COVID-19 and Prisons: The Coronavirus Restricted Temporary Release Scheme, Pregnant Prisoners and Children in Custody
21 Apr 2020
COVID-19 is a dangerous reality for prisoners. As of 18 April 2020, confirmed cases of COVID-19 have been reported in over half of prisons in England and Wales. There have been 13 suspected COVID-19 deaths among prisoners[1]. Amongst this wider concern, those who are pregnant and children in custody may be particularly anxious during this unprecedented time.
A number of organisations and charities are engaged in vital campaigning to ensure that the rights of such prisoners are upheld, and their safety is protected. Developments have been made regarding the status of these prisoners since the outbreak of the pandemic.
The danger of COVID-19 in prisons
Efforts must be undertaken to prevent prisons becoming petri dishes for the incubation of COVID-19. The health of the prison population is proportionally poorer than that of the general population. Conditions are generally overcrowded, unsafe and unsanitary. In recent years this has been compounded by budget reductions, staffing shortages and outdated establishments[2]. The Head of the Prison Governors Association has explained how the current pandemic will exert even more strain:
“a combination of prison overcrowding, prisoner lockdown and staff shortages as a result of prison workers needing to isolate themselves meant that the system was facing unprecedented pressure”[3].
In March 2020 the organisation Detention Action launched a judicial review relating to the detainment of people in UK Immigration Removal Centres. The legal challenge was supported by expert evidence from Professor Coker, an Emeritus Professor of Public Health at the London School of Hygiene and Tropical Medicine. His report notes:
“The experience of COVID-19 on cruise ships suggests that a scenario where 60% of detainees become infected is plausible and credible… Many of the elements that facilitate spread on cruise ships which have had transmission of COVID-19, such as poor ventilation, challenging sanitation conditions, limited space and passengers being confined to their cabins for lengthy periods are the same as exist in immigration detention centres.” [4]
Shortcomings of the response to COVID-19 in prison
The Ministry of Justice’s strategy to address coronavirus in prisons involves a “mixed plan of release, extra accommodation and staffing”[5]. The Government has projected that, as well as those from pregnant prisoners and those in mother and baby units 4,000 people will be eligible for release under the temporary licence scheme.
Unfortunately, the efficacy of the Ministry of Justice’s response to COVID-19 in prisons has been inadequate. Despite making allowances for the release of prisoners, this process has been slow. In reality, the number of people who have been released under the custody temporary release scheme is far fewer than initial projections. There have been no official figures on how many prisoners from the general population have been released.
On 16 April 2020, the temporary release scheme was suspended, following the accidental release of six prisoners. These low-risk offenders, who were eligible for the scheme but released too early, returned compliantly. The scheme was due to begin again the week commencing 20 April 2020.
The Coronavirus Restricted Temporary Release scheme
On 6 April 2020 a statutory instrument was laid which amends the Prison and Young Offender Institution Rules to allow for the early release of prisoners due to COVID-19[6]. Prison Rule 9A(1) was amended to include “Coronavirus Restricted Temporary Release” (CRTR). The Young Offender Institution Rules 2000 were amended in accordance with the Prison Rules (YOI Rule 5A). These amendments constitute the legal basis for the Ministry of Justice’s claims of releasing up to 4,000 prisoners from the general prison population[7].
Under the CRTR scheme, only prisoners serving a standard determinate sentence with an automatic release date and no Parole Board involvement are eligible for release. One particularly striking safeguard is that to be eligible for release under the COVID-19 scheme, a prisoner must already be eligible for release under Prison Rule 9 on temporary licence.
The following categories of prisoner are ineligible for release under the CRTR, as summarised in a House of Commons Briefing Note[8]:
- Those serving indeterminate sentences, extended sentences or sentences for offenders of particular concern;
- Those serving sentences for terrorist and terrorist related offences’
- Those who are excluded from Release on Temporary Licence;
- Those committed to custody for trial or remanded by the courts;
- Those who have committed offences whilst on temporary release;
- Those who are being removed from the United Kingdom and who have exhausted their “in-country” rights of appeal against removal;
- Those who will be subject to the notification requirements of Part 2 of the Sexual Offences Act 2003 (“registered sex offenders”) and
- Prisoners whose security classification is Category A (males) or Restricted (females and young adults).
This scheme was introduced to an already existing array of powers available to manage COVID-19 in prison. Such powers have been exercised in relation to pregnant prisoners. Other powers include the royal prerogative of mercy, whereby a convicted person can be granted a pardon. The Prison Reform Trust has highlighted the existence of this power in a letter to Robert Buckland QC, dated 8 April 2020, stating: “you may also release anyone under the royal prerogative of mercy and consider that you ought to do this where necessary and appropriate.”[9]
The plan for pregnant prisoners
On 31 March 2020 the Ministry of Justice announced that pregnant prisoners in custody and those in mother and baby units would be temporarily released from prison.
Section 248 of the Criminal Justice Act 2003 (CJA 2003) confers upon the Secretary of State the power to release a fixed-term prisoner on licence, if they are satisfied that exceptional circumstances exist which justify the prisoner’s release on compassionate grounds. The COVID-19 pandemic evidently constitutes “exceptional circumstances” within the remit of s 248 CJA 2003. The release of pregnant prisoners and those in mother and baby units will be managed through Release on Temporary Licence (ROTL)[10].
Each prisoner released will be subject to an individual risk assessment. Only those who are assessed as not posing a risk of harm to the public will be released on temporary licence. The Justice Committee has confirmed that directions relating to the criteria for temporary release “will be published”[11]. To date, these have not been published.
Additionally, they will not be released until suitable accommodation has been identified and verified. Licence conditions include a requirement to stay at home and, where appropriate, wear an electronic tag. Prisoners can be immediately recalled for breaching licence conditions or committing further offences.
To date, 69 prisoners who fall within these categories have been released.
The plan for children in custody
In February 2020 there were 773 children in the secure prison estate for children and young people. In March 2020 there were approximately 240 children in custody on remand.
The response to COVID-19 has not made allowance for the temporary release of children in custody. Efforts to combat the virus have been introduced in line with adult prisons. Visits, education and offending programmes have been suspended. Children are now likely to be locked in their cells for over 22 hours each day. This compounds pre-existing concerns about mental health and self-harm. On 18 March 2020 a coalition of organisations and charities wrote to the Ministry of Justice, highlighting such concerns and calling for the managed release of child detainees:
“We have to anticipate that all children will be frightened by this pandemic – for themselves and for those they love. Children with mental health difficulties and children who have learning disabilities are already known to find incarceration deeply challenging, if not unbearable. The absence of personalised care and reassurance at this exceptionally difficult time (which could last for many months) could be extremely detrimental to children’s health and well-being.”[12]
On 25 March 2020 the Children’s Commissioner wrote to the Ministry of Justice, outlining her concerns that present measures are insufficient to ensure the safety of children in custody. The letter states:
“There will be children within the youth custody estate with underlying health conditions. I believe that without reducing the numbers of children in custody it will be impossible to mitigate the risk to these children… I believe all children with an underlying health condition which makes them susceptible to COVID-19 should be considered for early release.”[13]
The letter has also called for a review of the status of children who have detained in relation to non-violent offences, children aged under 14 and children due to be released in the next six months.
To date there has been no official suggestion that measures introducing the release of children in custody will be forthcoming. Charities continue to lobby the Ministry of Justice for more dramatic measures to address the concerns around children in custody.
Judicial review of the Secretary of State for Justice
On 17 April 2020 lawyers acting for the Howard League for Penal Reform and the Prison Reform Trust commenced legal action against the Secretary of State for Justice, Robert Buckland QC. A formal letter before claim has been sent over the government’s failure to respond effectively “to the obvious need…to substantially reduce the prison population to save lives and avoid a public health catastrophe both within prisons and beyond”[14].
The letter outlines five grounds of challenge. In relation to the first ground, rationality, the letter argues as follows:
“It appears now to be widely accepted (including by the Secretary of State) that a response to the current pandemic requires a substantial reduction in the prison population to avoid significant loss of life (both in terms of the overall population and the population of overcrowded prisons). Measures which purport to meet that requirement but which will have little or no impact on the overall prison population in general, and the most overcrowded prisons in particular, is not a rational response. In the words of Sedley J (as he then was) it is a measure which does not “add up”.”[15]
The letter further argues that the Secretary of State has created a legitimate expectation that he will take steps to reduce the prison population. The Secretary of State has breached this legitimate expectation.
The third ground of challenge is frustration of legislative intention. In relation to Prison Rule 9A(1) it is stated that the “narrow” approach taken by the Ministry of Justice “runs counter to and undermines the purpose of the legislation, which is expressly described in the explanatory memorandum as “to allow prison governors, on behalf of the Secretary of State, to release certain prisoners temporarily to help manage the incidence or transmission of coronavirus and to facilitate the effective running of prisons and young offender institutions”.[16]”
The final ground relates to fairness and transparency, insofar that the advice and detail of the existing policies has not been published, despite the Justice Committee being told on 7 April 2020 that this would occur.
The letter can be read in full here.
The letter further calls for the Ministry of Justice to expedite the consideration of release of pregnant women and mothers. It further calls for the urgent consideration of the release of all children in custody, in line with international guidance: the United Nations Committee on the Rights of the Child has called for states to release children in all forms of detention, wherever possible[17]. The UN Office of the High Commissioner for Human Rights has released guidance reiterating the same[18]. The Prison Governors’ Association has appealed to the Government to facilitate the temporary release of 15,000 people from prisons across England and Wales[19].
Further information and related campaigns
Howard League for Penal Reform, Our Response to COVID-19 and prisons, <https://howardleague.org/our-response-to-covid-19-and-prisons/>
Just for Kids Law <https://www.justforkidslaw.org/>
Ministry of Justice, Coronavirus (COVID-19) and prisons, 9 April 2020 <https://www.gov.uk/guidance/coronavirus-covid-19-and-prisons>
Women in Prison, Briefing: COVID-19 and Prisons, <https://www.womeninprison.org.uk/news-and-campaigns.php?s=2020-03-24-briefing-covid-19-prisons>
Youth Justice Legal Centre, Youth Justice Law in England and Wales, <https://yjlc.uk/>
[1] The Guardian, ‘UK coronavirus prison plan on hold after six inmates freed in error’ (18 April 2020) <https://www.theguardian.com/society/2020/apr/18/uk-coronavirus-prison-plan-suspended-after-six-mistakenly-released>
[2] Health and Social Care Committee, ‘Prison health’ (22 October 2018) <https://publications.parliament.uk/pa/cm201719/cmselect/cmhealth/963/963.pdf>
[3] The Guardian, ‘Release inmates or face jail pandemic, say prison governors’ (25 March 2020) <https://www.theguardian.com/society/2020/mar/25/release-prisoners-or-face-jail-pandemic-says-chief>
[4] Professor Richard Coker, ‘Report on Coronavirus and Immigration Detention’ (17 March 2020) <https://detentionaction.org.uk/wp-content/uploads/2020/03/Report-on-Detention-and-COVID-Final-1.pdf>
[5] Justice Committee (n 4)
[6] S/I 2020 No. 400, ‘The Prison and Young Offender Institution (Coronavirus) (Amendment) Rule 2020 <https://www.legislation.gov.uk/uksi/2020/400/pdfs/uksi_20200400_en.pdf>
[7] Justice Committee, ‘Summarised note of meeting with the Lord Chancellor’ (7 April 2020) < https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/news-parliament-2017/summerised-note-of-meeting-with-lord-chancellor-19-20/>
[8] House of Commons, ‘Briefing Paper’ (8 April 2020). <https://commonslibrary.parliament.uk/research-briefings/cbp-8892/>
[9] Prison Reform Trust, ‘Letter to Robert Buckland QC’ (8 April 2020) <http://prisonreformtrust.org.uk/portals/0/documents/letters/Covid-19%20open%20letter%20to%20SoS%20080420.pdf>
[10] Ministry of Justice, ‘Pregnant prisoners to be temporarily released from custody’ (31 March 2020) <https://www.gov.uk/government/news/pregnant-prisoners-to-be-temporarily-released-from-custody?utm_source=52002a9d-06fd-46ae-b5ea-cbbf4a513143&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate>
[11] Justice Committee, ‘Summarised note of meeting with the Lord Chancellor’ (7 April 2020) < https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/news-parliament-2017/summerised-note-of-meeting-with-lord-chancellor-19-20/>
[12] Article 39, ‘Joint call for safe release of child prisoners’ (18 March 2020) < https://article39.org.uk/2020/03/27/joint-call-for-safe-release-of-child-prisoners/>
[13] Children’s Commissioner, ‘Calling on the Lord Chancellor and Secretary of State for Justice to ensure the rights of children are upheld during the coronavirus outbreak’ (25 March 2020) <https://www.childrenscommissioner.gov.uk/2020/03/25/calling-on-the-lord-chancellor-and-secretary-of-state-for-justice-to-ensure-the-rights-of-children-in-custody-are-upheld-during-the-coronavirus-outbreak/>
[14] Howard League for Penal Reform, ‘Judicial review: Howard League and Prison Reform Trust issue government with letter before action over its response to coronavirus in prisons’ (17 April 2020) < https://howardleague.org/news/judicial-review-howard-league-and-prison-reform-trust-issue-government-with-letter-before-action-over-its-response-to-coronavirus-in-prisons/>
[15] Howard League for Penal Reform, ‘Letter before claim’ () <https://howardleague.org/wp-content/uploads/2020/04/LBC_Prt_HL_2020_04_17.pdf>
[16] Howard League for Penal Reform (n 14)
[17] United Nations Committee on the Rights of the Child, ‘Statement’ (8 April 2020) https://tbinternet.ohchr.org/Treaties/CRC/Shared%20Documents/1_Global/INT_CRC_STA_9095_E.pdf>
[18] United Nations Human Rights, ‘Covid-19 Guidance’ <https://www.ohchr.org/EN/NewsEvents/Pages/COVID19Guidance.aspx>
[19] Prison Governors Association, Evidence to Justice Committee on COVID-19, 6 April 2020
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