Prisoners should pay some of the money they earn in jail to victims (on top of the existing criminal injuries’ scheme) in order to recompense for their sins and as part of Justice Secretary Kenneth Clarke’s wider ‘rehabilitation revolution’. Even prison reform campaigners such as Juliet Lyon, director of the Prison Reform Trust, say the plans ‘made good sense’. But do they?
The Prisoners Earnings Act 1996, having sat dormant since the last Tory administration has now been ‘commenced’ (it came into force September 26th 2011). Guidance on how it will operate has been issued by way of Prison Service Instruction (PSI) 48/2011. This states that, in general terms, a levy of 40% will be deducted from prisoners’ net earnings over £20 to be paid to Victim Support via the National Offender Management Service. Net earnings are considered here to be the amount left after income tax, national insurance, court order payments and child maintenance have been deducted. The scheme will apply to all prisoners working in the community for outside employers and, according to the MoJ, will raise £1m per year.
However already legal challenges are being mounted to the 1996 Act. The first problem is that the deduction arguably amounts to a penalty insofar as prisoners are deprived of money that they have legitimately earned following conviction. This potentially clashes with the European Convention (ECHR), articles 6 and 7. The latter prevents the application of a retrospective penalty (the provisions of the 1996 were not in force at the time when prisoners were sentenced). It also possibly falls foul of article 6 (the right to a fair trial) as it is a penalty imposed by a body other than an independent judicial figure. Plus, any deduction from wages would also seem to amount to a deprivation of property and that also engages the ECHR, article 1 of the first protocol. This requires the issue of proportionality to be considered when interpreting the legislation and guidance. The current proposals are that the levy is applied regardless of individual income and unavoidable expenses. The PSI makes it clear that it will only be in very exceptional circumstances (determined by a Governor) that a prisoner will not be deprived of their property. Can this be said therefore to satisfy the proportionality test? Finally concerns have been raised over the fact that women prisoners may be more affected by the proposals than their male counterpoints and whether this breaches the 2010 Equality Act.
However putting to one side what might appear to be some opaque legal arguments, do the proposals make sense financially or otherwise?
What the government is (of course) not telling people is that the vast majority of prisoners earn between £8 and £10 a week and so won’t be affected by the legislation. The deductions, so loudly articulated by the government, will even on the MoJs own figures only apply to the 450 prisoners or so actually employed in the community and who earn enough to trigger the provisions. There are over 87,000 prisoners currently behind bars and so it’s clear that this is more about politics than raising money for victims’ charities.
Even if the figures of £1 million are accurate, this is a pitiful amount when compared to the £4 billion or so spent every year keeping people behind bars.
So why doesn’t the government simply look to extend the scheme to cover all prisoners working? As a matter of domestic and Convention law, prisoners working within prison are not regarded as ‘employees’ and instead receive token amounts as an ‘incentive’ to engage in ‘purposeful activity’ (and even this is negligible given the recent and highly critical report from the Policy Exchange around the lack of work, real or otherwise, available within prison). If prisoners were regarded as being ‘employed’, the government would have to make provision for paid holidays etc, as well as paying prisoners the minimum wage. This would be political suicide
Do the deductions even make sense as part of a criminal justice model?
The obsession with punishment exhibited by David Cameron and his Tory colleagues tells us all we need to know about whether they are, as they initially proclaimed, a changed party.
The reality is that most people, save for the rabid right wing ‘hang em and flog em’ brigade, believe prisons should (if they are to have any real purpose) have some wider utilitarian benefit of reform/rehabilitation rather than simply warehousing the often vulnerable and ill.
So instead of deducting money from the minority of prisoners given the opportunity to work outside, perhaps the government would be better to concentrate on providing real work with real earnings for those behind bars rather than the ‘pocket money’ currently dished out. Because like it or not, it is only by providing real opportunities for prisoners that re-offending rates might come down. It would also provide much more benefit to society financially, given that if prisoners can build up sufficient funds to pay for things like accommodation and the other necessities of life when they are released, then the taxpayer would no longer have to pick up the tab as they invariably have to do now.
The 1996 Act is simply tabloid chasing nonsense, a cosmetic sticking plaster to the wider issue of what prison actually costs (and not just the financial) compared to what it actually achieves. It will kill the work incentive for prisoners able to secure outside employment and ironically will entail that, in apparently supporting some victims, others will be created such as the children of prisoners who, through no fault of their own, are already suffering from their parents’ imprisonment.
Alexander Patterson the then prison commissioner declared in 1920 that ‘people come to prison as a punishment not for punishment’, a maxim the Tories and future governments whatever their hue, would do well to heed.
Matt Evans is the Director of the AIRE Centre, a specialist charity whose mission is to promote awareness of European law rights and assist marginalised individuals and those in vulnerable circumstances to assert those rights. Previously he was the Managing Solicitor at the Prisoners Advice Service for 6 years and worked at a number of leading legal aid firms including TV Edwards, Hickman and Rose and Hodge Jones and Allen.