Quis custodiet ipsos custodes? Update on Scrutiny of Criminal Justice in a Time of Crisis

In these extraordinary times, everyone is having to adapt to the requirements of social distancing- not least the institutions that hold the authorities to account. There’s been much talk today of the need for Parliament to resume as soon and as effectively as possible. Although it’s in recess for another week – normally a period in which neither House meets to conduct business- work has continued not least in relation to criminal justice.

Four emergency Statutory Instruments (SIs) came into force last week; to allow prison governors to release prisoners temporarily; to allow those prisoners to be accommodated in Probation hostels and to access means tested benefits during the period of their release. The fourth enables the increased demand for electronic tagging to be met by a new provider – Attenti .  

There was no opportunity for MPs to debate the measures – and disappointingly no impact assessments attached to the SI’s despite an assurance in the explanatory memoranda that there would be. The Justice Committee were however able to ask questions of Justice Secretary Robert Buckland and Prison and Probation Chief Jo Farrar on Tuesday.  They concentrated on the early release provisions, asking for estimates of the numbers and rates of release, why low risk Category D prisoners were not being prioritised for release, whether all prisoners really need to be tagged.  

The session seems to have formed part of a belatedly established inquiry into the impact of Coronavirus on prison probation and courts,  announced on 31 March – three weeks after the Home Affairs Committee announced their inquiry into Home Office preparedness for Covid19. But at least the Justice Committee has been able to hold two meetings with Buckland and will question prison and probation minister Lucy Frazer this week.  

As well as focusing on how probation is managing to operate in the current climate, Tuesdays’ hearing should also look at three questions that were neglected in last week’s meeting with Buckland.

The first is staffing. Prisons are really struggling with staff either sick or self-isolating. Some staff have been redeployed from HQ into jails and Operation  Quickthorn could be activated to allow troops to backfill "non facing" roles . But under what circumstances would the military be involved, what exactly would they do and under whose authority. Could they assist probation as well?

The second question relates to the 500 new prison places being created, how they will be used and what physical conditions they will provide.  There’s been concern expressed by reformers that expanding capacity in this way will mean that prisoners eligible for temporary release may be kept in prison instead and that the numbers freed will not reach the estimated 4,000 let alone the 15,000 reportedly recommended by Public Health England.

Third, the Justice Committee should ask about the work of the bodies charged with monitoring prisons and probation. Independent Monitoring Boards are continuing to monitor both prisons and immigration detention during the pandemic, though “much of this will necessarily be remote monitoring”. The Prison and Probation Ombudsman cannot read and reply to letters from prisoners who wish to make complaints.   The PPO has also ceased all visits to prisons so their investigation of fatal incidents – including deaths of prisoners from Coronavirus is affected. They “will continue to be informed of all deaths and will open new investigations as normal, but it is likely that we will need to extend our timetables and/or suspend cases until we are able to gather information and investigate safely”.  

Her Majesty’s Inspectorate of Prisons announced this week that they have created – in collaboration with HM Prison and Probation Service (HMPPS) and the Ministry of Justice -an adapted approach for the Coronavirus period, involving short scrutiny visits to prisons. These will focus on core issues such as healthcare, nutrition and hygiene; contact with families, friends and the outside world; legal rights; use of time and the need for meaningful human contact; support for those at risk of self-harm and suicide; and support and risk management for those being released.

What looks like a pragmatic approach from the Inspectorate received short shrift from the Prison Governors Association who consider that the visits are not needed and will put undue pressure on governors and their staff.  Somewhat disturbingly, the PGA’s strongly worded response talked of the "fear of inspection"some of their members have, and the likelihood that no tangible benefits will result from any inspection report. 

Whatever the Governors say, there is no doubt that some form of monitoring must take place. The UN and WHO have stated that monitoring bodies, should continue to have access to places of detention. The Council of Europe’s (CoE) Committee for the Prevention of Torture has said that monitoring by independent bodies remains an essential safeguard against ill-treatment. The question must be not whether inspection visits take place but how.  

The CoE Commissioner for Human Rights argued this week that prisons need a humane and comprehensive crisis plan which should be formulated “in consultation and co-operation with relevant human rights stakeholders, in particular National Preventive Mechanisms, other independent monitoring bodies, national human rights structures and human rights NGOs”.

MPs should ask Miss Frazer whether this is the approach that is being adopted in England and Wales- as a concrete example, are the plans for new build accommodation being discussed in advance with inspectors to check they meet minimum standards? 

This would indicate the kind of collaborative approach which is likely to serve the system best during the crisis and protect the health of those involved in it.