The Prison and Young Offender Institution (Coronavirus) (Amendment) Rules 2020 (“the Rules”) came into effect on 6 April 2020. These Rules grant the Secretary of State a discretion to release prisoners temporarily “for the purpose of preventing, protecting against, delaying or otherwise controlling the incidence or transmission of coronavirus” (rule 9A(2)(c)(i)), or to facilitate appropriate deployment of prison resources (rule 9A(2)(c)(ii)). In this piece, I will analyse these Rules in light of domestic and European Convention of Human Rights (“ECHR”) case law, suggesting that either (i) the Secretary of State’s discretion under the Rules must be read in light of human rights law, requiring her to engage much more closely with the individual circumstances of prisoners than she presently is, or (ii) that various provisions of the Rules are incompatible with the ECHR.
Rule 2 modifies the Prison Rules 1999, granting the Secretary of State the power to release prisoners temporarily for one of the two purposes set out in rule 9A(2)(c) (above), provided that that prisoner does not fall into certain excluded categories. Prisoners are ineligible for release under 9A(3) if, inter alia: (i) they have a “relevant deportation status” (i.e. the Secretary of State has made an order to deport them under section 5(1) of the Immigration Act 1971(3) and they have no further appeals available, see Prison and Young Offender Institution (Amendment) Rules 2014 rule 2(b)(1E)); (ii) they are subject to “notification requirements” (i.e. obligations periodically to inform police of one’s whereabouts) due to being convicted of a serious sexual offence; or (iii) they are a “category A” prisoner (i.e. deemed to pose a “serious threat” to the public). At the time of writing, it appears that to date the UK has elected to release around 4,000 prisoners on the basis that they are “low risk” and have two months or less still to serve, as well as releasing ad hoc some of those who have tested positive for the virus or are from mother and baby units.
Three Problems with the Rules
I suggest that there are at least three problems concerning legality and interpretation posed by these Rules.
The first is largely outside the scope of this blog post due to the lack of evidence on the point, and due to its public law (rather than human rights law) nature; as such I only introduce it briefly here. If the Secretary of State has created a rule or policy that only those prisoners who have two months or less to serve are eligible for release, she may have unlawfully fettered the discretion granted to her by the Rules (see for example British Oxygen Co Ltd v Minister of Technology  UKHL 4), creating inflexible distinctions whilst “shutting her ears” to individual . The remainder of this piece argues that flexibility and fact-sensitivity are crucial in the present circumstances, but through the prism of human rights, rather than public law.
The second problem is human rights-based. There exists a positive obligation (meaning an obligation on a state action to protect or enforce a right), at common law and under Articles 2 and 3 of the ECHR, to protect all prisoners from death or serious harm (Keenan v United Kingdom (2001) 33 EHRR 38 at ). This duty arises because of the inherent vulnerability of detainees and has even more exacting requirements in relation to those who are “especially vulnerable by reason of their physical or mental condition ” (Rabone v Pennine Care NHS Foundation Trust  2 AC 72 at ), meaning that human rights obligations may be stronger in cases of prisoners who have underlying health conditions. The impact of this is obvious: as is well-documented, prisoners, on the whole, are more likely to have serious health conditions than the general population, meaning that the Secretary of State may have a strong positive obligation to protect a large number of prisoners. As of 30 March 2020, 65 prisoners have tested positive for COVID-19 across 23 prisons, and 14 prison staff have tested positive for coronavirus across 8 prisons. Such has led to staff shortages, as around 10% of the prison workforce is currently self-isolating.
In light of this, the Secretary of State’s decision to base release decisions on length of sentence (“two months or less”) may fail to sufficiently consider the individual vulnerabilities of certain categories of prisoners, such as those with underlying health conditions. The positive duty of protection may involve exercising the discretion granted under the Rules to release prisoners belonging to vulnerable categories, even where they have longer than two months to serve. The (over-)population of each prison must also be a factor, as crowding can heighten health risks and chances of being forced into unlawful solitary confinement (see for example X v. Turkey (no. 24626/09)). The Secretary of State must individuate her assessments rather than using broad-brush categorisations such as “two months or less”. These releases, in turn, may ease the problem of overcrowding, therefore temporarily rendering the above problems less acute, for example by reducing risks of virus exposure to other vulnerable prisoners, or through easing staff shortages that can lead to prisoners being kept in solitary confinement for excessive periods.
While the above issue is concerned with how the Secretary of State exercises her discretion under the Rules, there remains the issue of whether the Rules themselves are compatible with human rights law. Recall under rule 9A(3) that certain categories of prisoners are entirely excluded and therefore cannot be released, irrespective of their circumstances or vulnerabilities. It is striking that those due to be deported are entirely excluded, given that almost all international travel is currently restricted (see here for further analysis), and regardless of the evident vulnerability of such detainees. It also seems particularly odd in this context that those who are subject to notification requirements under sexual offences legislation are universally singled out and excluded, when such persons could readily be monitored and made subject to conditions if temporarily released like any other category of prisoner. It may, therefore, be the case that the restrictions in the Rules themselves leave the UK government insufficient room to take into account individual circumstances for the ECHR.
When faced with seeming human rights incompatibility of Rules such as these, courts in the UK have a choice. They can seek to interpret the legislation “so far as it is possible to do so” in line with the requirements of human rights law under s.3 of the Human Rights Act 1998, or they can declare it to be incompatible under s.4. Courts in the UK have in the past decided (in the “whole life sentences” context) that the power to release prisoners could be read in light of the ECHR, such that the Secretary of State is bound to exercise her discretion compatibly with rights law (see R v McLoughlin and R v Newell  EWCA Crim 188), and the same may apply here. I would suggest however that the absolute exclusion under 9A(3) (prisoners “must not be released”) is difficult to read in a way that would sufficiently consider the individual vulnerabilities of certain prisoners, and may well be deemed incompatible under s.4 of the Human Rights Act.
I have sought to argue that the broad discretion afforded to the Secretary of State under the Rules is conditioned by various human rights-based considerations. Individual circumstances and vulnerabilities of prisoners must be considered, and ultimately the enhanced duty of protection owed to those with underlying conditions may require the release of a significant number of prisoners. The Rules give large scope for the Secretary of State to prescribe extensive conditions on released prisoners, ensuring that any risks posed to the public can be minimised. It may well be the case however that the hard-edged categories of excluded persons are insufficiently attuned to the particular vulnerabilities of those due to be deported, meaning they are incompatible with human rights law on that basis.
The Prison and Young Offender Institution (Coronavirus) (Amendment) Rules 2020 BBC News, Coronavirus: Low-risk prisoners set for early release https://www.bbc.co.uk/news/uk-52165919
The Guardian, Discharged UK prisoners with Covid-19 symptoms given travel warrants https://www.theguardian.com/world/2020/apr/07/discharged-uk-prisoners-with-covid-19-symptoms-given-travel-warrants
The Prison Reform Trust, letter to Robert Buckland MP, http://prisonreformtrust.org.uk/portals/0/documents/letters/Covid-19%20open%20letter%20to%20SoS%20020420.pdf
House of Commons Health and Social Care Committee, Prison Health, https://publications.parliament.uk/pa/cm201719/cmselect/cmhealth/963/963.pdf (see in particular pages 10-14)
Garden Court Chambers, COVID-19 – Implications for Immigration Detention https://www.gardencourtchambers.co.uk/coronavirus-legal-news-views/covid-19-implications-for-immigration-detention
The Human Rights Act 1998