The European Committee on the Prevention of Torture (CPT), the Council of Europe monitoring body responsible for visiting places of detention in member states, recently published its report on its visit to the UK in 2016. The report was published at the request of the UK and a response is expected shortly.
The report is important in three respects. First, the report is striking in the number of concerns it raises about ill-treatment in places of detention in the UK, including inter-prisoner violence, a lack of safety in prisons, use of restraint and separation in psychiatric hospitals, solitary confinement of children and indefinite lengths of immigration detention. Second, the nature of the concerns raised in the report prompts questions on whether measures to eradicate ill-treatment are sufficient or whether in some instances the use and legitimacy of detention itself needs to be considered. Third, the report is part of a wider context of national reviews and reform and recent and forthcoming recommendations by the UN on the use, legitimacy and treatment in detention in the UK. This level of attention to detention in the UK raises interesting questions for scholars and practitioners on implementation and compliance with international human rights law and the conditions necessary to bring about change.
The Conditions and Treatment in Detention in the UK
The report should not be read as a comprehensive account of the issues in detention in the UK, particularly as the CPT is limited in the number of detention settings it visits, it only covers institutions in England and Wales, and it does not cover or go into detail on all issues (see for example the use of restraint against children which the Committee on the Rights of the Child in its report on the UK deals with in greater depth). At the same time, at 102 pages (which in and of itself is significant as CPT reports are typically 50 – 60 pages long), the report plays an important role that cannot be matched by other international bodies beyond its international equivalent, the UN Sub-Committee on the Prevention of Torture, in providing a detailed account of the conditions and treatment across different detention sites (police, prisons, psychiatric institutions and immigration detention). The report identifies a wide array of issues that need to be addressed, including some of the most serious and enduring issues on treatment in detention and makes clear that significant work is required in all detention settings.
For example, the report is hard-hitting in its assessment of the state of prisons in the UK, characterising them as ‘unsafe places for prisoners and staff alike … including severe overcrowding, poor living conditions and a lack of purposeful regimes … these long-standing problems were being exacerbated by a significant escalation in levels of violence’. The report underscores the need for ‘immediate attention be given to initiating concrete measures … to bringing prisons back under effective control of the staff, reversing the recent trends of escalating violence, self harm and self-inflicted deaths’ (para 48).
The report similarly strikes a powerful chord on the imprisonment of children. It identifies a range of ill-treatment concerns including finding that in one centre, ‘a large minority were placed on a so-called ‘separation’ list by management … These juveniles were locked up alone in their cells for 23 and a half hours per day, with only a television for company’ (para 48). The CPT finds that this is ‘effectively being held in conditions of solitary confinement’ (para 91), the use of which the Committee on the Rights of the Child has already recommended that the UK prohibit.
The report also concerns about mental health in prisons as well as treatment and safeguards in psychiatric institutions. In particular, the CPT highlights concerns about consent to treatment safeguards when detained on grounds of mental health, the need to ‘reinforce and expand’ the ‘powers of the Mental Health Tribunal … to deal with appeals concerning such issues as consent to treatment, transfers to more secure hospitals, the use of means of restraint and the application of specific treatment measures’ (para 108) and concerns over the use of restraint and separation in such institutions. These issues have not yet been addressed by an international body although bodies such as the Equality and Human Rights Commission have raised it in its submission to the Committee against Torture which will shortly examine the UK. The findings therefore play a critical role in identifying the issues concerning ill-treatment and in setting an agenda for change at the national level.
The Relationship between Treatment, the Use and Legitimacy of Detention
In a report by a monitoring body such as the CPT, the recommendations are inevitably focused on addressing shortcomings in the conditions and treatment in detention. At the same time, at different points in the report, there are suggestions that solely focusing on improving conditions and treatment in detention may be insufficient and that the use of detention itself should also be considered.
This is most direct in the CPT’s recommendations on reduction of the levels of imprisonment. Here it makes an explicit link between ‘chronic overcrowding’ and a ‘steadily increasing prison population’ (para 49). In line with earlier recommendations by the UN Committee against Torture, which called on the UK to ‘reduce prison numbers by resorting to non-custodial measures as an alternative’, it finds that the introduction of new prisons ‘may help to temporarily alleviate certain problems’ but calls upon the UK to ‘take concrete measures and determined action to significantly reduce the current and future prison population, as a matter of priority’ (para 51).
It also arises in relation to the CPT’s comments on the reduction in the number of children in detention which it points out is important as detention should be ‘exceptional’ and reductions of ‘the number of women in prison … through a focus on alternatives to detention’ (para 30). However, its references are less developed than bodies such as the UN Committee on the Rights of the Child that has recently found that ‘[t]he number of children in custody remains high, with disproportionate representation of ethnic minority children, children in care and children with psychosocial disabilities, and detention is not always applied as a measure of last resort’.
By contrast, alternatives to detention are not raised in relation to the two forms of administrative detention (detention on grounds of mental health and immigration detention) addressed in the report, although the CPT points to increases in detention on grounds of mental health (para 107) and the indefinite length of immigration detention which positions the UK as the only state in Europe without a cap on the length of detention. This is despite movements in international human rights law (see for example, Human Rights Committee General Comment 35) towards the exceptionality of both forms of detention and the importance of the availability and consideration of alternatives within assessments of legitimacy.
The increased focus on alternatives to detention both in the criminal sphere and in administrative detention raises questions about the adequacy of existing regional and international frameworks for assessing and monitoring the relationship between treatment, detention and alternatives, which in and of themselves can raise human rights issues and therefore may also require monitoring mechanisms.
Securing Implementation in an Active Space of National, Regional and International Recommendations
Finally, the report makes frequent reference to a number of reviews and reports at the national level on different aspects of detention such as the Harris review into deaths in custody of 18 – 24 year olds; the Coates review on putting ‘education at the heart of the prison system’ (para 54); the Taylor review of the youth justice system (para 83); and the Shaw report on immigration detention (Para 179). This is in addition to recent recommendations on aspects of detention by the Committee on the Elimination of Racial Discrimination, Committee on the Rights of the Child, Human Rights Committee and forthcoming reviews of detention practices by the Human Rights Council through the Universal Periodic Review of the UK and the Committee against Torture.
On its face, the number of reports and recommendations into detention in the UK should enhance the prospects for change. Equally, the sheer quantity of recommendations and reports risks inaction or delay or the prioritisation of certain reviews and the issues they address to the exclusion of others. This is a particular risk within the current political context in which the report has been published, just before a snap election. The coinciding of national, regional and international reviews also creates the risk of a vacuum or reduced momentum for change at a later point.
It is therefore critical that a focal point is created to pull together and connect recommendations being made. This has been recommended in the Harris review and by the Joint Committee on Human Rights in relation to deaths in detention but given the range of issues across places of detention, a more comprehensive mechanism may be required. National, regional and international bodies can also facilitate assist in this regard and monitor progress by engaging with previous initiatives. In this respect, the CPT refers to national reviews throughout its report. It also demonstrates the iterative and powerful role such engagement can play in influencing and reshaping existing reform discourse. For example, on national prison reform efforts, the CPT acknowledges the introduction of £13 million of emergency funding into prisons in order enable measures such as increased staff numbers. However, it finds that while ‘a welcome first step in tackling the consequences’ these efforts ‘are insufficient to address the root causes of the prisons’ crisis’ (para 35) and points to ‘overcrowding, poor living conditions and lack of regime’ (para 36) and the need to ‘significantly reduce the current prison population’ as key pillars to effectively addressing the problem. It thus shines a light on the adequacy of existing efforts, including the Prisons and Courts Bill, to address ill-treatment in detention in the UK as well as potentially triggering new initiatives where none currently exist such as in the area of mental health in psychiatric institutions.
From the perspective of compliance with international human rights law and the implementation of recommendations of international bodies, the CPT report and the context in which it is placed provide a unique real time case study into the conditions necessary to bring about change.