Inside Time reports story missed by the BBC: prison overcrowding is unlawful

Inside Time reports story missed by the BBC: prison overcrowding is unlawful

Numbers Game

There is no statutory authority for more than one prisoner
per cell claims John Hirst



The Governor of Hull Prison on Viking FM asked the question: “Should prisoners have a single cell just because they want one?” He was attempting to respond to the Prison Reform Trust report: 20 Worst Overcrowded Prisons – building more prisons is an expensive dead end. It is understandable why the Governor is being defensive, because according to section 13(1)of the Prison Act 1952: “Every prisoner shall be deemed to be in the legal custody of the Governor of the prison”. Section 12(1) of the Act states: “A prisoner, whether sentenced to imprisonment or committed to prison on remand or pending trial or otherwise, may be lawfully confined in any prison”. The key words here are “may be”. For example, it may be unlawful to confine 2 or even 3 prisoners in a space designed to hold one prisoner. Section 14(2)states: “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”.

One prisoner in a cell has 100% of the space; two prisoners only 50% each; three prisoners crammed in a cell and the size is cut down to 33% each. In my view, it is arguable that because s.14(2) refers to ‘a’ and ‘the’ prisoner in the singular and not prisoners in the plural then there is no statutory authority for more than one prisoner per cell. If this is the case, then Prison Rule 26(2) which claims more than one prisoner may be confined in a cell is unlawful. It follows that Prison Service Order 1900 – Certified Prisoner Accommodation, insofar as it refers to overcrowding, is also unlawful.

It is not a question of pandering to the whim of prisoners wanting a single cell, but instead giving them what they are legally entitled to under the Prison Act 1952.

What appears to have happened is that the Prison Service, for administrative convenience, has stretched, bent or broken the rules to allow them to redefine what the Certified Normal Accommodation is for prisoners. That is, in exceptional circumstances overcrowding would be permitted. This is a deviation from the norm. Then it became the norm for overcrowding to occur. It became common practice. However, that does not make it legal.

Under the hierarchy of powers the Prison Act 1952 is at the apex, followed by the Prison Rules 1999 (as amended) followed by Prison Service Orders. The ultra vires doctrine states that a public authority acting under a statutory power can only do those things the statute authorises. If, for example, s.14(2) of the Act states one prisoner per cell, and Prison Rule 26(2) states a certificate can be issued for 2 prisoners per cell, and PSO 1900 states that 3 prisoners can be located in a cell, then the PSO is ultra vires (outside the power of) Prison Rule 26(2), which in turn is ultra vires s.14(2) of the Act. The second arm of the ultra vires doctrine is that even if there is a power to overcrowd prisoners then the manner in which that power was exercised may be unlawful. For example, if a Prison Officer orders two prisoners to share a bed because another bed was not available. Or, if overcrowding is used as a temporary measure and then becomes a permanent measure it would become unlawful.

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”. Herein lies the problem; Area Managers are not certifying in accordance with the Act. Rather, they are certifying in accordance with Prison Rule 26(2) and in accordance with PSO 1900, and neither of these is in accordance with the Act. Nowhere in the Act is there power for crowding conditions, let alone overcrowded conditions! And yet PSO 1900 talks about crowded and uncrowded conditions. When it is administratively convenient the Prison Service subject prisoners to crowded conditions. It would also appear that when it is administratively convenient the Prison Service breaks the law. In my view, if the Prison Act 1952 had intended that crowded conditions should exist then provision would have been made for this within the text of s.14(2). PSO 1900 cannot introduce crowded conditions, in effect, through the back door. Parliament has authorised uncrowded conditions. The Executive has authorised crowded conditions. Will the Judiciary see this as a step too far? The only way to find out is for a test case.