In December 2007 Minister of Justice Jack Straw published the Lord Carter Review of Prisons and announced plans to build yet more prisons and create 96,000 prison places in England and Wales by 2014. Nicki Jameson reports.
Lord Carter – Labour’s peer of choice
Labour peer Lord Patrick Carter of Coles is one of the government’s favourite chairs of review committees, advising the Labour Party over the last five years on everything from the Commonwealth Games and Wembley Stadium to Payroll Services, Criminal Records Bureau, Offender Management, Public Diplomacy, and Pathology. He is hated by lawyers for his review of the legal aid system, which has paved the way for the government to make sweeping cuts to the provision of free legal representation and advice to the poorest people in society.
Carter is a businessman, who in 1985 founded private health provider Westminster Health Care, which he then sold in 1999 to Chaitanya Patel, one of the Labour Party donors investigated in the cash for honours scandal in 2006. He is an old buddy of Jack Straw and was best man at his wedding.
Carter’s review is entitled Proposals for the efficient and sustainable use of custody in England and Wales. It was carried out behind closed doors and it is very unclear who was consulted, although the Prison Governors’ Association and Chief Inspector of Prisons have complained that they were not.
The key announcements made by Straw as a result of Carter’s recommendations relate to increasing capacity in the system and building more prisons. In response to massive overcrowding and the exposure by legal challenge of systemic failure in its sentencing structure, the government has also been forced to announce some sentencing changes.
Indeterminate Sentences for Public Protection
Since coming to power in 1997, Labour has introduced over 3,000 new criminal offences. In its early years in government it brought in electronic tagging and Anti-Social Behaviour Orders, breaches of which result in imprisonment, as do breach of probation, drug testing orders or parole or non-parole licence conditions. However, the greatest change came in the 2003 Criminal Justice Act which contained wholesale changes to prison sentencing. This came into force in April 2005.
Almost everyone sentenced to imprisonment for a violent or sexual offence now receives an extended sentence, an Indeterminate Sentence for Public Protection (IPP) or a discretionary life sentence. IPPs are in themselves virtually indistinguishable from life sentences and the courts are required to give them to anyone convicted of an offence for which the maximum penalty is ten years or over and whom it has assessed as potentially dangerous, irrespective of the facts of their individual situation. The gravity of the specific offence committed is then reflected in the length of the minimum term, ie the part of the sentence which must be served in custody before release can be granted. In general these periods are short – the median length IPP tariff as of April 2006 was 30 months. They are reminiscent of the most punitive type of US sentencing. Black revolutionary prisoner George Jackson was sentenced to serve a ‘one-year-to-life’ prison sentence. By the time he was murdered by the state in San Quentin prison in 1971 he had been behind bars for 12 years.
Release at the end of the minimum term is not mandatory but at the discretion of the Parole Board. By September 2007 only 13 IPP prisoners had been released. The Parole Board will only grant release if it is shown ‘evidence’ that the prisoner presents less of a risk of committing a similar offence than s/he did when sentenced. This almost always takes the form of ‘offending behaviour courses’ completed in prison. However, due to overcrowding, bureaucracy and too few places on these courses, many prisoners stand almost no chance of having completed them by the time they come in front of the Parole Board.
For example, Nicholas Wells was convicted in 2005 of an unsuccessful robbery attempt on a taxi-driver and given an IPP with a 12-month tariff. The papers were not even prepared for the Parole Board to consider until six months after the tariff had expired, and when the Board did finally look at his case in May 2007 it concluded he could not be released as he had not taken the required courses, which were not even available in the prison he was in.
A judicial review application by Nicholas Wells and another prisoner in a similar situation took place in June 2007. The court heard that in the year after the implementation of the CJA 2003 sentencing changes, the number of prisoners serving life sentences (including IPPs) in England and Wales increased by 31%, yet an official from the Public Protection Unit in the National Offender Management Service gave evidence that the legislation had been expected to be ‘resource neutral’ and no extra money had been allocated to fund all the courses that were needed. The court found that circumstances in which the mandatory custodial element had expired and a prisoner was kept in gaol on the basis that he posed a continuing risk, but in which it was impossible to work towards changing that risk or meaningfully assess if it had been changed, could amount to arbitrary, unreasonable and unlawful detention.
The government is appealing against the verdict. How ever, in a bid to head off further legal challenges, Straw announced that the law would be changed to ensure that only those whose minimum term would be two years or more will receive IPPs in future. This has now been incorporated in the Criminal Justice and Immigration Bill, which is currently going through parliament.
Determinate sentence prisoners
Straw also announced that prisoners convicted under the 1991 Criminal Justice Act to determinate sentences of four years or more for non-violent, non-sexual offences will have their sentences brought in line with prisoners sentenced under the 2003 CJA. Currently CJA 1991 prisoners have to apply for parole at the half way point in their sentence; if refused they have to serve up until the two-thirds point. CJA 2003 prisoners are released automatically after half their sentence.
The downside to the proposal is that those released will then be on licence, and therefore living in fear of recall for the smallest thing, for the whole of the remaining part of their sentence, instead of only up to the three-quarter point, which was the case for them previously. This is very likely to be challenged in the courts.
Building more prisons
When the Carter report was published, some in the media and Conservative Party fumed about the suggestion that future sentencing policy should take into consideration prison capacity, as though this meant that thousands of violent criminals would now be released who should otherwise be in prison for want of available space. However the ‘lock ’em up and throw away the key’ brigade have nothing to fear. Carter proposed and Straw agreed to the rapid building of new prisons on ex-military bases, in particular the MOD base at Coltishall, Norfolk, the conversion of the open prison at HMP Wealstun into a closed prison and the commissioning of a new prison ship. (It is only three years since the Prison Service decommissioned HMP Weare, the last prison ship.)
In addition it is proposed to build new blocks on existing prison sites, increase capacity, reduce cells out of commission and bring forward existing projects. In the managerial speak of Carter’s report he talks of ‘extending existing operational flexibility in population density’ and reviewing ‘the current key performance indicator on overcrowding to allow for greater operational flexibility’. In plain English this means cramming more prisoners into each small cell.
Straw announced a ‘new for old’ strategy, claiming that ‘smaller and older’ prisons would be closed as new ones are built. In reality it is highly unlikely any will close unless they are in areas such as north London where their sale would be extremely lucrative. Instead new prisons will be built to accommodate more male prisoners and some older ones converted to house women or children.
Clash of the Titans
Most frightening of all is the announcement of the building of three new ‘Titan’ prisons, housing around 2,500 prisoners each. According to Carter each of these mega-prisons would comprise five living units of 500 men from ‘different segments of the prison population’. The prisons would be built on ‘cost-effective designs’ with ‘optimal sight lines which would result in better staff utilisation’, ‘centralised support services’, ‘economies of scale in the capital cost outlay with standard design allowing offsite prefabrication construction’ and ‘new technology built into the fabric of the building (for example biometric scanning, bar coding, electronic door operation)’. Each Titan prison is to have an in-built court.
Carter does not dwell in detail on whether these enormous prisons are to be state or privately run, but does say they will ‘provide an opportunity to incentivise modernisation of working practices and stimulate a competitive market through a large-scale building programme’ and there is a general emphasis throughout the report on the ‘marketisation’ of the prison system, with ‘service level agreements with public sector prisons [to be] put on a similar footing to the commercial contracts currently in existence between the government and private sector’. He is also quick to point out that the government can bypass normal planning permission procedure in order to get the new gaols up and running, and envisages their completion within five years.
Labour’s clampdown
Since Labour came to power in 1997 the prison population of England and Wales has increased from 61,000 to 79,700. In Scotland it rose from 6,000 to 7,215. Out of every 100,000 people, 148 in England and Wales and 142 in Scotland are now in prison. This compares to 93 per 100,000 in Germany and 85 in France. On 23 November 2007 the total UK prison population was 90,248. Britain has more life sentenced prisoners than Germany, France, Russia and Turkey put together. Despite the lip-service paid by Carter to the idea that ‘custody should be used as a last resort when dealing with female offenders’ and that ‘many non-dangerous offenders with mental health or drug problems may receive better treatment and rehabilitation outside of prison’ there is no suggestion from any quarter that Gordon Brown, Jack Straw and their government are in any way going to cease treading the path towards more imprisonment.
Paul Mallon
FRFI 201 February 2008 / March 2008
