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Civil liberties during Covid-19

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Protection for prison staff and prisoners during Covid-19

The protection – or concerns over lack of it – for prison staff and prisoners across England and Wales during the rapid spread of Covid-19 has been a major issue for the Government and one for which it has been heavily criticised.

The situation saw two prison reform charities threaten legal action, saying the Government’s response had been “contrary to the common law duty and human rights duties to protect life and health”.

Victoria Richardson, of Hudgell Solicitors’ Civil Liberties and Human Rights team, supports many families in cases relating to the ‘right to life’.

Here she takes a looks at some of the key questions over the protection of prisoners and prison staff during the coronavirus pandemic.

Frequently Asked Questions

What have been the major concerns relating to prisons?
Prisons across England and Wales are overcrowded and many inmates are known to be living in poor conditions. A report by the Prison Reform Trust in 2019 revealed that the prison population in England and Wales was more than 84,000, and that 81 out of 120 prisons were overcrowded, with thousands of cells containing more than one inmate. In 2019, inspectors found that 10 out of 35 prisons inspected failed to meet minimum standards of cleanliness and infection control compliance – making them an obvious risk during a situation like the coronavirus outbreak. Given that 15% of the prison population were said to have respiratory issues in a report published 12 months earlier, and around 1,700 prisoners are over the age of 70, with many in their 80s and a growing number over 90, concerns were quickly raised. The Prison Governors' Association called for the prison population to be reduced by 15,000 to make it a safer environment.
What steps were planned to reduce risk?
A number of measures have been announced to protect prisoners, staff and visitors. On March 17, 2020, Peter Clarke, HM Chief Inspector of Prisons, announced that, following Government guidance on social distancing in dealing with Covid-19, all scheduled inspections involving visits to prisons or other places of State detention in England and Wales had been suspended up to the end of May 2020. A week later, on March 24, the Government announced that all prison visits had been temporarily cancelled. It said the move had been taken to ‘ensure prisons are complying with social distancing rules and to protect staff and prisoners.’ In recognition of the importance of continued contact with family, it pledged to make secure phone handsets available to prisoners at 55 jails, allowing risk-assessed prisoners to speak to a small number of pre-authorised contacts and support services such as the Samaritans. Prisoners were at this stage confined to their cells apart from cleaners, kitchen staff and other key prisoner workers. On April 4, the Government announced plans to release as many as 4,000 risk-assessed prisoners within two months of their release date. In its press release, the Government said “This action being taken is necessary to avoid thousands of prisoners becoming infected. This is due to the close proximity between prisoners, who often share cells.” In its statement it said that at the time that some 88 prisoners and 15 staff had tested positive for Covid-19.
How quickly were prisoners then released?
Many alleged not quickly enough. The Howard League for Penal Reform and the Prison Reform Trust wrote to Justice Secretary Robert Buckland on Friday, April 16 – 24 days after the UK had been placed into lockdown and 12 days after the early release plans had been announced - calling for a judicial review. They claimed “the rate of releases has been too slow and too limited to make any substantial difference to the prison population.” In national newspaper reports it was claimed that as of Tuesday, April 13, only 18 prisoners had been released before the end of their sentences. This was nine days after the plans to release up to 4,000 were announced. The Ministry of Justice confirmed that by 5pm on Thursday, April 16, a total of 255 prisoners had tested positive for Covid-19 in 62 jails, and that 13 were known to have died. A total of 138 prison staff had also contracted the virus in 49 prisons, as well as seven prisoner escort and custody services staff. The release programme faced further delay when ‘a small number of low-risk offenders were released from prison under the temporary early release scheme following an administrative error.’ The Prison Service said the scheme had been temporarily suspended.
What other concerns were raised over welfare?
There have been many reports of prisoners displaying Covid-19 symptoms having to share their cells with other prisoners, potentially spreading the disease further. The mental health of prisoners has also been raised as a concern by various parties, particularly given the extended time without the ability to see family or friends, or take part in usual activities such as educational workshops.
What is the Government’s duty to protect people?
Under Article 2 of the Human Rights Act, which protects the right to life, the Government is obliged to protect the lives of those who are detained from any foreseeable danger, such as Covid-19.

Comments from Vicky Richardson

This has without doubt been a hugely difficult challenge for our Government to face, but it must be stressed that it owes the same duty of care to those in custody as it does everybody else in this crisis.

That means it is expected by law to do everything in its power to protect the lives of detainees, and of course prison staff. It must also be remembered that a major outbreak throughout prisons would not be confined to prison walls and would have wider impact.

The Government must expect the same scrutiny and investigation should there be avoidable deaths in prisons and detention centres though continued potential exposure to the virus and risk, or through a lack of access to healthcare, for both staff and prisoners.

That is why so many questions are being asked about the time it has taken to reduce the prison population.”

For more information about Covid-19 and its impact on prisoners, contact Victoria Richardson.

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