Joint Committee On Human Rights Third Report

4 Prison overcrowding and sentencing

87. It has become clear to us in the course of this inquiry that the levels and characteristics of the detained population are inextricably bound up with the high levels of deaths in custody, and in particular in prison. Overcrowding in the prison system undermines the many initiatives taken to address the vulnerabilities of prisoners at risk of suicide and self-harm. Whilst the detail of sentencing practice is outside the scope of this report, the fact that too many highly vulnerable people are being cared for not in the community, but in prison or police cells, which are not appropriately equipped to take on the role asked of them, is at the root of the problem of Article 2 compliance.

88. It is clear to us from our inquiry and prison visits that many highly vulnerable people are being imprisoned unnecessarily, for minor offences. Detentions of already very vulnerable people confront an ill-resourced and overcrowded prison service with a formidable task in ensuring prisoners' safety. Ensuring prisoner safety is a fundamental responsibility of the state under Article 2. It is difficult to see how this is being upheld when the state continues the bad practice of sending such vulnerable people to prison for minor offences. Indeed, this represents a systemic failure to positively promote and enforce the human rights of these people and grave failure by the state to fulfil its positive obligations under the ECHR.

Characteristics of the prison population

89. Many prisoners, notwithstanding their imprisonment, have a number of characteristics which mark them out as being at disproportionately high risk of self-harm or suicide. In their written evidence to us, the Prison Service stated that—

90. This is certainly supported by research evidence. The Social Exclusion Unit's report 'Reducing Reoffending by Ex-prisoners' found that—

  • 72 per cent of male and 70 per cent of female prisoners suffer from two or more mental health disorders—14 and 35 times the level in the general population respectively. 95 per cent of young prisoners aged 15 to 21 suffer from a mental disorder, 80 per cent suffer from at least two.
  • 40 per cent of male and 63 per cent of female sentenced prisoners have a neurotic disorder—over three times the level in the general population
  • 7 per cent of male and 14 per cent of female sentenced prisoners have a psychotic disorder—14 and 23 times the level in the general population respectively
  • 64 per cent of male and 50 per cent of female sentenced prisoners have a personality disorder—12 and 14 times the level in the general population respectively
  • 20 per cent of male and 15 per cent of female sentenced prisoners have previously been admitted to a mental hospital
  • Nearly 10 per cent of female sentenced young offenders reported already having been admitted to a mental hospital at some time[76]

91. These factors increase the likelihood of self-harm and suicide and indeed self-harming and suicidal behaviour often pre-date custody and may have started early in life. Statistics show that 20 per cent of sentenced men and 44 per cent of women on remand report having attempted suicide in their lifetime.

92. We found broad agreement that there were very severe limitations on treatment of people with mental health problems in a prison environment. Anne Owers, the Chief Inspector of Prisons, told the Committee that it was "verging on the impossible to provide the right kind of environment" in prisons for people who are seriously mentally ill because: "Prisons are not by their nature therapeutic environments. They are not places where prisoners can compulsorily be treated … "[77]

93. MIND were also quite clear about the inappropriateness and risks of holding the acutely mentally ill in prisons. They told us that: "If you are seriously ill to the extent that in any other circumstances you should be in hospital, then you absolutely should not be in prison".[78] Home Office Minister Paul Goggins MP agreed that: "Anyone who requires acute mental health care should be in hospital rather than prison".[79]

94. The words used by MIND in their oral evidence were particularly stark—

    From the evidence it appears that [people with serious mental health problems] become more ill and it would appear that people who have less severe mental health problems in prison develop more severe mental health problems. Prison appears to be a good greenhouse for developing mental health problems. (our italics)[80]

The Revolving Doors Agency told us that "Prison is not a therapeutic environment", and that "In many cases the prison environment is likely to exacerbate previously existing mental health problems".[81]

95. Mr Goggins conceded that for some people, time spent in prison could have a negative impact on their mental health, but also said that he had seen evidence that people who entered prison with significant problems could be helped while locked up. On the other hand, Health Minister Stephen Ladyman MP told us that prisons "are bound to exacerbate any underlying mental health problem" and to expose any that had not previously been spotted.[82]

96. The Royal College of Psychiatrists stated that—

    The risks to mental health … remain high. Separation from family and friends, entry into an alien environment, sudden withdrawal from drugs and alcohol, an uncertain future, loss of job and income, the rupture of many social relationships and supports, all induce mental distress and disorder. It follows logically from this that the reduction of the prison population may be the single most effective means of improving the mental health of prisoners, and thereby reducing the levels of self-inflicted harm.[83]

97. Research by Dr Alison Liebling at the Cambridge Institute of Criminology, which used the General Health Questionnaire to assess levels of mental distress in prisons, has found that in the majority of prisons the rate of distress was far above that which would be found in the community.

98. We are profoundly concerned that the prison population contains some of the most vulnerable and troubled people in the country, many of whom have a history of having attempted suicide. Prisons, however well-resourced or well-intentioned, cannot be an effective environment in which to care for mentally-ill or disturbed people who have been failed by mainstream public services.

99. More than this, the evidence we have gathered suggests that prison actually leads to an acute worsening of mental health problems. By sending people with a history of attempted suicide and mental health problems to prison for minor offences the state is placing them in an environment that is proven to be dangerous to their health and well-being. Positive promotion of a person's right to life requires that vulnerable people in the state's care are closely supervised and adequately treated. It is a sad reflection on our society that we appear to be using prison as a place to offload the individuals that are classed as too difficult for mainstream public services. By criminalising their mental illness through unnecessary imprisonment we are creating a situation where far too many people take their own lives. This is a clear example of how the Human Rights Act has not been taken out of its legal context and made relevant to courts and mainstream service provision through awareness raising of the implications for service provision that the positive obligations of Article 2 give.

Prison overcrowding

100. As the Prison Service noted, people with grave vulnerabilities which may be exacerbated by imprisonment are being imprisoned in ever greater numbers. Whilst our inquiry into deaths in custody has been taking place, the prison population has reached record levels—

101. The rapid and largely unanticipated rise in the prison population has led to the majority of prisons becoming overcrowded, despite the fact that since 1995 over 15,000 additional prison places have been provided at a cost of more than £2 billion. At the end of May 2004, 91 of the 138 prisons in England and Wales were overcrowded. At the same time, 17,000 prisoners were held two to a cell designed for one. Of even greater concern, some prisons have been so overcrowded that they have been operating at population levels that are above their operational capacity (the so-called 'safe' level of overcrowding).


102. It has become clear to us just how significant issues related to overcrowding are to the ability of the Prison Service to fulfil Article 2 obligations to protect the right to life. The overwhelming weight of evidence that we received identified the pressure of prison numbers and the resulting overcrowding and increased movement of prisoners as fundamental problems facing the Prison Service and as factors that are contributing to high levels of deaths in Prison Service custody.[85] This analysis was reinforced during the course of the Committee's prison visits to Winchester, Feltham Young Offender Institution, Holloway and Pentonville, where staff and prisoners alike expressed grave concerns about the negative implications of overcrowding on all aspects of prison life, including health and personal safety. Our visits and discussion have suggested to us that overcrowding has at times delayed and frustrated implementation of the safer custody strategy, and other initiatives to address prisoner safety and suicide prevention.

103. Overcrowding has also resulted in changes such as the re-designation of some women's prisons as male establishments to deal with increases in the number of men in prison. At Winchester prison, which we visited, a women's unit which had housed particularly vulnerable prisoners had been "re-roled" as a men's prison at very short notice, and we were told that staff had been extremely concerned for the safety of the women prisoners moved as a result of the re-designation.

104. The Chief Inspector of Prisons Anne Owers told us that overcrowding "is not the only factor [behind deaths in Prison Service custody] but it is certainly something that inhibits prisons' ability to provide a secure environment, particularly for vulnerable prisoners." Ms Owers also raised concerns that pressure on prison numbers had meant that prisoners could spend up to 23 hours a day in their cells, which "is unlikely to add to their safety and their mental condition".[86]

105. Both adults and children in prison are being affected by overcrowding. The Youth Justice Board (YJB) for England and Wales, an executive non-departmental public body which commissions and purchases places for children and young people remanded or sentenced to secure facilities, told us that—

    While there may not be firm evidence of a link between overcrowding and levels of self-inflicted deaths and self-harm, it is clear that overcrowding can destabilise establishments, limit the ability to place young people close to home, and can lead to transfers around the juvenile estate (overcrowding drafts), undermining constructive work with young people. Transfers for overcrowding can also result in young people arriving at establishments without appropriate documentation to inform assessments of vulnerability.[87]

106. The Prison Reform Trust has argued that: "There is a direct link between overcrowding and the number of suicides", and has reported that "research by the Prison Service has found that 10 of the 20 establishments that have the highest incidence of self-inflicted deaths are also in the top 20 for turnover of population".[88] But this is disputed by the Prison Service, who, in their written evidence to us, stated that—

    There is no firm evidence of a correlation between the prison population and the number of prisoners who kill themselves, although it is likely that an increase in the prison population has an impact on the amount of time staff can spend with each individual prisoner. Overcrowding may also result in an increase in the length of time prisoners are locked in their cells, rather than engaged in purposeful activity.[89]

107. While it is difficult to demonstrate direct causal links between prison numbers and deaths in custody, on the basis of the evidence presented to us it certainly appears to be the case that the combination of the sheer number of prisoners with which prisons have to deal, and the increased movement of prisoners around the system are contributing to the vulnerability of significant numbers of prisoners.


108. We found a consensus that it was not so much overcrowding in the sense of prisoners being held in overcrowded cells that was the major problem, as the resulting movement of prisoners around the country to deal with the issue—something referred to by a number of witnesses as 'the churn'. Indeed both the Director General of the Prison Service Phil Wheatley and the Prisons and Probation Ombudsman Stephen Shaw told the Committee that while overcrowding presented major problems, cell-sharing itself could be a protective factor, both because it is more difficult to take your own life if you have a cellmate who can sound the alarm and because cell-sharing means there is someone to talk to.

109. The statistics reveal the huge scale of the task facing the Prison Service in its work and in its obligation to exercise a duty of care to all prisoners. Mr Goggins told us that in 2003 there were 250,000 individual receptions into prisons—"Movement which obviously does not help if a particular individual prisoner is vulnerable." He also stated that "if we could stabilise the prison population then we would be in a better position to stabilise the movement of prisoners within the system".[90]

110. This viewpoint was supported by the Director General of the Prison Service, Mr Phil Wheatley, who told the Committee that—

    The big problem for us is sheer numbers. What we tend to call 'churn'… the fact that we have large numbers of prisoners arriving in reception, very often late in the evening, does not help individual risk assessment of prisoners.[91]

Because prisons have an obligation to take all of those sentenced or remanded by the courts, however, there is only so much the Prison Service can do to minimise the movement of prisoners in its care.

111. Mr Wheatley also told us that the need to move prisoners around the system to make room for new arrivals "does not help us to concentrate on people who need additional support".[92] Similarly the Prisons and Probation Ombudsman Stephen Shaw told the Committee that the churn "means that individual needs are simply not picked upon".[93]

112. A consistent theme in the evidence was that rising prison numbers were significantly impacting upon the ability of prisons to adequately risk-assess prisoners when they enter a prison, and also on the time that could be spent meeting the individual needs of prisoners. In turn, this appears to be leading to a situation where prisoners are becoming more vulnerable, more isolated and more prone to self-harm and suicide. During our visit to Feltham YOI we were told that overcrowding had led to problems retaining Listeners—Samaritan-trained prisoners who support distressed prisoners—as they had been transferred on overcrowding drafts to other establishments.

113. Overcrowding is also leading to prisoners being held a long way from their homes—a major cause of distress. Although there is no specific research on the effects of transferring people between prisons, nor on the mental health effects of being located far from home, the Prison Service has begun research with Oxford University's Public Health Department on the effects of imprisonment on women's health. The effects of women's locations in relation to their families and the effects of transfers between prisons are expected to be examined as part of that work, with preliminary results expected by the end of 2005.[94]

114. We are concerned that there is much truth in Inquest's assertion that: "Suicide prevention and prison overcrowding are simply incompatible".[95] It is an unavoidable conclusion that until overcrowding is significantly reduced, prisons, despite their best efforts, will find it extremely difficult to make any real inroads in reducing deaths in custody. This is a matter of the most serious concern and one which requires the utmost effort on the part of everyone involved in the criminal justice system to address.

115. We recommend that the certified normal accommodation of each prison should be based on the availability of drug and alcohol treatment, healthcare provision and regime activities and not just physical cell space. We also recommend that there should be an independent review of the Operational Capacity (the 'safe' upper limit) of each prison and that it should be forbidden to breach this limit under any circumstances.

116. We further recommend that a protocol should be introduced in all prisons stating that prisoners with specific health or psychiatric needs should not be selected for transfer unless the receiving establishment's medical officer has agreed the transfer. Listeners should not be transferred on overcrowding drafts.

Rising prison numbers and sentencing

117. Even the most modest prison population projections forecast a continued growth in prison numbers. According to the Government's review of Correctional Services, the Government's plans for transforming the management of offenders, a substantial revitalisation in the use of fines, more demanding community penalties than at present and a step-change in sentencing would mean that it would be possible to check the projected increase in prison numbers to 80,000 by 2009, rather than the 93,000 currently projected.[96] However, this would still mean that the Prison Service would have to find capacity to accommodate a further 5,000 prisoners.

118. Most of the increase in the prison population in recent years can be explained by significant increases in the proportion of offenders sent to prison and the length of sentences given. The number of men serving sentences of four years or more has doubled in the last ten years and currently stands at more than half of the sentenced male prison population. In terms of custody rates, in the magistrates' courts offenders are three times more likely to go to prison compared to ten years ago and in the Crown Court almost twice as likely. First time domestic burglars are almost twice as likely to go to prison today as they were eight years ago.[97]

119. The number of prisoners serving short sentences has also increased. Between 1992 and 2002 the number of adults sent to prison for sentences of less than 12 months more than doubled from 18,500 to nearly 48,000. In 2002, over half of those sent to prison were there for jail terms of six months or less.

120. Our visits to prisons confirmed the particular problems caused by short-term sentences. At Holloway, we were told of the destructive impact of the very short-term sentences served by many prisoners, including many likely to self-harm, often for very minor offences including non-payment of small fines, or petty theft that was a consequence of drug addiction. Women were regularly sentenced to one week's imprisonment, which in practice, depending on the day of the week on which they were sentenced, could mean that they served as little as one night in prison. Short-term sentences were extremely disruptive and distressing both for the prisoner and for her family, and did not provide sufficient time for the prison to help or support the prisoner, for example through detoxification or counselling. We are convinced that inappropriate reliance on the prison system is at the root of many deaths in custody. Many very vulnerable people are being held in prison unnecessarily, with no benefit to society and at great risk to their own safety. The overcrowding of the prison system due to this over-reliance places people with drug and alcohol dependencies as well as mental illness in a system that is at breaking-point and unable to meet its duty of care to them. There is a responsibility on the Government to address this by developing workable alternatives to prison, and on sentencers to make full use of the alternatives that are available. Only when this problem is addressed will the state begin to be able to meet its positive obligations under Article 2 effectively.

121. During the course of the inquiry, sentencing practice by judges and magistrates, rather than changed crime rates, was highlighted by both the Government and NGOs as being behind much of the pressure that prisons faced. Mr Goggins told us that "The increase in severity in sentencing bears no relation whatsoever to an increase in criminality or seriousness of offending; it is simply an increase in the seriousness of penalties that are meted out, and we have to tackle that because there is no evidence that it is reducing reoffending rates." This is a view supported in Crime, Courts and Confidence, the report of an independent inquiry into alternatives to prison chaired by Lord Coulsfield,[98] and by research carried out on behalf of Rethinking Crime and Punishment.[99]

Judicial and magistrate confidence in alternatives to prison

122. In light of the impact that the decisions of sentencers have had on the size of the prison population and the ability of prisons to provide a safe and healthy environment in which to hold prisoners, we decided to seek evidence on whether magistrates and judges had confidence in alternatives to prison. Our intention was to see whether pressure could be freed on prisons so that they could better meet their Article 2 obligations.

123. A number of witnesses told us that they felt the judiciary was not sufficiently well-informed about either prison conditions or alternatives to custody. The Prison Reform Trust said that an explanation for the rise in custody rates was that the judiciary did not have confidence in the services available in the community. The Howard League for Penal Reform put some of the responsibility for this at the door of sentencers themselves, with Frances Crook, Director of the Howard League stating that "quite a lot of the time, the sentencers do not know about alternatives and that is the problem".[100] Only when this problem is addressed will the state begin to be able to meet its positive obligations under Article 2 effectively.

124. We received written evidence from the Lord Chancellor, the Lord Chief Justice, the Magistrates' Association, the Judicial Studies Board and the National Association of Probation Officers (NAPO) on these points. Their evidence made reference to the extensive programmes of training and information provision to judges and magistrates on sentencing options, sentencing guidelines including on the impact of a sentence on an individual offender and the recently established Sentencing Guidelines Council and new sentencing options under the Criminal Justice Act 2003. The Lord Chief Justice noted that—

    Probation officers prepare pre-sentence reports in most cases, and all cases where an alternative to custody can be considered, [and] they also regularly speak to the judiciary about options available to them in their areas.[101]

125. Information provision on locally available options appears to be more problematic however. Both NAPO and the Magistrates' Association pointed out that during the 1990s there had been liaison between local probation services and sentencers, coordinated by Magistrates' Liaison Committees.[102] However, the duty of liaison was abolished by the Criminal Justice and Court Services Act 2001, and since that time there has been no formal mechanism for sentencers to be made aware of locally available alternatives to prison, though informal contacts continue in some areas. Both NAPO and the Magistrates' Association favoured the reintroduction of the statutory duty of liaison. NAPO pointed to lack of resources within the probation service as the main reason for failure to advise sentencers on sentencing options for vulnerable offenders. We consider it to be essential that sentencers are well-informed about the range of non-custodial sentences that they have at their disposal, because current sentencing trends are placing great strain on the ability of the Prison Service to meet its Article 2 and other human rights obligations.

126. Evidence from NAPO, the Magistrates' Association and the Judicial Studies Board makes clear that there is no routine provision of information to judges on the outcome of sentences they had imposed, although individual judges could request such information.[103] The JSB stated that: "the view has been expressed very clearly by judges attending the Continuation Seminars that they would welcome regular feedback on the outcomes of the sentences they pass".[104] Following the death of Joseph Scholes, the Home Office has asked the Sentencing Guidelines Council to consider the issues raised by that case in relation to custodial sentences for vulnerable young offenders. We recommend that the Sentencing Guidelines Council should issue guidance to courts to consider the risk of defendants harming themselves if they were to receive a custodial sentence. Magistrates and judges should receive feedback on their sentencing decisions, including information on when someone they have sentenced to custody self-harms, or commits or attempts suicide.

127. Concern was also raised that magistrates and judges were not adequately informed about either the vulnerabilities of individual offenders or the realities of life inside prison. Deborah Coles of Inquest told us that she thought there had been "a number of cases, some quite high-profile cases involving children, where judges were well aware of the high risk of suicide and self harm that those young people presented but chose to ignore it and sent them to establishments knowing that it was impossible for the prison staff to properly care for those young people given the high levels of disturbance they presented".[105] The case, discussed above, of Joseph Scholes, a highly vulnerable and disturbed 16-year-old boy who hanged himself in Stoke Heath Young Offenders Institution in 2002 after serving nine days of a two-year sentence, highlights this problem.

128. It was significant in the case of Joseph Scholes that the court had no power to determine whether Joseph was held in prison service or in local authority accommodation. In an attempt to address this issue, amendments were tabled to the recent Children Bill in the House of Lords to allow the Youth Justice Board the power to vary the placement of a child following sentence when an assessment of vulnerability is made. This would provide a mechanism to avoid inappropriate placement of particularly vulnerable children in prison service custody. Although the amendments to the Children Bill were rejected, Baroness Ashton assured the House that the Home Office would give further consideration to legislation to this effect.[106] The forthcoming draft Youth Justice Bill would provide an opportunity for such legislation. We recommend that the government should take the opportunity afforded by the Youth Justice Bill to empower the Youth Justice Board to direct the form of custody of a sentenced child who has been assessed as particularly vulnerable. Such powers must be accompanied by adequate funding for suitable forms of accommodation for vulnerable children, both on remand and following sentence.

129. The number of cases where judges have sent people to prison despite prior knowledge of their potential for suicide and self-harm is a cause for serious concern. It is of particular concern that many youngsters now imprisoned have previously presented themselves to authorities in respect of their health care needs. They needed healthcare before they offended, not custody after—especially when the evidence demonstrates that custody often exacerbates their medical problems.

Immigration detainees in prison

130. In relation to Immigration Act detention in prisons, Mr Goggins told us that although 205 people were detained in prison under the Immigration Act,[107] these were exceptional cases and detention in prison had "in policy terms" been ended. Of the 205 people detained in prison, the majority were detained on completion of a prison sentence and pending deportation, though some were held on transfer from removal centres "for reasons of security and control". No figures were available for the number of people within the group of 205, with serious mental health problems, or a history of torture. In Northern Ireland, immigration detainees continue to be routinely held in prison.[108] It is a matter of concern that despite a Home Office policy decision, a relatively significant number of potentially vulnerable people, who are either unconvicted or have completed any sentence of imprisonment, are being held in an inappropriate prison environment. Unofficial figures indicate that there were two deaths of immigration detainees in prison in 2003, and two in 2002.[109] Two detainees transferred to prison after the Yarl's Wood fire of 2002 are reported to have attempted suicide.[110] We recommend that detention of immigration detainees in prisons should be urgently reviewed with a view to reducing the numbers of such detainees held in prison, with particular reference to those who may be at risk of suicide or self-harm.

75   First Report of Session 2003-04, op cit., Ev 26 Back

76   Social Exclusion Unit, 2002, Reducing Re-offending by ex-prisoners, London Back

77   Q 74 Back

78   Q 143 Back

79   Q 296 Back

80   Q 145 Back

81   Ev 183 Back

82   Q 226 Back

83   Ev 186 Back

84   Statistics from the Prison Reform Trust, see  Back

85   Concerns about the harmful effects of overcrowding were echoed in evidence from Prison Reform Trust (First Report of Session 2003-04, op cit., Ev 113), Howard League for Penal Reform (ibid., 87), INQUEST (ibid., 88) and the Royal College of Psychiatrists (Ev 183) Back

86   Q 60 Back

87   Q 130 Back

88   First Report of Session 2003-04, op cit., Ev 114 Back

89   First Report of Session 2003-04, op cit., Ev 29 Back

90   Q 284 Back

91   Q 340 Back

92   Q 340 Back

93   Q 100 Back

94   HC Deb., 15 June 2004, col. 879W Back

95   See Back

96   Home Office, Reducing Crime-Changing Lives, The Government's plan for transforming the management of offenders, January 2004 Back

97   Patrick Carter, 2003, Managing Offenders Reducing Crime A new approach, Home Office Strategy Unit, London Back

98   Lord Coulsfield, 2004, Crime, Courts and Confidence, Report of an Independent Inquiry into Alternatives to Prison, Esmeé Fairburn Foundation, London Back

99   Mike Hough et al, 2003, The Decision to Imprison, Prison Reform Trust, London Back

100   Q 32 Back

101   Ev 113 Back

102   Magistrates' Association Ev 158-159; NAPO Ev 161-162 Back

103   Judicial Studies Board Ev 115-116  Back

104   Ev 116 Back

105   Q 19 Back

106   HL Deb., 20 May 2004, col. 984 Back

107   Ev 97 (as of 27 December 2003) Back

108   NIHRC, Comments of the NIHRC on the Fourth Periodic Report of the UK to the UN Committee Against Torture, November 2004 Back

109   Ev 142 Back

110   Asylum pair attempt suicide, BBC news, 7 March 2002, Back

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