Thu, 26 Mar 2020
This article is part of the Prison law during the coronavirus pandemic series:
Across the world urgent steps are being taken to reduce the death toll that Covid-19 (coronavirus) is going to take in the context of penal institutions. There are legitimate concerns as to the impact of any outbreak entering a prison for:
(a) the general prison population and staff; and
(b) those who fall into vulnerable categories, due to age or pre-existing medical conditions, rendering the virus likely to be more severe or life-threatening to them.
In some countries, those deemed either to be at a high risk to their health or to be at lower risk of offending or causing harm have already been released – including in Iran (on home detention curfew with electronic monitoring), and in New Jersey in the USA. So far there has been no indication of any blanket release of any categories of prisoner in the UK, though 300 immigration detainees (who are not serving sentences) have been released from Immigration Removal Centres.
The government says that “Prisons have been working closely with Public Health and NHS services to put robust contingency plans in place”. What those plans extend to is unknown, though there are hints some increased use may be made of Home Detention Curfew.
There are existing provisions that enable releases to be made early from British prisons. These have historically always been applied for on the basis of an individual’s need, but the level of public emergency now being declared may mean that needs to be reconsidered.
The present provisions are:
- Early Release on Compassionate Grounds (ERCG) for a determinate (fixed-term) prisoner (including extended sentences). By section 248 of the Criminal Justice Act 2003 there is “Power to release prisoners on compassionate grounds”. The Secretary of State may at any time release a fixed-term prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner's release on compassionate grounds. This provision does not require consultation with Parole Board before releasing.
- ERCG for an indeterminate sentence prisoner is provided for by section 30 of the Crime (Sentences) Act 1997. This provides that the Secretary of State may at any time release a life prisoner (which includes ‘IPP’, imprisonment for public protection prisoner) on licence if he is satisfied that exceptional circumstances exist which justify the prisoner's release on compassionate grounds. There is a requirement that – if he is minded to release – before releasing a life prisoner the Secretary of State consult the Parole Board, unless the circumstances are such as to render such consultation impracticable.
- Finally, there is also the Royal Prerogative (of mercy). This power is also exercised by the Secretary of State.
There are policies concerning the exercise of the statutory ERCG powers which accept Early release on compassionate grounds may be considered on the basis of a prisoner’s medical condition or as a result of tragic family circumstances, but of course they do not address a situation such as created by coronavirus. However the law has already established that the statutory powers are only limited to “exceptional circumstances” and not restricted to the types of situation that the policies cater for: R (Bruton) v SSJ  4 WLR 152.
Usually the exercise of the powers has had as a principal concern whether the release of the prisoner will not put the safety of the public at unacceptable risk. To what extent that can be said to be determinative when faced with the threat of death or serious injury being at a significant level in a prison where an outbreak has occurred is yet to be seen.
It has been recognised by the European Court of Human Rights that compassionate release may legitimately serve the purpose of allowing for a release to avoid a breach of Article 3 of the European Convention on Human Rights (protecting against inhumane or degrading treatment). That was in the context of whole-life orders for life sentences, but on principle the exercise of any power of release must be compliant with the protective obligations of the state towards its prisoners (and staff working within the prisons).
If you are concerned about yourself, a family member, or a prisoner in your medical care or the care of your prison, we are available to offer expert advice on what might be done to secure the welfare of the individual through the exercise of the powers of the Secretary of State and/or through urgent court actions to secure decisions.
Philip Rule, Head of Public Law, No5 Barristers' Chambers Chambers
Ian Brownhill, Deputy Head of Public Law, No5 Barristers' Chambers.
Stuart Withers, Barrister
Benjamin Harrison, Barrister
Avril Rushe, Barrister