Rhys ab Owen, Barrister
COVID-19 has exposed many weaknesses in Wales. One such weakness that does not, in my opinion, receive enough attention is the Welsh prison system.
Before the pandemic, we knew that Wales has the highest prison population per head in Western Europe.
We knew this, not because of figures produced by the UK Government or the Welsh Government, but because of tireless research conducted by Dr Rob Jones from Cardiff University. As a result of making endless freedom of information requests and trawling through thousands of pages of data, he discovered how truly awful the situation is in Wales and has worked tirelessly to highlight the issue.
I find it difficult to believe that such information is not published by either the UK or Welsh Government and is not readily available. It should not be up to one individual to collect and analyse data of such significant public interest. This data should be easily obtainable and the figures for Wales should be clearly set out. This was acknowledged by the Ministry of Justice (MoJ) back in 2017 but has still not been implemented.
On 27 March 2020, 17 days after COVID–19 was declared a global pandemic, Rob’s work uncovered that the number of people held in Welsh prisons had reached its highest point ever. The imprisonment rate in Wales was 163 per 100,000 compared to 139 per 100,000 in England. Swansea prison was recorded as the most overcrowded prison in England and Wales.
Following this, MoJ data showed that, as of 24 April 2020, 25% of confirmed and 22% of probable COVID-19 cases in prisons in England and Wales are in Welsh prisons.
Despite the disproportionately high number of cases in Wales, the strategy by Her Majesty’s Prison and Probation Service (HMPPS) is titled ‘Interim assessment of impact of various population management strategies in prisons in response to Covid-19 pandemic in England’ (my emphasis). There is not a single mention of Public Health Wales or the Welsh Government in the strategy. On 1 May the strategy was re-published and the data relating to Wales was removed.
This highlights the first problem – what Rob’s colleague, Professor Richard Wyn Jones, describes as the ‘jagged edge’. The jagged edge is the complex and often interwoven conflict between matters devolved to Senedd Cymru and those reserved to the UK Parliament. Justice is reserved to Westminster but many crucial and interlinked policy areas such as education, health and housing are devolved to the Senedd.
The Commission on Justice in Wales, chaired by Lord Thomas, the former Lord Chief Justice, was set up by the Welsh Government to review the whole justice system in Wales. As the Commission’s Head of Policy, I was fortunate to play a part in drafting the report published in October 2019. We received 200 written submissions, heard oral evidence from 150 witnesses and held 80 engagement sessions.
The evidence heard clearly highlighted the problems and issues that emerge as a result of the jagged edge. For example, we heard that Welsh prisoners did not have access to health treatments in prison or after release, and that prisoners often left prison without adequate housing arrangements. The report therefore stressed the importance of adopting a whole system approach to justice in Wales, which is aligned with health, education and social policy.
Despite having a strong evidence base for the devolution of justice to Wales, the response of the UK Government to the Commission’s recommendations was that the people of Wales are better served under the jurisdiction of England and Wales.
However, the UK Government’s own actions, particularly in relation to the Welsh prison system during the COVID-19 pandemic has further coarsened the so called jagged edge. Under the MoJ’s plans to release prisoners early as a result of the virus, there is no mention of the need for Public Health Wales to deal with any health problems or for Welsh local authorities to deal with housing issues. Also, the fact that Public Health Wales is not even mentioned in HMPPS’s strategy to deal with COVID-19 in prisons suggests that HMPPS is not in a position to adequately deal with the jagged edge.
The second problem exacerbated by COVID-19 is Wales’ high prison population. Given that we have the largest prison population per head in Western Europe, two of the largest prisons in Western Europe and the most overcrowded prison in England and Wales, it is no wonder that the number of COVID-19 cases in Welsh prisons is disproportionately high. This in turn places the prison population, prison staff and the Welsh general public at greater risk of COVID-19, and the NHS in Wales under greater strain.
Many judges and senior barristers will say that offenders who are sent to prison are now given longer sentences and an increasing number are given custodial sentences for offences that would previously have been a community order. The increase in the Welsh prison population contradicts international accepted evidence that robust community sentences achieve better outcomes for rehabilitation in most cases. These sentences not only provide meaningful punishment as they are demanding for offenders but they also enable reparation and rehabilitation.
In Northern Ireland the cost of having more intensive community orders and prevention work has been met by a reduction of those held in custody. For context, the average daily prison population in Northern Ireland in 2018/19 was 1,448. That gives them an imprisonment rate of 77 per 100,000. If that rate was applied to Wales there would have been 2,687 fewer prisoners in Wales at the end of March 2020.
Politicians often advocate a prison sentence as they believe that’s what victims and the public want. However, experience and evidence show that what victims want is to be listened to, the sentence clearly explained to them, and the offender rehabilitated.
Rob Jones’ research on COVID-19 in Welsh prisons underlines the existence of a deep-rooted set of problems in Wales – problems that cannot be ignored any longer. Other forms of sentences with strong oversight to ensure fairness to victims and enhance public confidence in the justice system must be seriously considered.