Freedom for most of us means you can do what you want unless it is banned by law. Our rights exist in the gaps between the law.
In prison, the reverse is true. Everything you can and cannot do is regulated by prison rules and policies. Your right to visits, time out of your cell with others, the chance to do education or work and to engage in religious practices are provided for under the rules. These things are incredibly important when, without them, you a literally contained in a cell usually not much bigger than a parking space and often with a window that barely opens.
On 24 March 2020, prisons across England and Wales shut down. Since then people in prison have lived a half-life, often spending prolonged periods in solidarity confinement, without visits or any purposeful activity as Andrea Coomber of the Howard League has described in a recent blogpost.
This has been legally possible – at least on paper – since summer 2020 because the Coronavirus Act 2020 authorised amendments to the prison, young offender’s institution and secure training centre rules which permitted prisons to provide regimes subject to what was ‘practicable’. As far as I know, there were no challenges brought on the basis that these provisions were incompatible with human rights.
That meant that while children in jail were still entitled to 15 hours education a week, it only had to be delivered if practicable to do it: the result was that many children didn’t get education and there wasn’t much they could do to challenge it because the rules allowed for it. In May 2020, the Howard League published a briefing on children’s experiences in prison during the pandemic. Numerous reports from the Chief Inspector of Prisons in the last two years have echoed these findings.
Contrast this to the High Court’s finding that failure to give a 15 year old child education was an unlawful breach of the rules back in a case brought by the Howard League for Penal Reform in 2017 (see AB v SSJ [2017] EWHC 1964 Admin). In that case. Mr Justice Ouseley said it had ‘not been possible to provide [education]… because not enough thought, effort and resources have been put into it. I understand how doing so removes resources from elsewhere for someone who may not be thought deserving of so much attention. But that is not what the Rule permits, and there are obvious reasons why those who are troublesome in the way AB is and for the reasons he is, cannot be left merely to drift in their education, as if they were responsible adults making adult choices. He is in his GCSE year and has special educational needs.’
The Covid exception to the clear duties on prisons to provide education, visits and other aspects of the regime, came to an end last week. Yet, as many of my clients have poignantly pointed out in the last week, Covid isn’t over. Back in January 2022, the children’s charity Article 39 and the Howard League issued a joint statement highlighting this change and urging the government to ensure that plans were in place to enable prison to adhere to the full rules.
Yet nothing appears to have happened. While restrictions in the community have ceased, people in prison are still subject to highly restricted regimes, periods of quarantine and impoverished services as staff are off sick and whole wings and sometimes entire prisons are shut down after outbreaks. One person, now 30 years old but sentenced to an IPP with a minimum term of a year as a child, told me that in his jail in the south, the entire jail went into shutdown after some cases were detected on two wings. Another person, a 24 year old young man, with ADHD in a jail in the north, described the Covid restrictions still in place following transfer from another prison. He explained that he was told he had a five day quarantine. For some reason, this was only deemed to start the day after his arrival so it was six days. It also made no sense to him as in his one hour out a day, he was put with other people using the shower and phones so he was not isolating after all and felt there was no public health benefit to being behind his door 23 hours a day. To make matters worse, his things from his last jail had been held up at reception so he had nothing to do other than ‘watch TV or walk around his cell like a dog in a cage’. He felt this was a punishment as it was nothing like the government guidance for people on the outside.
The problem is that prisons have become used to restricted regimes during Covid and it has become the new normal, even if it is no longer even legal. Only this week a 20 year old young adult with significant learning difficulties placed in a prison specifically designated to cater for the needs of this age group told me that on average he gets just an hour and a half out of his cell each day from Monday to Thursday and an hour each day from Friday to Sunday. He said that this was nothing to do with Covid and had no expectation that would change. His resignation to a regime that meets the definition of solitary confinement is a sad indictment of a system where pandemic exigencies have led to a further loss of opportunities for rehabilitation and change at a time of prison expansion.
