Judicial review: Howard League and Prison Reform Trust issue government with letter before action over its response to coronavirus in prisons

The two leading prison reform groups in the country have today (Friday 17 April) sent a formal letter before claim to the Secretary of State for Justice, Robert Buckland, over the government’s failure to respond effectively to the coronavirus pandemic in prisons.

The letter, from lawyers acting for the Howard League for Penal Reform and the Prison Reform Trust, gives details of a proposed application for judicial review in relation to the Secretary of State’s response “to the obvious need…to substantially reduce the prison population to save lives and avoid a public health catastrophe both within prisons and beyond”.

It goes on to say that, in spite of government announcements including the introduction of an end of custody temporary release scheme, “the rate of releases has been too slow and too limited to make any substantial difference to the prison population and the plans as we understand them are incapable of achieving what the Secretary of State has publicly acknowledged is required”.

Coronavirus is now known to be in more than half of prisons in England and Wales. As of 5pm on Wednesday (15 April), 232 prisoners have tested positive across 60 prisons. Ninety-six prison staff, working in 38 prisons, and seven Prisoner Escort and Custody Services (PECS) staff have also tested positive. The number of confirmed cases has more than doubled in the space of 10 days.

The letter before action suggests a range of actions that the government could take to address the problem, including expanding the scope of the temporary scheme, expediting the consideration of release of pregnant women and mothers, and considering the release of all children in custody in line with international guidance and law.

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.

“The rate of infection is accelerating, and the window of opportunity to protect people is vanishing. Ministers must rise to this challenge and act immediately to avert a public health catastrophe.”

Peter Dawson, Director of the Prison Reform Trust, said: “Everything good about government action in tackling this emergency has been characterised by being early and decisive. On prisons, by contrast, it is a story of too little, too late. The scientific and operational advice couldn’t be clearer – if ministers are serious about following it, they must go much further, and do it now.”

The letter before action follows weeks of urgent correspondence between the two charities and the government about the spread of coronavirus behind bars.

Last week, the charities urged ministers to move further and faster to reduce the prison population and avoid “an intolerable human cost in terms of the lives of both staff and prisoners”. As of Tuesday (14 April), however, only 18 people had been released under the two schemes announced by the government in response to the crisis. Sixteen people – 13 prisoners and three prison officers – are reported to have died.

The Prison Governors’ Association has called for the prison population to be reduced by 15,000. This is understood to be in line with advice provided to the government by public health experts.

The Howard League and Prison Reform Trust handed ministers a report by Professor Richard Coker, Emeritus Professor of Public Health at London School of Hygiene & Tropical Medicine, which sets out the most up-to-date evidence concerning the nature, spread and transmission of coronavirus as it applies to prisons.

The report cites research that estimates fatality rates from the virus of up to 12 per cent, probably associated with early rapid spread and the breakdown of, or lack of access to, healthcare services.

It states that the risk of exposure to the virus to prisoners and staff is “far, far greater” than the risks to individuals in the wider community, adding that social distancing and personal infection control measures are “almost impossible” in prisons. It recommends that authorities “should consider alternative options to incarceration where feasible”.

As the virus continues to spread in prisons, prisoners who would otherwise be safe to release risk becoming critically ill in an environment not equipped to treat them. This puts not only their lives in danger, but also those of the prison staff trying to look after them.

The consequences of further delay will be felt far beyond prison walls. Professor Coker’s report reveals that, as large shared spaces, prisons act as “epidemiological pumps”, which can drive the spread of disease among the wider community.

Explosive coronavirus outbreaks within large shared spaces have acted as preludes to wider transmission among the general population, as has been seen in a cluster of cases associated with a ski-chalet in France and in church and hospital clusters in South Korea.

England and Wales are out of step with many other countries that have taken decisive action to protect health and life.

Northern Ireland is to release 200 of its 1,500 prisoners. Scotland has also said that it will release prisoners early.

Ireland has released prisoners who had already been determined suitable for early release.

France has released almost 10,000 people from prison in the past month.

Netherlands has stopped those who were due to be detained on short sentences from doing so for the time being.

Turkey is to release tens of thousands of prisoners.

In the US, various states have released hundreds of prisoners. In California alone, 3,500 people are to be granted early release in an effort to reduce crowding.

Notes to editors

1. The Howard League for Penal Reform is the oldest penal reform charity in the world. It is a national charity working for less crime, safer communities and fewer people in prison.
2. The Prison Reform Trust is an independent UK charity working to create a just, humane and effective prison system.
3. The Howard League and Prison Reform Trust are represented by Simon Creighton and Hamish Arnott of Bhatt Murphy Solicitors and Dan Squires QC of Matrix Chambers.
4. The letter before claim states that the current government response to the pandemic is considered to be unlawful for five reasons:
   (i) It is not a rational response to a crisis that requires a substantial reduction in the prison population to avoid significant loss of life to take steps that will have little substantial impact on that population (both in terms of the overall population and the population of overcrowded prisons).
   (ii) The Secretary of State has stated publicly that he will take steps to reduce the prison population so as to lower the risks to mass infection and loss of life within the prison estate. It is a breach of legitimate expectation to have failed to take steps which have any realistic prospect of doing so.
   (iii) Prison Rule 9A(1) authorises the Secretary of State to make a direction describing specified prisoners who can be released in response to the Coronavirus. The purpose of the provision is to enable the Secretary of State to make substantial reductions to the prison population across the prison estate and in individual prisons in order to reduce the risk of significant numbers of prisoners being infected. It runs counter to and undermines that purpose to have failed to take measures which will have any substantial effect on the prison population.
   (iv) The current response is contrary to the common law duty and human rights duties to protect life and health, especially of those most vulnerable to the disease.
   (v) The failure to publish the operational details of the release schemes is contrary to the legal requirements of fairness and transparency.
5. The letter before claim can be read in full on the Howard League website.
6. All published correspondence between the two charities and the Secretary of State for Justice, Robert Buckland, as well as the report by Professor Richard Coker, Emeritus Professor of Public Health at London School of Hygiene & Tropical Medicine, can be read on the Howard League website.
7. Frances Crook, Chief Executive of the Howard League for Penal Reform, and Peter Dawson, Director of the Prison Reform Trust, are available for interview. To arrange an interview, contact the charities’ respective communications teams, whose contact details are given below.

Contact

Rob Preece
Campaigns and Communications Manager
The Howard League for Penal Reform
Mobile: +44 (0)7714 604955
Email: robert.preece@howardleague.org

Peter Dawson
Director
Prison Reform Trust
Phone: 020 7689 7732
Email: peter.dawson@prisonreformtrust.org.uk

Alex Hewson
Senior Policy and Communications Officer
Prison Reform Trust
Phone: 020 7689 7746
Email: alex.hewson@prisonreformtrust.org.uk