have been immediately released after the sentence was imposed. Owing to a string of errors, he was wrongfully returned to prison and unlawfully detained there until 11 August. On that date, prison staff realised their mistake, and they turned him out onto the streets abruptly and without any preparation. No one was waiting for him at the gate, his social worker failing to get in contact with him until it was too late.
51. Liberty represented his family at the inquest which, owing to the protections under Article 2 of the Human Rights Act – the right to life –, was able to explore the surrounding circumstances into his death. The evidence showed a number of serious failures in Luke’s case. For example:
1. HMP Pentonville failed to respond to numerous attempts by Luke’s solicitor to tell them they were imprisoning him unlawfully.
2. Luke’s mental state in the days leading up to his release was unstable, leaving him extremely vulnerable.
3. His sudden and unplanned release undermined clinicians’ ability to look after him properly.
4. There was little or no proper handover of his care from the prison’s psychiatric team to his community psychiatric team.
5. The community team failed to follow up with him effectively in the days following his release.
52. The jury found that failures of both HMP Pentonville and the community psychiatric teams, such as the lack of communication between the agencies involved in Luke’s care, contributed to his death. Errors were made in the calculation of Luke’s release date. The handover from the prison mental health team, along with the follow-up from the community mental health team, were “inadequate”. His body was found on 20 August 2016.
53. Luke Johnson’s case is a paradigmatic example of the intersection between mental health and criminal justice, and how it can lead to disaster.
54. Serious problems with the coordination between prison and community mental health services have been known for many years. Resettlement services are often under-resourced and poorly-planned, with prisoners often leaving prison without their medical history going to probation officers or GPs.[59] Preparation for individuals’ release from prison is often reported to be haphazard, even for those at serious risk of harm and without the serious errors made in Luke Johnson’s case.[60] As the Centre for Mental Health reported this year: “Leaving prison remains problematic for people with mental health problems, with little continuity of care. ‘Through the gate’ interventions are widely supported but access to these is limited.”[61] This is despite the fact that this is the most dangerous time for prisoners with mental health issues, being almost 7 times more likely to be commit suicide immediately on release than the general population.[62] Follow up of those with mental health problems is reportedly very limited.[63] These risks are surely also intensified by the extremely poor mental health provision afflicting many prisons.[64]
55. It is also well-known that individuals suffering from drug addiction – released from prison after a period without them – are at a unique risk of accidental death, particularly where they use drugs to self-medicate mental illnesses which are not being properly dealt with. Shockingly, studies suggest that one in 200 adults males who inject substances are likely to die within a fortnight of release from prison.[65]
56. Liberty urges the Justice Committee to investigate the much-needed measures for improving the mental health treatment of those in prison and leaving it, to both improve reoffending and, most importantly, protect the lives of prisoners and former prisoners

Recommendation 10: Implement the recommendations of the Joint Select Committee into the Draft Voting Eligibility (Prisoners) Bill

57. Liberty believes that a core component of prisoner rehabilitation is equal treatment and respect for rights. The blanket and arbitrary exclusion of all prisoners from voting – no matter what their conviction – is both a violation of human rights and an impediment to reform and reintegration. Liberty urges Committee members to read its briefing on prisoners’ voting rights.[66]
58. Liberty urges the Justice Committee to recommend that the Government comply with the recommendations of the Joint Select Committee into the Draft Voting Eligibility (Prisoners) Bill. It suggested extremely modest reform of our prisoner voting laws in favour of mild liberalisation, with the imperative of compliance with the rule of law massively outweighing any perceived dis-benefit in enfranchising a subsection of the UK’s prison population. Modest reform in an area crucial to any successful democracy will remove yet another barrier to real rehabilitation and civic participation for prisoners.             

October 2016