Incarceration and human rights

The Oxford Amnesty Lectures

Melissa Mccarthy

• Publisher: Manchester University Press
• Year: 2013
• Print ISBN: 9780719081811
• eBook ISBN: 9781847795007
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: International Relations
• Index: Politics & International Relations

A collection of essays and responses from diverse contributors united in original examination of the intersection between incarceration and human rights. What do human rights concerns dictate about the practices that we tolerate in places of incarceration? And conversely, what can prisons, their hard facts and the ideas underpinning them, tell us about human rights? The book offers a diversity of voices: from the inside view of Her Majesty's Inspector of Prisons to the words of a poet and former political prisoner; from an international policy overview of abuses of the mentally ill to a socio-economic reading of race and class in prisons. This range of approaches offers a uniquely rounded view of the topic, while each contributor's eminence in their field gives great depth of expertise.

Part I

Behind bars

1 Anne Owers
Prisons inspection and the protection of human rights¹

This essay is about why independent inspection of places of custody is a necessary part of human rights protection, and how that independence is manifested and preserved in practice.

In this society, incarceration is the highest penalty that the state can impose – and, increasingly, that is the case in many countries of the world as international pressure to abolish the death penalty grows. The expansion of the Council of Europe and the insistence that all new member states, when they sign up to the European Convention on Human Rights, also accept Protocol 6, which outlaws capital punishment, have hugely extended this area. But it has also thrown into even greater prominence the need to monitor and examine conditions in custody, in states that have limited resources but are now finding themselves holding more prisoners, and for much longer terms.

Within the Council of Europe, the role of the Committee for the Prevention of Torture (CPT) has been crucial. It is independent of states parties and has the power at any time to go into any place of custody in any member state. It reports to the state authorities on the treatment of those detained. Though those reports are not made public, states must make a response – and risk action at the European Court of Human Rights if there are significant breaches of its key articles, particularly the prohibition on torture and inhuman and degrading treatment.

The notion of independent monitoring of places of detention has acquired even more extensive international underpinning. In June 2006, the new Optional Protocol to the UN Convention against Torture (Opcat) came into effect, having acquired a sufficient number of signatories – including the United Kingdom, which was one of the first to sign up.² It approaches monitoring principally from a domestic, rather than an international, perspective. It requires each state party to have in place an independent ‘national preventive mechanism’ which can regularly visit and report on all places of detention. The international mechanisms to ensure compliance are more limited than the European ones: there is no court with overarching jurisdiction, and only a committee of experts with few resources, reliant on information from, and the vigilance of, domestic bodies.

The UK was able to sign up to Opcat very swiftly because we already have in place a robust and independent domestic system for inspecting prisons and most other places of custody. The principal mechanism for this is, of course, the Prisons Inspectorate. Set up in its present form in 1981, it now has statutory responsibility for inspecting prisons and young offender institutions (YOIs) in England and Wales and all places of immigration detention within the UK. It acts under the statutory authority of the Chief Inspector of Criminal Justice in Northern Ireland to inspect prisons and YOIs there too. By invitation, it also inspects the Military Corrective Training Centre (the armed services’ only central detention centre), and prisons in the Channel Islands and Isle of Man. Moreover, we are currently working with colleagues in the Inspectorate of Constabulary to develop a methodology and mechanism for regular inspection of police custody suites (as we are with Courts Inspectorate colleagues in relation to court cells). Other bodies – the Mental Health Act Commission and Ofsted, respectively – are responsible for inspecting secure mental hospitals, and secure training centres for children. Independent monitoring, on a regular basis, is also carried out by local independent monitoring boards (IMBs), which are groups of volunteer citizens with the right of entry into their local prison. Their continuous presence provides a valuable complementary role to inspection.

We hardly need reminding why international and domestic law places such importance on independent and regular inspection of all places of detention. They operate out of sight, and often out of mind, of the public. They are places where power is with the custodian, not the detainee; and where detainees are dependent on the humanity of their custodians for everything, from small dignities (for example, being able to have a pillow or toothbrush) to freedom from abuse (intimidation or even physical violence). We have seen examples of the latter in our prison system, most acutely in the events at Wormwood Scrubs during the 1990s; and, though it is rare, I have come across examples, particularly in segregation units, where prison managers have not been sufficiently alert to abusive cultures or behaviour.

Abuse, or a lack of humanity, need not be planned or deliberate. Because they operate behind closed doors, prisons and places of detention can develop ways of behaviour that come to be accepted as normal because that is the way things have always been done. All institutions have a default setting of convenience, and it is all too easy for places of detention to reflect the convenience of staff, rather than the needs of detainees. Prisons, too, rightly focus on security: the task of keeping prisoners in, and running prisons safely. But ‘security’ can all too often be an all-purpose excuse for saying no. A ban on nail clippers at Harmondsworth immigration removal centre was one example of that; another was a prison where prisoners were denied plugs for their sinks (where they often had to wash themselves) in case the chains could be used as weapons. No risk assessment or security analysis had been done in either case: it simply made prison or custody officers feel more comfortable – and more in control.

Protecting the human rights of those detained is obviously central to independent inspection. But there is also a broader human rights perspective. It has been suggested that human rights and public protection are in opposition to one another; and that over-concern with human rights can result in damage to the safety of the public. I would very strongly refute that. Public protection – the ability of people to live in safety, without threats to their life and well-being – is itself a core human right. The state therefore has a positive duty to do all it can to protect the life and human dignity of the public, as well as prison staff and prison officers. That means that prisons must be safe places which contribute actively to public protection, by making it less, rather than more, likely that those incarcerated will reoffend once released.

The Prisons Inspectorate and its work

My Inspectorate has developed four human rights based tests of what we call a ‘healthy prison’. First, prisoners, even the most vulnerable, should be held in safety. Second, all prisoners should be treated with respect for their human dignity. Third, they should all be able to engage in purposeful activity, which provides essential skills and training. Finally, they should be prepared for resettlement back into the community. The first two are primarily about the safe and decent treatment of prisoners (and prisons that are unsafe for prisoners are often unsafe for staff too). The second two in addition address the effective protection of the public in the longer term. We have found that these tests, suitably adapted, can be used to assess the health of all custodial environments, wherever they are and for however short a time people are detained there.

In making assessments of how well establishments are performing against those tests, we do not rely on the standards of the inspected organisation: whether that is the public sector Prison Service, a private sector prison run under contract, or an immigration removal centre. We have developed our own criteria, called Expectations, which are based on best practice and human rights standards, and which set out in detail what we expect to find in every area of custodial life, from reception to resettlement, from family visits to segregation.³ We have separate Expectations for juveniles (aged under eighteen) and for immigration detainees. This is one important pillar of our independence. It means that we are judging places of detention against what is right, rather than what can be immediately achieved. For example, in our overcrowded prisons, we will often find two men sharing a cell meant for one, with an unscreened toilet where one of them has to sit to eat meals, and where they may spend twenty-three hours a day. The Prison Service does not want to hold people in those conditions, but at present it has no choice. But unless we continue to point out that it is not decent or right, there is a real danger that what has become normal will be accepted as normative.

All our inspection reports are published, in full.⁴ And the timing and the content are matters for me alone. There are two other important pillars of our independence. One is the right, at any time and without warning, to go into any place of detention and to have immediate access to all those held there. Inspectors carry their own keys, and are not chaperoned as they go around. They can talk in private to prisoners, detainees and staff, read every document, and observe everything that goes on. Over half of our inspections take place without warning. This is a vital power – not least because, while a small team cannot carry out inspections as often as we would like, each governor in the country knows that tomorrow could be the day when the Inspectorate turns up.

Secondly, we carry out confidential surveys of those being detained, asking them about all aspects of life in custody. We now have an extensive database, so that we can compare one establishment with others of a similar type, or with the responses we got when we last inspected it. Prisoners’ views are not always right, but it is noticeable how often prisoners have an accurate picture of their place of detention, its strengths and weaknesses; and if they have a poor perception, it is important for managers to find out why. It is gratifying that the Prison Service, which was initially very opposed to such surveys, now carries out a qualitative exercise with prisoners, called measuring the quality of prison life, as part of each of its own internal standards audits.

Let me address each of our healthy prison tests in turn, with some examples of the things that inspections have found, and that the Inspectorate has tried to change.

Once the state takes someone into custody, it acquires a positive duty of care for their safety. That means trying to ensure that they are safe from others (whether other prisoners or staff) and also that they are safe from themselves (from the risk of self-inflicted death or serious harm). Levels of suicide and self-harm have been high in prisons, reflecting the imported vulnerability of many of those who enter prisons, but also the increased vulnerability that can result from incarceration itself. When I took up the position as Chief Inspector of Prisons in 2001, suicides in prison were running at about two a week; and a disproportionate number were women. It is worth reflecting on the background of many of the women (and men) who end up in prison. It is estimated that between 70 per cent and 80 per cent suffer from some form of mental disorder; and about the same proportions will have substance abuse problems, including hazardous levels of drinking. The two are not unconnected.

Women have other significant problems: around one in ten will have attempted suicide; half say they have experienced domestic violence and a third, sexual assault. They also have a range of factors that mean that prison exacerbates that vulnerability. Two-thirds are mothers, and half are primary carers of children under sixteen. For eight out of ten women this will be their first serious separation from their children; unlike men, only 25 per cent can expect their partner to look after them, and a third will lose their home (and therefore their possessions and probably their children) while in custody. They are much more likely than men to be held at a considerable distance from home, the more so now that women’s prisons are being redeployed to hold men because of population pressure.

Suicide prevention has been a major focus of the Inspectorate. In 1999, we published a thematic report, ‘Suicide is everyone’s concern’, which argued for a whole-prison approach to supporting the most vulnerable. Many of the key recommendations in that report have now been implemented. The Prison Service has put in place a more proactive and multi-disciplinary process for supporting potentially vulnerable prisoners. A great deal of effort has also gone into providing support during the crucial early days of custody, when suicides are most likely to happen: partly because of the shock of imprisonment, and partly because a majority of prisoners are withdrawing from addictive drugs. Many prisons have now put in place first night centres, where new prisoners’ individual needs can be assessed and support can be given. We inspect them closely – and we are less than impressed by prisons which imagine that putting up a notice saying ‘first night centre’ is all that is needed, while prisoners are put in filthy cells, without adequate bedding, and with no opportunity for one-to-one discussion with staff or trained prisoners.

Detoxification in prisons has also improved considerably. We no longer find, as we did at Styal in 2002, that women are fitting and vomiting in their cells as they withdraw from drugs. But it needs to be noted that between that inspection and the eventual implementation of proper first night and detoxification procedures at Styal, six women died, all in the early days of custody and all with histories of drug addiction.

The suicide rate in prisons has, thankfully, dropped, despite significant rises in the prison population. In 2006 there were 63 self-inflicted deaths, compared to 104 in 2004; and crucially far fewer of them took place within the first seven days (only 8 per cent, compared to 32 per cent). That is an example of how inspection, allied to the willingness to change of those being inspected, can change things. However, there are a couple of caveats. First, the levels of self-harm, particularly among women, remain high. Women are only 5 per cent of the prison population, but they account for 52 per cent of all incidents of self-harm. Moreover, 31 per cent of those incidents involve young women under twenty-one, who are only 1 per cent of the female population. In one women’s prison, there were around six self-harm incidents a day. They could include horrific and repeated acts – like the young woman who not only opened her veins but inserted biros into them. Sometimes prisons have resorted to desperate measures to prevent self-harm escalating into death, such as putting women in strip clothing in unfurnished cells. That does nothing, however, to tackle the underlying causes of self-harm; it merely postpones its occurrence. Interestingly, the women’s prisons with the lowest incidence of self-harm are also those with the highest levels of activity, and the best staff–prisoner relationships.

Second, the continuing alarming rise in the prison population makes it all the more difficult to support vulnerable prisoners properly, particularly in the crucial early days. The throughput of prisoners in busy local prisons – sometimes a hundred a day – makes it hard to identify the vulnerable, or indeed those who may be risks to other prisoners when, inevitably, two strangers are locked up in the same cell. More prisoners are held further from home, with long journeys: at one juve...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Preface
• Foreword
• Notes on contributors
• Introduction
• Part I: Behind bars
• Part II: Beyond the prison
• Index