The state of prisons in England and Wales

Dostoevsky, in The House of the Dead, wrote: “The degree of civilization in a society can be judged by entering its prisons,” a phrase often wrongly attributed to Winston Churchill, who in fact said that a society's attitude to its prisoners is the measure of "the stored up strength of a nation". Were Dostoevsky or Churchill to enter the prisons of England and Wales today, their view of society would likely be low indeed.

On 12 October 2023, Lord Justice Edis (the senior presiding judge for England and Wales) announced that from 16 October, the sentencing of those convicted but on bail pending sentence should be delayed. Whilst that may temporarily curtail the ever-rising prison population, it does not solve the problem in the long term. Nor does it ease the backlog of cases before the courts that has resulted in some trials not being listed before 2026.

Overcrowding

The prison estate in England and Wales is bursting at the seams. In some places it has already burst. Chronic overcrowding, coupled with chronic understaffing, has resulted in some prisoners being locked in their cells for up to 23 hours a day. Such confinement in antiquated, Victorian-era prisons, where conditions of detention are poor, could find the UK held in breach of Article 3 European Convention on Human Rights, which prohibits inhumane and degrading treatment.

Yet rather than fixing the prison population problem, Alex Chalk KC announced on 3 October 2023 plans to outsource the responsibility for housing surplus numbers of prisoners to prisons in EU states “provided the facilities, regime and rehabilitation provided meets British standards.”

Chalk added that the ‘rent a cell’ proposal “will require that conditions [in rented foreign prisons] are to the same standard as prisons in England and Wales”, inferring that somehow the prisons in England & Wales were superior to their EU counterparts.

In 2021, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), a specialised independent monitoring body of the Council of Europe, visited the UK. Its conclusions lead to a very different inference than the one Chalk was seeking to draw, highlighting as they do “…the clear need for modern decent prisoner accommodation and … [the]  number of Victorian and other older establishments which are in constant need of costly refurbishment and yet remain neither functional nor fit for purpose.”

Need for improvements

But overcrowding and conditions of detention have not improved since the CPT’s last visit. In March 2023, the Karlsruhe Higher Regional Court in Germany refused extradition to the UK of an Albanian national, whom the UK wanted to stand trial for allegations of drug trafficking and money laundering offences. The German court’s decision was based, in part, on evidence that HMP Wandsworth, in south London, was dangerously overcrowded, holding 1521 prisoners despite a capacity of just 950 (160 per cent occupancy).

In contrast, when it visited the Netherlands in 2022, the CPT reported that 8,535 persons were detained in a prison estate with an operational capacity of 10,146 places – a prison occupancy level of 84.1 per cent. Although this figure was set to rise, it was noted that the practice of renting Dutch prisons to Belgium and Norway had ended.

Given the German court’s finding in respect of the (inhuman and degrading) conditions found in our prisons, any prisoner in England and Wales potentially subject to the transfer scheme envisaged by Mr Chalk would undoubtedly hope that the same conditions of detention were not insisted upon.

The UK must go beyond outsourcing to foreign prisons and reducing custodial sentences for lower-risk offenders if it is to improve the conditions of detention for those serving sentences of imprisonment. If modern day society is to be judged through the prism of the words of Dostoevsky and Churchill, much more must be done to make humane what is currently inhumane.

Edward Grange is a partner at Corker Binning