An Overview on Prison Reforms in the UK

The present article, “An Overview of Prison Reforms in the UK” will focus on prison reforms in the UK. Firstly, the article will examine the history of penal institutions. Secondly, the prison administrative framework will be discussed, and the administrative or legislative documents affecting the prison reforms themselves will be examined. Finally, the various issues and concerns of the UK prison system will be analyzed.

Introduction

“…Britain currently leads its western European neighbours in terms of inmates per head of population. England and Wales jail 138 of their population per 100,000; Scotland 147. Compare that with 76 in Germany and 59 in the Netherlands and Norway. Even Spain (123), Italy (101) and France (105) lag behind us...”^[1]

The above statistics relating to the prison population in the United Kingdom, (‘UK’) tally with the reported ‘dramatic’ increase in persons who are serving long prison sentences.[2] According to a report published by the Prison Reform Trust, nearly 11,000 people in person in the UK will spend at least 10 years in custody. Critically, some of them may be undertrials or be serving indeterminate sentences with no clarity as to when or if they will be released.[3]

Many critics question why prison reforms are necessary when theories of punishment are geared towards deterrence and setting examples to the rest of society. However, modern penology has moved from a deterrence model to a reformatory system. This implies that rather than punishment for the sake of punishment, prison systems look to reforming individuals and releasing them into society, as individuals with vocational skills that can contribute to the economy.

According to the UNODOC, the central argument in the promotion of prison reforms is the assertion of the human rights of the prisoners and the growing evidence that imprisonment as a form of punishment does not always lead to the best outcomes in law enforcement, including deterring future offenders.[4] Further, prison reforms in nations are also motivated by the detrimental impact of imprisonment upon communities and economic factors, such as scarce public resources.[5] Prison reforms may also refer to attempts in improving prison living conditions, such as improving sanitation and providing greater access to visits by families of the prisoners.

History of Penal Institutions and Penal Reforms

The use of prisons as a form of punishment is relatively new, with corporal punishments, public beheadings, etc being the most favored mode of punishment historically. In 18^th century England, the British justice system used prisons for all kinds of offenders including debtors (civil offenders) to convicted murderers and thieves.

John Howard, who was an important social reformer, visited several prisons in Europe, including England, and published various treatises on the state of prisons.[6] In his work, he proposed that prisoners should have designated cells, with separate sections or prison blocks for women inmates, male inmates, juvenile offenders, and debtors.[7] He further suggested solitary confinement, hard labor for inmates, and religious instruction (coming from the term ‘repentance’).[8] According to him, the object of punishment was reformation and rehabilitation and not penalization per se.[9]

The major legislation on prisons at this time was the Penitentiary Act, 1779. The 1779 Act authorized the construction of two prison complexes in keeping with Howard’s theories on state-controlled prisons.[10] The 19^th century heralded new legislation on prisons known as the Prison Act of 1877, which altered the administrative hierarchy of prison systems, away from the control of magistrates, as it had been under the 1779 Act.

The period of 1877-1914 was a period of transition for the English penal system, with several legislative reforms to the prison system. The Prison Commission in 1877 nationalized and brought the localized system of prisons in the county under its jurisdiction. Next, the Prison Act of 1898 enabled the Home Secretary to push through multiple reforms without having to go through numerous procedural and political requirements.[11]

A vital change to prison populations was brought in by the Probation of Offenders Act, 1907 which introduced a new mechanism of probation that reduced prison inmate populations, thereby reducing public expenditure costs. Major reforms had also been championed by Winston Churchill, which were unpopular politically but arguably had a long-term positive impact by shortening prison terms and streamlining the process of rehabilitation.[12]

Prison Framework

1. Legislative Framework

The Prison Act, 1952 is the primary legislation in the UK that deals with prisons, institutions for offenders, and other related matters.[13] It also sets up the administrative framework of the prison system and states that the Secretary of State shall have general jurisdictional power over prisons.[14] Thus, as general superintendent of prisons, the general duty or obligation required by the statute of the Secretary, is ‘make the contracts and do the other acts necessary for the maintenance of prisons and the maintenance of prisoners.’[15]

It has been reported by prison reforms organizations that the legislation focuses too much on the administrative running of the system, and has no clear statutory purpose.[16] The substantive standards for prison conditions are not very well developed in this legislation, and the bulk of the operational framework can be found in the regulations made under this legislation, which are the Prison Rules, 1999.[17]

These Rules provide for the management of prisons, which includes measures relating to the treatment of prisoners, the conduct of prison officers, and the powers and duties of boards of visitors.[18] However, according to Smit (2010), the 1999 Rules have not been regarded as a source of enforceable rights of prisoners. Several standing orders and documents released by the prison services contain more information, but cannot be regarded as enforceable criteria for prison conditions.[19]

2. Administrative Framework

The prison system has developed organically over time with the change in the financial, political, and functional environment, various parts have been modified and reformed.[20] Ultimately, the responsibility of running all aspects of the operations rests with the Secretary of State for Justice, apart from the Secretary of State.

Under the Secretary of Justice, the Ministry of Justice with its governmental agencies act as “commissioner, provider, and route of accountability with no clear split between these different roles.”[21] Due to this centralization of responsibility with no differentiated charges, the structure of the prison system and the ensuing obligations are unclear. This means that the lines of accountability are also unclear.

It is apparent that such a state of affairs could be a cause for concern, however in the case of the UK prison system, it also precludes the capacity to bring lasting change for the system. On the part of oversight bodies. These include the Inspectorate of Prisons [also known as Her Majesty’s Inspectorate of Prisons (HMIP)] as well as the Prisons and Probation Ombudsman (PPO), and other independent watchdogs.[22]

3. Standards

Smit (2010) writes that the vague statutory position of penal legislation has led to a lack of substantive standards as to the performance of prisons. Thus, the internal regulation of prison conditions is based on indigenous standards, generated by the administering authorities.[23]

These include key-performance indicators (‘KPIs’) and target and standard audits.[24] In addition to KPIs, specific key-performance targets are also set based on the challenges of the prison with a certain category of the population. Thus, KPIs and KTIs (‘Key Target Indicators’) are used along with the audits that are performed by the Prison Service Audit Unit. The mandate of the Prison Service Audit Unit, an internal body in the Prison Service system is to ensure implementation of the policies, procedures, instructions, standing orders, and standards, as provided in the Prison Act, 1952 and the Prison Rules, 1999.[25]

4. Regulations

Prison regulatory mechanisms in the UK prison system are two-fold. The first fold refers to the standards discussed in the previous section. The external regulations are the second fold. According to Liebling (2004), external regulation comes from the national prison inspectorate or HMIP and local bodies, which are usually independent.[26] The national prison inspectorate is concerned with the living conditions of prisons and has devised criteria on prisons and treatment of prisoners based on international standards and best practices rather than the policy of the national prison services.

In addition to the HMIP, another form of external check on the prison system is provided by the Boards of Visitors (now known as IMBs), whose function is to “act as a watchdog of the daily life and regime in an individual prison.”[27]While it is not clear how effective this system it is, prisoners can directly complain to IMBs about prison conditions, and the IMBs in turn can call the attention of the governor or the prison in question to any urgent matter. Thus, it forms an important democratic provision for use by aggrieved prisoners.[28]

Thus, the four main institutions dealing with regulating prison conditions in England and Wales include:

• • The Prison Service Audit,
  • HMIP,
  • Local Independent Bodies,
  • IMBs.

Courts as a Vehicle for Reform

Apart from regulatory institutions, the court system has been an important source of prison reforms in the UK. English courts have tended to be deferential to prison authorities in cases where prisoners challenged any conditions in their sentences in any prison in the UK.[29] However, this situation has reportedly changed due to a change in the acknowledgement of prisoners’ rights.

English courts have increasingly acknowledged and affirmed the rights of prisoners in their judgments, and this is reflected in both common law and the European Convention on Human Rights, 1953.[30] However, scholars have pointed out that since the legislative framework on prisons in the UK are not clear on the standards by which to judge the actions of prison administrations, this system of reforms through case law may not be a sustainable one. [31]

One of the first successful lawsuits made by a prisoner was a Scottish prisoner suing the authorities on a human rights violation claim in Napier v. Scottish Ministers[32]. Therein, the plaintiff alleged that his human rights had been violated by being forced to live in prison conditions that exacerbated his severe eczema. The court ruled in favour of the plaintiff, and in the view of the court, such treatment was in violation of his right to not be subjected to degrading or inhuman treatment. The plaintiff was also awarded damages. These rights were part of Scottish law as well as the United Kingdom law, the Human Rights Act.

The impact of the Napiers case was that Scottish prison authorities had to abolish the degrading practice of ‘slopping out’ (where prisoners are expected to use buckets for urination and defecation and clean the same)and deal with other prisoner complaints.

Nonetheless, the overall condition of prisons in the UK is not ideal and is summed up well in the words of Hood (1999):

“Prisons in England and Wales are subject to one of the densest patterns of oversight of any public sector activity. There has been a tendency to add new layers of regulation at various times without taking anything away, creating considerable overlap and duplication. Regulators who lacked formal powers were nevertheless observed to develop less formal mechanisms for seeking modification of behaviour.”^[33]

Impact Of Covid-19

According to a report submitted by the House of Commons Justice Committee in September 2021, 70 per cent of prisoners in England and Wales are suspected to have moderate to severe mental health issues.^[34] While it is true that prisoners are acclimatized to prolonged periods of confinement, similar to the lockdowns that most of the world’s democracies have seen in the last two years, the prisoners face worse conditions.

This is due to the hours of confinement for the prisoners in cells having increased up to 23 hours a day, and restrictions from partaking in vocational and skill training due to staff shortages.^[35] Thus, the impact of COVID-19 is another important factor to be considered in making future reforms.

Conclusion

The above article has discussed the legislative, administrative, and extra-legal frameworks relating to prison systems as well as historical and current prison reforms that have been affected in the UK.

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[1] D. Campbell, Britain’s Prisons Are Becoming Ever More Like the Failed US System, The Guardian, (01/11/2021), Available here

[2] Ibid.

[3] Ibid.

[4] Why Promote Prison Reform, United Nations Office on Drugs and Crime, Available here

[5] Supra, at note 4.

[6] J. Howard, The State of Prisons in England and Wales, 1777.

[7] Ibid.

[8] John Howard and Prison Reform, UK Parliament, Available here

[9] Ibid.

[10]Ibid.

[11] Edward Moritz, Jr., “Winston Churchill – Prison Reformer,” The Historian 20 #4 (1958), pp. 428-440.

[12] Supra, at note 11.

[13] Statement of Object and Reasons, Prison Act, 1952.

[14] Section 1, Prison Act, 1952.

[15] Section 4(1), Prison Act, 1952.

[16] Prison Safety and Reform, Ministry of Justice, Available here

[17] D. Z. Smit, Regulation of Prison Conditions, Crime and Justice 39, no. 1 (2010): 503–63, Available here

[18] Explanatory Note to The Prison Rules, 1999, Available here

[19] Supra, at note 17.

[20] Supra, at note 16.

[21] Ibid.

[22] Ibid.

[23] Supra, at note 17.

[24] Ibid.

[25] Ibid.

[26] Liebling, A. 2004. Prisons and Their Moral Performance: A Study of Values, Quality, and Prison Life. Oxford: Oxford University Press

[27] Livingstone, S., T. Owen, and A. MacDonald. 2008. Prison Law. 4th ed. Oxford: Oxford University Press.

[28] Supra, at note 26.

[29] Van Zyl Smit, D., and S. Snacken. 2009. Principles of European Prison Law and Policy: Penology and Human Rights. Oxford: Oxford University Press.

[30] Supra, at note 17.

[31] Supra, at note 17.

[32] [2004] SLT 555 [2004] UKHRR 881.

[33] Hood, C., O. James, G. Jones, C. Scott, and T. Travers. 1999. Regulation Inside Government: Waste-Watchers, Quality Police, and Sleazebusters. Oxford: Oxford University Press.

[34] Mental Health in Prison, Fifth Report of Session 2021-22, (21/09/2021), Available here

[35] Supra, at note 34.

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