MPs and peers have called on the government to abolish an outdated law that gives courts the power to send people to prison for their ‘own protection’. Schedule 1 to the Bail Act 1976 gives the court the power to remand an adult to prison for their ‘own protection’, or in a child’s case for their own ‘welfare’, without that person being convicted or sentenced, or even where the person is not facing a criminal charge that could result in a prison sentence.

The court can make use of the power without any formal investigation into their circumstances, any expert evidence, and without them having legal representation. The All Party Parliamentary Group on Women in the Penal System (APPG) argues that prisons are being used to make up for failings in care and protection in the community. It describes use of prison for protection or welfare has ‘no place in a modern justice system’ and is ‘totally without parallel’ in the criminal justice system.

The report states that the continued existence of the power enables failures in community provision to be overlooked at the expense of exacerbating the situation of exceptionally vulnerable defendants. Recent reforms were made to restrict the use of police cells as places of safety to ensure that unwell people are given support from mental health services at the earliest opportunity. Despite this, the APPG refers to research that suggests that, to avoid police cells being used as places of safety, police are ‘simply charging people with low-level offences and passing the challenge of addressing their mental health crisis to the courts’ instead of using their powers under section 136 of the Mental Health Act.

The power is commonly used to detain the most vulnerable of defendants; those who present a risk of harm to themselves. APPG found that the power tends to be used against individuals who are in a mental health crisis whose needs are not being adequately met by the social care system and by healthcare providers. The Howard League for Penal Reform says it is aware of many cases where the power has been used on women threatening to kill themselves.

Locking up women in prison apparently to protect them is an abuse of the presumption of innocence and a removal of libertyhttps://t.co/e5egTNfUfp

— Frances Crook (@francescrook) November 4, 2020

It stresses that prisons have never been designated in law as ‘places of safety’ given the fact that they are not fortified to care for people with substantial mental or physical health issues. ‘If someone is in crisis and at risk of harm, they need help and support, not weeks or months in an overcrowded prison that will only make matters worse,’ commented Baroness Corston, co-chair of the APPG. ‘It is wrong in principle and damaging in practice for the most punitive sanction available to the state to be used to make up for failings in the community. It is time to put this right.’

‘The longer that this power remains on the statute book, the longer that the cracks in the provision in our communities will be overlooked,’ said Debbie Abrahams MP.

Prison walls present a little obstacle to a criminal group or gang intent on retaliation or violence towards a vulnerable prisoner evident through the fact that Chief Inspector of Prisons in 2019 characterised safety across the prisons as ‘still a major problem.’

Jackie Doyle-Price MP, APPG co-chair, said that the new white paper on sentencing suggests that the government intends to remove the power to remand defendants for their own protection on mental health grounds. ‘But it should not stop there,’ she continued. ‘Our briefing makes the case for going further and abolishing completely this outdated power, which lacks scrutiny and does nothing to protect the vulnerable.’