November 24 2023

Clear risks and inadequate safeguards: the reality of solitary confinement in prison

Clear risks and inadequate safeguards: the reality of solitary confinement in prison

Beyond the Wall, HMP Glenochil, Scotland Gold Award for Watercolour

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Beyond the Wall, HMP Glenochil, Scotland Gold Award for Watercolour

Beyond the Wall, HMP Glenochil, Scotland Gold Award for Watercolour

Imagine spending 22 hours a day locked in a room. You might be allowed to make a phone call. A half-hour break to exercise. A shower if you are lucky.

Imagine having to endure this ordeal day after day after day without knowing when it will end.

Now imagine how you would feel if no one knew it was happening to you and you felt powerless to do anything about it.

Welcome to the unreported world of solitary confinement in prisons in England and Wales.

It is a world which the Supreme Court was asked to explore earlier this year, considering the case of two prisoners convicted of terror-related offences, Kamel Bourgass and Tanvir Hussain.

Today the Supreme Court ruled that prison governors who keep prisoners in solitary confinement for longer than 72 hours without external authorisation from the Secretary of State for Justice are acting unlawfully. The Supreme Court found that the prison rules include an inbuilt safeguard for the prisoner which can only be meaningful if the authorisation of segregation beyond 72 hours is performed by an official from outside the prison. The court’s decision is a huge step forward in recognising that the Prison Rules and fairness require external scrutiny of certain important decisions that go on behind the closed doors of a prison.

The Howard League for Penal Reform intervened in this case because it raised important issues of public interest. Following this judgment, we will be writing to the Ministry of Justice to seek a meeting to discuss how the future use of segregation beyond 72 hours will be authorised.

Segregation – the practice of separating prisoners from other prisoners – is a common feature of the prison system. Not all prisons have designated segregation units but most do, and they are used for various reasons.

Prisoners might be segregated for ‘good order and discipline’, while they are waiting to be tried under the prison’s discipline rules or as a punishment.   The reason may be to prevent prisoners from harming others or an attempt to protect them. But such a drastic measure can have grave consequences. The serious effects of segregation have long been recognised by the Prison Service itself: even where it is used as a punishment for breaking prison rules it can only be imposed for a maximum of 21 days. The Court found it ‘extraordinary’ that under the current system, where there was insufficient evidence to convict a prisoner of breaking prison rules, he can be segregated for a much longer period, without procedural protection.

In the Howard League’s experience, it is not unusual for prisoners who are segregated to experience levels of isolation that are equivalent to solitary confinement. The Special Rapporteur of the United Nations Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment has made the connection explicit by stating that ‘solitary confinement is also known as “segregation”.’

In its report in 2013-14, Whitemoor prison’s Independent Monitoring Board (IMB) did not hesitate in using the term ‘solitary confinement’ to describe the segregation regime:

‘(W)e routinely observe prisoners held in segregation including the one held for the entire period under review and more – and who attempted suicide.
We adhere to the use of the term solitary confinement, by which we mean being held alone in a cell for 23 hours a day – often without a TV or working radio, and with no meaningful occupation – interspersed with only very occasional contacts with prison officers, usually through a closed door.’

Other IMB reports make similar observations. It is widely accepted that prisoners in England and Wales are being held in solitary confinement. But we do not know how many.

As far as we are aware, the number of prisoners subject to segregation is not publicly available. Parliamentary Questions have been asked, concerning the number of people segregated and how many of these people have protected characteristics, but the government has confirmed that this information is not collated centrally.

What we do know about solitary confinement paints a worrying picture.

The length of time that people have been segregated ranges from a number of hours to more than five years.

In its annual report for 2013-14, the Prisons and Probation Ombudsman drew attention to the ‘disproportionately high number of self-inflicted deaths in segregation units’.

In the same year, HM Inspectorate of Prisons reported that there had been seven deaths in segregation.

One of the men who died had self-harmed on the very day he was placed in segregation, but his case was not reviewed and no exceptional measures were put in place. He was found hanging in his cell after only two days in the unit.

According to a report published in June 2015 by the Prison and Probation Ombudsman, 28 prisoners took their own lives while being held in segregation units in England and Wales between January 2007 and March 2014.

The Howard League’s experience of working with prisoners subjected to long-term segregation is that they often tend to be the most disturbed and vulnerable, characterised by being young, institutionalised, with mental health difficulties and histories of self-harm and attempted suicide.

The charity has worked with a number of young people who have been segregated for long periods pending a transfer to hospital under the Mental Health Act or who have self-harmed prolifically while detained for many months in isolation.  There is no clear route for prisoners to challenge their segregation and no independent scrutiny of it.

Our experience is that segregating vulnerable and disturbed people tends to make their problems worse.  The most vulnerable are the least equipped to challenge their segregation without help or a fair system in place. The risks of putting people in solitary confinement are clear, but the safeguards are inadequate.

Today the Supreme Court recognised this.