The plight of prisoners during the pandemic

We have seen headlines such as ‘Coronavirus will thrive in British jails: prisoners face a death sentence’ and media reports stating that recent figures show that more than half the prisons in England and Wales have had an inmate who has tested Covid-19 positive. According to the latest Government figures released on 24 April 2020, 304 prisoners have already tested positive for COVID-19 across 69 prisons. However, the question that has to be asked is ‘Is the Government doing enough to protect and safeguard vulnerable prisoners?’

The Government has rolled out multiple different schemes for releasing particular groups of prisoners. Unfortunately, the process has suffered from a lack of clarity and transparency, with practitioners often unable to find out what measures are available for their clients.

Coronavirus Restricted Temporary Release

The Government has recently rolled out “Coronavirus Restricted Temporary Release” for certain prisoners, provided for in rule 9A of the Prison Rules 1999 from 6 April 2020 (as amended by the Prison and Young Offender Institution (Coronavirus) (Amendment) Rules 2020/400). It is apparent from Rule 9A that the scheme is limited in various ways:

• It is only available to fixed-term prisoners, fine defaulters and contemnors. It is not available to remand prisoners.
• It is not available to foreign national prisoners against whom there is a deportation order and whose appeal rights against deportation are exhausted.
• It is not available to prisoners who have committed offences whilst at large following temporary release.

The Government issued guidance to prisons (not yet available on the Government website but widely circulated among lawyers) on 7 April 2020 which restricts eligibility still further. According to the guidance, release is only available to prisoners who have a low or medium Risk of Serious Harm score, are within 61 days of their automatic release date, and have served at least half of the custodial term they were sentenced to. Many groups of prisoners are specifically excluded, including (among others) those whose offence would entail MAPPA supervision on release, those serving a sentence for a COVID-related offence or a sexual/violent offence, those identified as posing a risk of domestic violence or child safeguarding, those assessed as posing a risk to national security if released, registered sex offenders, and those serving sentences of more than 4 years.

It can be seen therefore that large numbers of prisoners will not be eligible. There was a troubling last-minute development over the weekend of 18-19 April when the Guardian reported that the temporary release scheme had been suspended after six prisoners were freed in error. At the time of writing the status of the scheme is unclear.

Release on Temporary Licence

Separately, the Government has also developed an internal policy, dated 9 April 2020, for the release of some prisoners under the Release on Temporary Licence (ROTL) Special Purpose Licence provisions. This policy was not published on the GOV.UK website and neither practitioners nor the media were told about it. It has now been published by the Prisoners’ Advice Service. Practitioners were previously unaware that Special Purpose Licences – which are more usually used for short-term release to allow prisoners to attend court hearings or funerals, or to receive urgent treatment in the community – were to be the Government’s preferred mechanism for releasing those prisoners who are particularly vulnerable to COVID-19.

Under this new scheme, pregnant women, mothers with babies in prison and prisoners who fall into Public Health England’s “extremely vulnerable” category are to be automatically considered for ROTL. Notably, the normal ROTL Policy Framework continues to apply, meaning that some prisoners (including Category A and restricted status prisoners, and those who pose an “unacceptable risk of reoffending or failing to comply with conditions”) are ineligible. Others (including those assessed by OASys as posing a high or very high risk of serious harm) will only qualify for Restricted ROTL, rather than Standard ROTL. It is clear from the Policy Framework at [4.9] that Restricted ROTL is normally only available to male prisoners if they are in an open prison or to female prisoners assessed as suitable for open conditions, although exceptionally it may be available to male prisoners in closed prisons who have been assessed as suitable for open conditions but cannot transfer due to health issues. It is also clear that the consideration of ROTL is subject to a risk assessment in every case. It therefore appears virtually certain that not all prisoners who are pregnant, have young babies or are “extremely vulnerable” to COVID-19 infection will be granted ROTL under the policy.

Other routes to release

 It can be seen therefore that not all prisoners who are vulnerable to COVID-19 infection will qualify for release under the two routes offered by the Government. Some prisoners who are vulnerable by virtue of being terminally ill may qualify for early compassionate release under Prison Service Order 6000, but others will not, and there has been no publicly announced move by the Government to expand eligibility for early compassionate release.

Legal developments

On 17 April 2020, the Howard League for Penal Reform and the Prison Reform Trust sent a pre-action letter to the Secretary of State for Justice challenging the legality of the current limited release policy. It will be interesting to see the shape of any litigation that follows.

Amidst these fast-moving developments, it should not be forgotten that the State owes an operational duty under Articles 2 and 3 ECHR to protect the life/health of prisoners. In very exceptional circumstances the Strasbourg Court has held that this can involve a duty to release a prisoner on medical grounds – see Khudobin v Russia (2009) 48 EHRR 22 and Mouisel v France (2004) 38 EHRR 34. While it is unlikely that this duty would require the Government to carry out a pre-emptive mass release, it could, depending on the facts, potentially justify an argument that the only way to protect a seriously ill prisoner in the “extremely vulnerable” category is to release them.