UK legislation could strain ‘weakened’ Welsh prisons

Perhaps less discussed are the changes to criminal sentencing and prison release that the Bill will introduce; changes which many fear will further strain Britain’s prisons, and deepen racial inequality.

With Wales holding the highest imprisonment rate in Western Europe, the Welsh criminal justice system could feel the strain more than most.

Let’s look first at the proposed changes: 

Sentencing

Currently, judges can exercise their own discretion when passing a sentence. 

In some cases, a judge might choose to give an offender a suspended sentence or a community order. These orders will require the person to undertake mandatory rehabilitation activities, and will often involve electronic tagging, an imposed curfew and a ban on entering certain parts of the community.

If the Policing Bill passes into law, judges will no longer have this option for certain offences. 

Last week Home Secretary Priti Patel announced that further amendments would be made to the Policing Bill, changing how hate crimes are recorded in order to “protect free speech”. (Picture source: PA Wire)

Instead, prison sentences will be compulsory except in exceptional circumstances, and for some repeat offences, mandatory minimum prison terms will apply. 

Where a person is convicted for a third class A drug trafficking offence, for example, the judge will be required to impose a prison sentence of at least seven years. Drug trafficking offences include arranging for the importation of class A drugs, but can include assisting in a trafficking operation.  

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Similar requirements will be made in the case of repeat convictions for carrying a knife in a public place or educational setting.

According to the Office for National Statistics, 19 percent of offenders convicted for knife possession in the year ending March 2021 were aged between 10 and 17 years old. 

Taking this into account, the Alliance for Youth Justice has called for any measures that would increase youth imprisonment to be removed from the Policing Bill.

“There is no evidence that the threat of harsher custodial sentences deters children from offending… but there is abundant evidence that imprisonment is extremely harmful to children and disrupts their healthy long-term development,” the charity said earlier this year.

Serious Violence Reduction Orders (SVROs)

Intended to tackle knife crime, these orders could be placed not only on individuals considered to have been carrying a weapon while committing a criminal offence, but also on anyone accompanying that person – whether they knew the other person was armed or not.

Organisations including the Criminal Justice Alliance (CJA) – a coalition of 170 justice charities – as well as legal aid charity Rights of Women, have warned that the policy could put vulnerable women in abusive relationships at risk.

The disproportionate rate at which BAME people are arrested, they said, would also make the policy much more likely to affect non-white people.

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Under an SVRO, a person could be detained and searched by a police officer at any time while out in a public place. Officers would be able to use “reasonable force” to carry out these searches, and there would be no limit to the number of searches carried out on the same person per day.

SVROs are intended to tackle knife crime, but charities warn that they could put vulnerable women and BAME people at risk (Picture source: PA Wire)

Breaking the order – for instance, by refusing to submit to a search – could result in a year’s imprisonment, a fine, or both.

SVROs will “disrupt a person’s rehabilitative journey by encouraging officers to continuously stop and search an individual, even after they have made a commitment to change their lives,” the CJA added.

“We are concerned that SVROs will further damage trust and confidence in policing and undermine legitimacy… Individuals and communities will see and feel the general increase in stop and search of young black men, adding to their mistrust in policing.”

What else?

Alongside the measures outlined above, the Policing Bill would double the maximum punishment for assaulting an emergency worker – including verbal assault – from one to two years, and would make applications for early release from prison more difficult both to submit and to have granted.

The Home Secretary would also gain new powers to prevent any prisoner’s automatic early release if that prisoner is perceived to have become “radicalised” in prison – a perception that can be influenced by ethnicity, culture and religion.

What does Westminster say?

While the UK government argues that their approach will increase “confidence in the criminal justice system for the public, victims, and the judiciary, through improved public protection”, many say that the Bill risks exacerbating existing problems in the justice system, and increasing, rather than decreasing, crime. 

Indeed, the government states in one of its own documents that the Bill could mean “family breakdown is more likely, affecting prisoner mental health and subsequent reoffending risk.” 

The review goes on: “Prison Services and the Youth Custody Service will face increased population and longer times spent in custody for some offenders, which may compound prison instability, self-harm, violence and overcrowding.”

Boris Johnson speaks at Prime Minister’s Questions, December 2021 (Picture source: PA Wire)

In an Equalities Impact Assessment, the government acknowledges that some of its policies may put BAME people “at a particular disadvantage”.  

These potential costs, it says, are balanced by expected benefits to the general public and victims of crime “in that they feel protected for longer.”

In all, the Home Office estimates that its intended policies will result in a “steady” increase to the England and Wales prison population of around 700 prisoners by 2028.

Wales behind bars

This population increase may be a particular cause for concern in Wales.

Last year, leading Welsh criminologist Dr Robert Jones used data obtained from the Ministry of Justice to provide a snapshot of our criminal justice system in numbers.  

Dr Jones noted that Wales had a higher imprisonment rate (the number of prisoners per 100,000 people in the population) than England and thus, the highest in Western Europe.

According to Jones, Wales and England combined have held the highest imprisonment rates in Western Europe since 1999. 

HMP Berwyn, the north Wales “super prison”

There are currently five prisons in Wales. 

HMP Cardiff, Swansea, Usk, Usk Prescoed and the relatively new HMP Berwyn, north Wales’s so-called “super prison”, are all government-run, while Bridgend’s Parc Prison is operated by private security firm G4S.

At the time of writing, all Welsh prisons except Berwyn were operating with a population exceeding their Certified Normal Accommodation (CNA).

CNA, also known as “uncrowded capacity” represents the number of prisoners a facility can hold before it’s considered to be overcrowded.

As the prison population has increased – prisoner numbers in England and Wales increased by around 20 percent between 1990 and 2018  – so too have deaths and self-harm incidents in custody.

According to the latest available government data, self-harm rates among prisoners of all ethnicities have steadily increased since 2013 – with the largest jump observed in mixed ethnicity prisoners, at 226 percent. 

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During the year ending June 2021, deaths in prison increased by 34 percent on the previous year. This increase has, in part, been attributed to Covid-19 – about one in eight prisoners in England and Wales had tested positive for the virus by February this year.

HMP Cardiff (Picture source: Matt Buck)
Gethin Jones, a HM Prison Service worker, told The National that austerity era funding cuts had exacerbated the situation. 

“The prison service in Wales has faced a decade of cuts to budgets, staffing levels and pay,” he said.

“This systematic degrading of a vital public service has significantly reduced the ability to protect the public and provide meaningful resettlement.

On the Policing Bill, Mr Jones said: “The Policing Bill has the potential to dramatically increase imprisonment levels at a time when the prison service in Wales has been weakened.

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“This type of legislation does nothing to address the pressing issues on the frontline of the criminal justice system, from the streets to the landings.”

The pandemic has presented steep challenges for people incarcerated in Wales, with family visits stopped, reports of inmates confined to their cells for 23 hours per day, and allegations of “inhumane” treatment.

These struggles would have been compounded for those housed in prisons far from home.

Research in 2018 revealed that Welsh prisoners were routinely placed in facilities across the border, while thirty percent of all prisoners in Wales had an English address prior to conviction. 

This is particularly the case for women, as Wales does not yet have a women’s facility.

HMP Swansea (Picture source: Tiia Monto)

Olivia Dehnavi, Policy Officer at Working Chance, a charity helping women with convictions access employment, believes that imprisonment causes disproportionate disruption to women’s lives.

“Prison doesn’t prevent harm, it perpetuates harm,” Dehnavi said.

“We know that women are predominantly sentenced to short prison sentences.

“Obviously, we don’t want them to be sentenced to longer terms, but these short sentences are ineffective.

“Women can lose their house, custody of their children, and their job –  just to go to prison for three weeks for shoplifting.

“When that woman comes out, she’s not in a better position to earn an income, to look after her kids, or to keep her tenancy.”

Devolution and the ‘jagged edge’

Why the Welsh imprisonment rate is so high is unclear.

The 2019 report by the Commission on Justice in Wales, however, suggested that the complicated bureaucracy of the shared England and Wales legal system – often described as the “jagged edge” – and the conflicting policy approaches of the Welsh and Westminster governments, resulted in particularly negative outcomes for Welsh people.

As a result, the Welsh Government is now pursuing fully devolved policing and justice powers, and plans to explore how those powers would be used in a project next Spring.

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For Dr Rob Jones, the Policing Bill encapsulates the tension and complexity at the core of our devolution settlement.

“You’ve effectively got this joint blueprint, for example, for youth justice in Wales, which has been produced by the Welsh Government, and by the HM Prison and Probation Service, and it’s about diversion – it’s about keeping children out of custody,” he told The National.

Mick Antoniw, Counsel General, announced plans to explore the Welsh vision for policing and justice next year

“Yet, what you also have coming down the line is this Home Office and Ministry of Justice-sponsored bill, which has a completely different way of talking about the problem.

“It’s about mandatory sentencing, it’s about society having lost its patience with repeat offenders, and so on.

“So what does that mean, for the Welsh vision? 

“Does the Ministry of Justice see that youth justice in Wales is different? 

“Or actually, does this new policy just completely bulldoze that prior agreement?”

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