Are “squalid” prison conditions and the response to the Covid-19 pandemic breaching human rights?
6 July 2020
The latest reports of HM Chief Inspector of Prisons and the Parliamentary Joint Committee on Human Rights lay bare the conditions in some British prisons.
Some of the language that is used to describe living conditions in the Chief Inspector’s report is shocking – including “appalling”, “squalid”, “intolerable”, “extremely squalid” and beset with “vermin and filth”.
The Chief Inspector’s view is that such conditions “should not feature in 21st century jails”. This conclusion was expressed prior to the further impact caused by the Covid-19 pandemic.
Since the pandemic, the Government has introduced measures to address the risk of contagion including a blanket ban on visits since around 24th March which has still not been revisited despite the Covid-19 threat level having been reduced to level 3 on 19th June.
The conclusion of the Parliamentary Joint Committee on Human Rights is that the Government’s response and the deficiencies in the measures to mitigate the impact of this “have put at risk the right to family life of up to an estimated 17,000 children of mothers in prison”.
In the view of this author, the evidence indicates that in several respects the UK may well be in breach of vital protections for prisoners and their families under Articles 3 and 8 of the European Convention on Human Rights (ECHR). This extended piece will examine these issues in detail.
Legal Background
It has been emphasized by the European Court of Human Rights that any suffering or humiliation caused to a prisoner must go well beyond what is inevitably connected with detention. Yet a government must still organize its prison system in a way which ensures that there are minimum standards to protect the basic dignity of prisoners under Article 3 and Article 8[1].
In terms of standards of proper accommodation, each case will depend on its own factors, but extreme lack of space may be sufficient in itself or in combination with other factors to constitute “degrading” treatment[2].
Access to properly equipped and hygienic sanitary facilities is also of great importance in maintaining prisoners’ sense of dignity. Where, for example, a prisoner has been able to shower no more than once every 10 days, or for 15-20 minutes once per week, it is considered that this will be manifestly insufficient for dignified personal hygiene[3]. It is also vital that cells reach minimum levels of sanitation[4].
The chance to take part in some exercise outside a cell is also relevant. If a prisoner is only permitted to be outside for one hour per day, this will be relevant in terms of whether their conditions of detention are sufficiently humane overall[5].
Access to family while in prison is protected under Article 8[6]. In this regard, it is important to note that the rights of not just the prisoner but also his or her family members must be considered, which will include assessment of the impact on the welfare of children.
Measures controlling or limiting access to visits may be lawful, but these must be reasonably necessary in order to achieve a legitimate aim in the particular circumstances, with the state also being under an obligation to “enable and assist a detainee in maintaining contact with his [or her] close family”[7]. It is also recognised that family visits provide an important rehabilitative function in preparing a prisoner for return to society[8]. Therefore, the imposition of a blanket ban on visits may constitute a breach of Article 8[9].
The Annual Report of the Chief Inspector
Prior to the impact of the Covid-19 pandemic, the 124-page Chief Inspector’s Annual Report 2018-19 looked in detail at the state of prisons and the treatment of prisoners. It opens by stating that the “recent history of many prisons in England and Wales has been deeply troubling”. Problems are noted to include “drugs, violence, appalling living conditions and lack of access to meaningful rehabilitative activity” (p. 7).
The inspections of HMP Exeter, HMP Birmingham and HMP Bedford in particular “showed dramatically the need for urgent improvement”. But other prisons also “caused us great concern” (p. 7).
In three key areas of appropriate living conditions, protection for vulnerable prisoners and access to rehabilitative activity, the findings are particularly striking.
Living conditions
The report states that “far too many prisoners still ensure very poor and overcrowded living conditions”. More starkly, it says that in certain prisons there were “squalid conditions”, including “broken windows, unscreened lavatories in shared cells, vermin and filth” (p. 11). Some conditions are even said to be “extremely squalid” (p. 27).
Conditions at HMP Exeter and HMP Chelmsford are described as “grim” (p. 28) and at HMP Bedford, the report says that:
The prison was struggling with infestations of insects and vermin. A sign on one wing read, ‘Please ensure doors remain shut to prevent rats entering the wing!!!’… Despite recently engaging professional pest control services, rats, pigeons and cockroaches were still everywhere. (p. 28)
At HMP Birmingham, the report says that “[w]e regularly saw … prisoners expected to endure intolerable living conditions” and that:
[Some] particularly vulnerable prisoners were living in squalid cells which were not fit for habitation. One prisoner … was living in a filthy, flooded cell. The blood of another prisoner, who had self-harmed two days previously, had not been cleaned from the cell floor… Rubbish was left lying around in bags and there were problems with fleas, cockroaches and rodents. (p. 28)
The report concludes that some prison living conditions are so “appalling” that they “should not feature in 21st century jails” (p. 11).
Vulnerable prisoners
The report says that there were 83 self-inflicted deaths in male prisons in England and Wales over the last year (p. 25) This is an increase of “nearly one-fifth on the previous year” (p. 7). Furthermore, “levels of self-harm were disturbingly high” and had increased in “two-thirds of the prisons we inspected” (p. 11). There were over 45,000 reported incidents of self-harm in 2018, an increase of 25% since 2017 (p. 25). The report notes that in respect of safety, 8 prisons were “poor” and 14 were “not sufficiently good”. Half of the previous recommendations made had not been implemented (p. 22).
In some cases, there was said to be “an inexcusable lack of supervision or management intervention to ensure men at risk of self-harm were held safely” (p. 8). Less than half of the vulnerable prisoners who received crisis support said that they felt “cared for” (p. 25). But the figure for this was considerably lower at HMP Bedford (p. 9).
In category B and C men’s prisons (which account for the numerical bulk of prisoners) “acute” staff shortages caused “often severe” risks to both prisoners and staff (p. 8). It was noted that “levels of all types of violence had soared” and that over half of prisoners surveyed overall felt unsafe, with nearly half having suffered violence but only a third saying that they would report it (pp. 8, 23). Particular concerns were raised regarding cell call bells being “routinely ignored” at HMP Exeter (even when staff were not busy) and failures to address bullying at HMP Birmingham (pp. 9, 26, 28).
Rehabilitative programmes
The report says that in “only a third of adult male prisons that we inspected” was purposeful activity (including education, work and training) “judged to be good or reasonably good” (p. 11). As a result of “chronic” staff shortages and levels of violence, prisoners were “often” unable to attend education and training and were locked in their cells for “inordinate lengths of time” (pp. 12, 36). Thirty-seven per cent of prisoners in local prisons surveyed said they spent fewer than two hours a day out of their cell (p. 34). Unemployment at several prisons was noted to be high (pp. 12, 35-36).
The impact of the Covid-19 pandemic
Some of the effects of the Government’s response to the Covid-19 pandemic in relation to prisons have now been assessed in two important reports. The report of the Parliamentary Joint Committee on Human Rights, Human Rights and the Government’s response to COVID-19: children whose mothers are in prison, published on 3rd July, assesses some of the impacts on family life. The Chief Inspector’s report into local prisons, published on 28th April, also touches on family life but also examines the effect on living conditions.
The report of the Parliamentary Joint Committee on Human Rights
The 21-page report of the Parliamentary Joint Committee on Human Rights examines in detail the effect of the Government’s response to the pandemic on the relationships between prisoners and their families.
It notes that in response to the pandemic, prison authorities have imposed a blanket ban on prison visits since March. No date has been fixed for these to be resumed. Although the evidence of the Minister of State, Lucy Frazer MP, was that their resumption would be a priority once the Covid-19 alert level was reduced to 3, the Government does not seem to have provided any further update on visits since the necessary reduction in the alert level was made on 19th June (p. 6).
In order to mitigate the impact of the curtailment of all visits, the Government stated that 900 extra telephone handsets had been provided to prisoners without in-cell telephony, that prisoners’ phone credit had increased by £5 a week (though it should be noted also that prisoners are also likely to be earning less in the present circumstances where increased restrictions reduce the hours they can work), and that the use of video technology was to be “expedited”.
But none of the children whom the Committee heard evidence from or about had yet been able to benefit from a virtual visit with their mother. The Committee also found that telephone calls were “rarely a good substitute for visits” (p. 7). For example, a 10-year-old gave evidence that:
Mum phones every day. I cannot explain how it makes me feel. It makes me feel sad and confused. (p. 7)
A grandmother stated that her five grandchildren were being affected “in a bad way”, with the youngest (aged six) frequently crying and suffering from nightmares. Another stated that the ongoing separation of her daughter from her baby son was “harrowing and distressing” (p. 6).
The report states that the curtailment of all visits and the deficiencies in the measures to mitigate the impact of this “have put at risk the right to family life of up to an estimated 17,000 children of mothers in prison” (p. 3). It concludes that:
The current lack of meaningful contact between mothers in prison and their dependent children due to the suspension of visits to prison risks breaching both groups’ right to private and family life. The Government must not impose blanket restrictions on visiting rights. In order to comply with Article 8 ECHR, they must ensure that any restriction on visiting rights is necessary and proportionate in each individual case. Children must be allowed to visit their mothers in prison on a socially distanced basis, where it is safe for them to do so. (p. 15)
The report also identifies other significant problems. It notes that despite the courts being under a duty to collect information relating to dependents and to take this into account when sentencing, the Minister was “unable to tell us how many children were separated from their mother by their mother’s imprisonment” and that there was an “absence of an action plan for collecting this data [which] is both disappointing and concerning”.
As such, there is a “complete lack of reliable quantitative data on the number of mothers in prison, the number of children whose mothers are in prison and the number of women who are pregnant and give birth in prison”, which significantly affects the authorities’ ability to take family life into account (pp. 3-4, 10, 12).
The report recommends that data be collected and published and that the recommendations in the Committee’s 2019 report to impose a mandatory requirement that all women entering prison be asked whether they have dependent children and their ages and an annual census to establish this information be implemented “as a matter of urgency” (p. 15).
Moreover, despite indications from the Government that early temporary release measures would be implemented at the outset of the pandemic, “[o]nly a limited number of prisoners are eligible for release, and only a limited number of those have been released”. Notwithstanding the measures, as of 29th June only 23 women who are pregnant or residing in Mother and Baby Units, less than five medically vulnerable women and seven women within two months of the end of their sentences have been temporarily released (p. 3, 10).
The report urges the Government to“immediately and as announced temporarily release from prison all remaining pregnant women and those in Mother and Baby Units, and all mothers with dependent children and who are within two months of their release date who have been appropriately risk assessed” (p. 15).
Finally, the report notes that evidence was heard of “an instance where a prisoner was not able to join the funeral of a close family member either in person or remotely”. It recommends that in order to comply with the right to respect for private and family life, where in-person attendance is not possible “[a]ll prisoners, both men and women, should be able to attend funerals virtually where a close family member has died” (pp. 14-16).
The Chair, Harriet Harman MP, gave the following comment:
One of the fundamental human rights is the right to family life. It is children for whom this right is most important. Yet when the government banned children from visiting their mother in prison they trampled over that right.
They can put that right now by early release for those mothers who can safely go back home with their children and re-instating visits for the rest. COVID-19 causes lasting injury. But so does separating a child from its mother. The way to protect public health is not to damage children but to release low risk mothers and reinstate socially distanced visits.
The Chief Inspector’s report into local prisons
The Chief Inspector’s 17-page report into local prisons dated 28th April examines the response to the Covid-19 pandemic at HMP Wandsworth, HMP Elmley and HMP Altcourse.
It should be noted that none of these three prisons were among those said to be in the worst state in the 2018-19 Annual Report. The findings echo in some respects the conclusions of the Parliamentary Joint Committee’s report, but also identify other significant problems.
In order to minimize the spread of the virus, the “vast majority [of prisoners] were locked up for nearly the whole day with usually no more than an hour out of their cells”.
But the inspectors also “found some examples of even greater restrictions” (p. 7). It was noted that in certain cases “symptomatic prisoners had been isolated in their cells without any opportunity to come out for a shower or exercise for up to 14 days”, with over 100 prisoners going through this process at HMP Wandsworth (pp. 7, 12).
There were other cases of prisoners having to choose whether to use their 30 minutes for exercise or for a shower and some shower rooms being too dilapidated to be cleaned to a safe standard, with soap not always being available to all prisoners in their cells (pp. 11, 14).
Moreover, this author would suggest that if a prisoner at another prison in similar circumstances lacked an in-cell telephone and was dependent on a wing telephone, they would also have to weigh up whether to use this very limited time outside their cell to contact their family, or, if appropriate, to access support from prison staff.
In a finding which would be echoed by the Parliamentary Joint Committee, this report also found that “[v]ery few prisoners had been released through the early release scheme” and the population of the prisons “had not been significantly reduced” (p. 7). This meant that all three prisons inspected “were still overcrowded”, with some cells having three occupants (p. 10).
As to access to their families, the report’s findings also chime with those of the Parliamentary Joint Committee. The report states that the suspension of social visits has had a “dramatic impact” on prisoners. Whilst the loss of visits was addressed to a degree by the availability of in-cell phones in all three prisons, the report finds that there was a “significant missed opportunity” to implement facilities for video calling (p. 15).
Although not discussed in the report, it seems likely that the “dramatic impact” on prisoners may have significant effects on morale, wellbeing and perhaps safety. It is likely that this would interact with underlying staffing issues and problems with bullying identified by the 2018-19 Annual Report.
Comment
The findings of the independent Chief Inspector and the Parliamentary Joint Committee are striking. Some of the conditions described in the reports even prior to the pandemic appear to reach the high threshold for inhuman and degrading treatment under Article 3 or a disproportionate breach of the right to private and family life under Article 8.
Moreover, the response to the Covid-19 pandemic has had a significant further effect on living standards. Further, the blanket ban imposed on visits and the deficiencies in mitigating measures have jeopardised the family life shared between prisoners and their loved ones, especially where there has been a heavy impact on young children or those with special needs.
There is now a real prospect that conditions have become so poor and the continuation of family life has been so curtailed that the UK is failing in its obligations under Articles 3 and 8 of the ECHR.
The Annual Report expresses pessimism at the prospects of significant improvement in living conditions (pp. 8-10). Although the Parliamentary Joint Committee makes urgent recommendations, prison visits have not yet been resumed. These issues therefore seem unlikely to go away soon.
Jonathan Metzer is a barrister at 1 Crown Office Row and commissioning editor of the UK Human Rights Blog. He tweets @JonathanMetzer. He is grateful to Manon Roberts for consideration and comment on earlier drafts of this article. The views expressed in this article are those of the author alone.
[1] See, e.g., Helhal v France (2015), para 63; Mursic v Croatia [GC] (2016), para 99; Neshkov and Others v Bulgaria (2015), para 229
[2] Orchowski v Poland (2009), para 122; Ananyev v Russia (2012), para 143
[3] Ananyev v Russia (2012), paras 156 and 158
[4] Ananyev, para 159; Neshkov and Others v Bulgaria (2015), para 243
[5] See, e.g., Gladkiy v Russia (2010), para 69; Tunis v Estonia (2013), para 46
[6] Khoroshenko v Russia [GC], 2015, para 110
[7] Horych v Poland, 2012, para 123; see also: Enea v Italy [GC], 2009, paras 125-131; Khoroshenko v Russia [GC], 2015, para 124; Trosin v Ukraine, 2012, paras 42-44
[8] Khoroshenko, paras 121-122
[9] Khoroshenko, para 126; see also Troisin
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