Ministry of Justice guilty of breaking law on prisoner overcrowding

Ministry of Justice guilty of breaking law on prisoner overcrowding

Earlier today the Prison Reform Trust(PRT) published its report 20 Worst Overcrowded Prisons - building more prisons is an expensive dead end and the BBC reports Jail overcrowding claims denied

So what is the truth?

My legal advice is that prison overcrowding is unlawful. Section 14(2) of the Prison Act 1952 provides that: "No cell shall be used for the confinement of a prisoner unless it is certified by an inspector that its size, lighting, heating, ventilation and fittings are adequate for health and that it allows the prisoner to communicate at any time with a prison officer".

Note that it refers to prisoner in the singular and not plural, and that cell is referred to in the single. My interpretation of this is one prisoner in a single cell. As prisons were designed for single occupancy, I think that this interpretation is valid.

Note the "is certified by an inspector". For the cell to legally house a prisoner it must first be inspected by an inspector and a valid certificate issued to state it conforms to the standards specified in s.14(2) of the Act. This is known as the Certified Normal Accommodation (CNA).

What has happened is that some cells have not been inspected by an independent inspector. This on its own calls into question the legality of cells which have not been passed by an independent inspector. So, who has certified the cells in apparent contradiction of s.14 of the Act? As I understand the position, the cells are certified by an Area Manager. He or she is a Prison Service employee. In my view, the required independence of an inspector is absent with this arrangement. What it means is that Area Managers have acted unlawfully by certifying cells which do not conform to the standards in s.14(2) of the Act. Specifically, by sanctioning 2/3 prisoners crowded into a cell designed for 1.

It has become common practice for the Prison Service, on this issue, to break the law. However, it is not just the Area Managers who are acting unlawfully. Because prisoners are in the legal custody of the Governor by virtue of s.13(1) of the Act, he or she is legally liable for unlawful prison overcrowding. Furthermore, every time that a Prison Officer locks the door of an overcrowded cell he or she is acting unlawfully.

The PRT should be praised for raising the issue of overcrowding in prisons. However, because the organisation has charity status it is limited by not getting into the political arena. In this sense, it becomes part of the problem not the cure. Part of the Establishment. For example, the PRT report refers to Prison Service Order 1900 - Certified Prisoner Accommodation. The Prison Rules and Prison Service Orders are secondary/delegated legislation, at best, and have not been debated or passed into legislation by Parliament like the Prison Act 1952.

According to PSO 1900 “Accommodation can only legally be used for the confinement of prisoners if it has been certified in accordance with the Prison Act 1952 and the Prison Rules and Young Offender Institution Rules”.

The legal advice in relation to the Act is valid. However, it is flawed in relation to being in accordance with the Prison Rules 1999(as amended). This is because Prison Rule 26(2) is unlawful:

"Sleeping accommodation
26. - (1) No room or cell shall be used as sleeping accommodation for a prisoner unless it has been certified in the manner required by section 14 of the Prison Act 1952 in the case of a cell used for the confinement of a prisoner.

(2) A certificate given under that section or this rule shall specify the maximum number of prisoners who may sleep or be confined at one time in the room or cell to which it relates, and the number so specified shall not be exceeded without the leave of the Secretary of State".

The Executive has introduced crowded conditions into prisons unlawfully by bypassing Parliament, in effect, in changing s.14(2) of the Act. Remember the Act makes no provision for crowding. A public authority can only do that which the enabling statute allows. In prison crowding it is not allowed, and yet Prison Rule 26(2) appears to allow for prison crowding. In my view, the Act is lawful but the Prison Rule is unlawful being outside the power of the Act.

The Executive is usurping the power of Parliament. This is a constitutional issue.

Area Managers sign the certificates because it is what their employer demands.

It appear that society does not care if prisoners suffer unlawful treatment.

This is a sad indictment.

Jailhouselawyer gets interviewed on BBC1 Look North (its a few minutes in)

UPDATE: Why prison overcrowding must force policy rethink

Prisoners have not voted because they are being denied it unlawfully. If they could vote, prison overcrowding would not be a vote winner!