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As COVID-19 cases surge to over 130,000 UK-wide, many argue that the government has not done enough to minimise the spread of the virus. The government’s treatment of the virus has been described as a ‘national scandal’ by Richard Horton, Editor-in-Chief of the Lancet medical journal, while others point to the penal system as an example of government failures.
Prisons across the UK have been described by the likes of MP Robert Neill as a “potential hotbed for viral transmission,” who cited their “dirty” conditions, overcrowding and understaffing as a serious issue.
The UK government has proposed the Coronavirus Restricted Temporary Release scheme (CRTR), and additional cells to combat the spread. However, this is yet to materialise leaving many critics worried that it may be too little, too late.
According to a report by Jacqueline Beard, since 2002 the number of prisoners aged 50 and over has risen from 7% to 16%. On top of this, she found living conditions to be of a poor standard, with over 60% of prison establishments crowded. Further to this, already 15% of the prison population suffer from respiratory conditions.
As a result, prisoners are at a substantially higher risk of catching the virus than the general population and living conditions may result in what Professor Richard Coker, of the London School of Hygiene and Tropical Medicine, calls a “cluster amplification”.
Since lockdown measures have been put in place, the situation has only worsened. While in-cell conditions are already unacceptable, prisoners are now confined to their cells for 23 hours a day. Moreover, prisoners have reported reduced access to showers, or no access at all, and no access to cleaning products or hot water. Shockingly, at HMP Coldingley in Surrey, prisoners have been forced to urinate and defecate in plastic bags and bottles, or throw waste out of their windows.
Subjecting prisoners to these inhumane conditions is not only morally and ethically abhorrent, but also an infringement of their human rights. Specifically, these conditions violate Article 2 (the Right to Life) and Article 3 (Prohibition of Torture and Inhumane or Degrading Treatment) of the European Convention on Human Rights (ECHR).
Many have deemed this treatment as symptomatic of the way prisoners are perceived. Believed to be ‘violent criminals’ they are subsequently dehumanised by the penal system which treats them “like animals”. In 2018, it was found that in fact 69% of prisoners were convicted of a non-violent crime.
As a result of their treatment and the living conditions they are forced to endure, many have argued that the government has effectively issued a ‘death sentence’ to prisoners with underlying health issues. It has also been reported that the prison system could potentially see deaths on an “unprecedented scale” as a result of the virus.
In an effort to contain the virus, on 4 April 2020, the government announced the Coronavirus Restricted Temporary Release Scheme (CRTR), through which, it was hoped 4,000 prisoners would receive early release. To be considered for the scheme, prisoners must already be eligible for temporary release under Prison Rule 9. Those who are determined to be a security risk are not eligible.
However, the Prison Governors Association (PGA) has said 4,000 is not enough: “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”.
As of Tuesday 14 April, only 18 prisoners had been released. The scheme has also now been postponed after 6 inmates were mistakenly released as a result of an administrative error. The Ministry of Justice also promised to create 2000 temporary prison cells to reduce the number of prisoners that needed to be released. These are yet to come into fruition.
On 20 April 2020 there were 81,347 prisoners in the UK, 280 of these prisoners have tested positive for COVID-19, with 16 prisoners reported dead, however many have not been tested.
Specialists like Richard Coker, Epidemiologist and Emeritus Professor of Public Health at the London School of Hygiene and Tropical Medicine have described prisons as “epidemiological pumps”. Subsequently, many are concerned about the consequences that the government’s inaction surrounding the virus will have.
Speaking about the government’s inaction, the Shadow Justice Secretary said:“Prisons are overcrowded, with thousands of cells containing more than one inmate, against the advice of Public Health England. If the Ministry of Justice does not take sufficient steps to move towards single cell occupancy, it is not only inmates and prison officers who will be put at risk. NHS hospitals will become overwhelmed and the virus will spread rapidly from prisons across the wider public”.
The UK is falling behind in terms of its response, with other countries in Europe employing more rigorous and effective measures. Over the last few weeks, Italy has reduced its prison population by 6,000, meanwhile France has seen a reduction of 10,000. The action that the UK has taken has ultimately been determined as both “too slow and too limited”.
As Richard Garside, Director of the Centre for Crime and Justice Studies accurately stated: “Inaction by the government on Covid-19 in UK prisons is putting not just prisoners’ lives at risk but also prison staff, and the general public”.
On 17 April, prison charities The Howard League for Penal Reform and The Prison Reform Trust proposed an application for a judicial review against the Justice Secretary over his lack of action.
In a letter to Robert Buckland written by the solicitors Bhatt Murphy on behalf of the two charities, the government’s response to the crisis was called ‘unlawful’. The charities outline this is because the Minister has not performed his duty under common law and human rights law, to protect life and health. Additionally, the fact that he has not made a substantial cut to the prison population, is determined to be both irrational, and a “breach of legitimate expectation” considering he has the powers to do so under Prison Rule 9A(1) .
The charities had previously written to the Justice Secretary outlining their concerns about the “unprecedented risk to life” if the government did not decide to release a “substantial” amount of prisoners. The government responded by saying that a “number of options” were “under consideration” which included “potential releases” of prisoners.
The charities sent three further letters to the Secretary of State. The third letter, sent on 1 April stressed the need for urgent action, whereby they outlined the need for “immediate further early release of prisoners”. The charities also urged the Secretary of State that the window of opportunity is closing” and that “delay is now likely to be lethal for prisoners”. Again, on 8 April, in a letter the charities urged Ministers once again to act in order to prevent “an intolerable human cost in terms of the lives of both staff and prisoners”. No response from the government has been made to the final letter.
Speaking about the government’s failure to deliver effective measures Frances Crook, Chief Executive of the Howard League for Penal Reform, said: “The Secretary of State has accepted publicly that the number of people in prison must be reduced significantly in order to save lives. However, this has not – and cannot – be achieved by the measures that the government currently has in place”.
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