Some people may assume that criminal barristers have some special insight into what goes on in our prisons. Yet although we spend a great deal of time and effort trying, as cheerfully as possible, either to put people into prison or to keep them out, most of us have little idea of what prisons are really like. We may visit prisons from time to time for conferences, or, less often perhaps, for disciplinary or Parole Board hearings. But neither an hour or two chatting optimistically to a client in a stuffy conference room, nor three hours supping the befuddling soup of parolespeak acronyms – NOMS, OASYS, MAPPA – that washes over byzantine Parole procedures give much idea of what months or years of incarceration would actually be like.
We get some impressions. People are often surprised to find that prisons differ from each other almost as much as schools. The campus-like Ford Open Prison, with its well-kept lawns (though it might be stretching it to call them “manicured”) and public school style cricket pitch has a very different atmosphere from a glowering inner city gaol such as (to name one I happen to be familiar with) Bristol. One suspects that the inmates of Ford, with a high proportion of fraudsters and three-quarters-rehabilitated murderers are also, on the whole and give or take the odd riot, a bit less rumbustious than the bruisers and low level drug dealers to be found in your bog standard local gaol.
We can of course read the accounts of former prisoners. Jeffrey Archer is just one of many who have turned their prison sentences into literature. For more up to date information we can read the excellent Inside Time prisoners’ magazine. But such second-hand experience is of little help unless we also apply our imaginations to the sheer hell that imprisonment for any length of time can produce. The boredom, the misery, the pointlessness of it all, to say nothing of the disgusting food and the smells of hundreds of “male farts crammed into concrete boxes” as one recent correspondent to Inside Time put it; or the violence that always lurks just below the surface and sometimes breaks out horribly: a scalding with sugar syrup (it not only boils at a higher temperature than ordinary water, it also sticks to the skin far more effectively), or an early morning torture session locked in a cell with an ingenious psychopath armed with a cigarette lighter.
That is not to say that prison is always and inevitably a personal catastrophe for every prisoner. I have had at least one client whose life was, I think, saved when prison doctors discovered and treated a depressive illness which had led him repeatedly to attempt suicide, sometimes (this was why he was imprisoned) by arson. But it is hard to believe that in the vast majority of cases prison achieves anything beyond the brutalisation of prisoners at considerable public expense. For every inmate whose mental illness is effectively treated there are many others whose mental health worsens.
Nevertheless, as the prison population continues its inexorable rise, Mr Grayling the Justice Secretary is unapologetic: “we make no apology for sending more criminals to prison because that is what the public wants.”
It is not clear how he knows what “the public wants.” It depends entirely upon the question it is asked. If it is “should more criminals be sent to prison?” you will get one answer. If the question is “should non-violent criminals with mental health problems be given community sentences ?” you will get another. If you ask should child murderers and/or paedophiles be hanged you will get a third. And if the question is “should this particular defendant receive a prison sentence or be ordered to do unpaid work for the community?” the public tends to be rather softer than the judges and very often does not want the criminal to go to gaol at all. In any case, what the public wants, even if it could be discerned, is not necessarily right or sensible; it is not the job of our leaders blindly to follow public opinion, it is their job to lead it, something the dreary Mr Grayling has signally failed to do, although perhaps we should be grateful for that.
It is also rather unclear quite who the “we” are who are courageously not apologising for doing something they believe to be popular. Fortunately neither Mr Grayling nor his honour-festooned and maladroit Permanent Secretary Dame Ursula Brennan have any direct say in who actually goes into our prisons, and only a nominal say in who leaves them. There are numerous things that they could apologise for; their plans to emasculate the legal aid system for example, or a disastrous, self-defeating attempt to save money on interpreters that has succeeded only in channelling large sums of money to Capita PLC while impoverishing the public purse, professional interpreters and the administration of justice – but sending more people to gaol is not one of them. It is true that the coalition government as a whole has invented various new criminal offences for which people can be gaoled, such as dealing in scrap metal for cash, but hardly on a scale which can yet have made much significant difference to the prison population.
But while Mr Grayling may have only a very indirect responsibility for who goes into prison, he has direct responsibility for how they are treated once they are inside and for this he should apologise.
In 1991 one of Mr Grayling’s predecessors as the minister in charge of prisons, Kenneth Baker, set out how the government should operate its prisons:
“It is not the purpose of the prison system to provide physical conditions that degrade and humiliate prisoners and strip away their self-respect.
Prisons should be places that are austere but decent, and provide a busy and positive regime which prepares criminals for their ultimate release.”
Mr Graying appears to disagree.
His policies have led directly to prisons becoming seriously, and in some cases dangerously, overcrowded. He has authorised the closure of gaols – Dorchester, Northallerton, Blundeston and Reading- that could by remaining open have avoided, or at least mitigated this.
There is no penological justification for overcrowding. When there are insufficient staff to provide for educational or other constructive activities then any hope of rehabilitation is hooey. Prisons become simply warehouses of human misery. When 1000 prisoners are packed into a building which the Prison Service – an agency of the Ministry of Justice – has certified as fit to hold only 700 in decent conditions, something has gone badly wrong. It is no answer to point out, as Mr Grayling did today, that during some periods of the last Labour Government they suffered slightly higher levels of overcrowding. It was unacceptable then, and it is unacceptable now.
The effects are showing. A high proportion of the prison population consists of people with mental health problems or serious personality disorders. An astonishing 70% of the prison population suffers from two or more mental disorders. Almost anyone sent to prison will suffer appalling stress and the mentally unstable will suffer it more than most. The more crowded the prison, the more they will suffer. Huge numbers will self-harm, some will try to kill themselves and some will succeed. Suicides in prison have soared since Mr Grayling took over responsibility for prisons, with 2013 recording 70 suicides, the highest number for 6 years. He cannot be blamed for all of them, of course, but he has done little to reduce the suicide rate; all we have is this repulsive gloating about how more people are being sent to prison and being treated more harshly once they get there, two things that are almost bound to result in more prison suicides.
But it is not only the mentally ill who are paying the price of Mr Grayling’s policies. Every prisoner is feeling the effects of overcrowding. According to the Chief Inspector of Prisons “the quantity and quality of purposeful activity in which prisoners are engaged has plummeted in 2012-13”, while Eoin McLennan-Murray, President of the Prison Governors’ Association has warned that the harsher Incentives and Earned Privileges (IEP) scheme is leading to a ‘tipping point’ of instability. Mr Grayling has, of course, made a more severe IEP scheme, including the controversial ban on prisoners receiving parcels, a central part of his prison policy.
In 1990, under a previous Conservative government, Strangeways Prison in Manchester erupted in an orgy of violence and destruction. Lesser, though still serious, riots broke out in other prisons. So alarming was the violence that the government ordered a full judicial inquiry under one of the country’s most distinguished judges, Lord Justice Woolf. His findings were unequivocal: one of the main causes of the rioting was severe overcrowding, and one of his key recommendations was that “no prison should hold more prisoners than provided for in its certified normal level of accommodation, with provisions for Parliament to be informed if exceptionally there is to be a material departure from that rule.”
The term “certified normal accommodation” (CNA) is not plucked out of the air. It is the Prison Service’s own measure of accommodation that (according to the Prison Service Circular PSI 17/2012) “represents the good, decent standard of accommodation that the Service aspires to provide all prisoners.” It means, for example, that a prisoner should be able to use a toilet in a separately ventilated cubicle screened from other inmates.
In Parliament yesterday Mr Grayling insisted:
“We do not have a prison overcrowding crisis. Today’s prison population is 85,359. This is against total usable operational capacity of 86,421, which means we have more than 1,000 spare places across the prison estate.”
This is a statistical sleight of hand, of the sort that one has, sadly, come to expect from Mr Grayling. The phrase total “usable operational capacity” refers to the absolute maximum that the prisons can hold if prisoners are held in conditions that the government itself accepts are not of a “decent” standard. If prisoners are held in revolting conditions in which, for example, they are forced to defecate in shared cells in view of their cell mates, something that is permitted when they are being operated over CNA, Mr Grayling should not be surprised if the prisons erupt in rioting again. Little wonder that Nick Hardwick the mild mannered and moderate Chief Inspector of Prisons has described the situation as “dangerous” and pinned the blame squarely on “political and policy failures.”
And since he seems so remarkably complacent, Mr Grayling should be aware of another precedent. In March of this year in the case of Badre v. Court of Florence EWHC 614 (Admin) the Administrative Court refused to extradite a suspected criminal to Italy partly on the grounds that Italian prisons were so grossly overcrowded that to imprison someone in them would constitute “inhuman and degrading treatment.” According to the evidence before the Court Italian prisons had a national overcrowding rate of 151 – 148%. How does that compare with this country? We have not quite reached that degree of crisis, and the definition of “overcrowding” obviously differs somewhat between Italy and Britain. Even so the figures appear comparable. Last week the UK prison population exceeded its certified normal accommodation by 9,464 inmates, equivalent to an overcrowding rate of 112.5%. But some prisons were overcrowded to an extent that would make Italian prisons look almost attractive by comparison. Swansea prison, for example, was at 184% over CNA, Lincoln 172%, Wandsworth 169% and numerous others had populations at 150% or over.
The courts have accepted that forcing prisoners to live in overcrowded conditions can amount to inhuman and degrading treatment. There is now a strong case for saying that the Chief Gaoler himself, the Minister of Justice, should be brought before the court and made to explain to a judge how he can justify treating human beings like canned anchovies. It will be no answer to spout populist slogans about “doing what the public wants.” The law, as well as common decency, requires him to do better than that.