The case for repeal
MPs and peers call for abolition of courts’ power to send people to prison for their ‘own protection’
An influential cross-party panel of MPs and peers has called on the government to abolish an outdated law that gives courts the extraordinary power to send people to prison for their ‘own protection’. Under the Bail Act 1976, the courts can 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 – even in cases where the charge they face could not result in a prison sentence.
A briefing published today (Wednesday 4 November) by the All Party Parliamentary Group on Women in the Penal System (APPG) states that the use of prison in this way “has no place in a modern justice system” and the case for repeal is overwhelming.
The briefing explains how the power is not used heavily, but when it is, it tends to be employed to detain the most vulnerable of defendants, predominantly those who have been let down by failings of care and support in the community.
Prison is a damaging and unsafe environment for people in crisis, but scrutiny of the power is virtually non-existent as the government does not collect data about how often adults and children are detained.
The courts can use it to remove someone’s liberty without expert evidence or any formal investigation into their circumstances, and without them having legal representation.
Baroness Corston, Co-Chair of the All Party Parliamentary Group on Women in the Penal System, said:
“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.
“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 briefing, Prison for their own protection: The case for repeal, draws on research by the Howard League for Penal Reform, a charity that provides administrative support to the APPG. It states that the power to remand a person for their own protection or welfare is “totally without parallel” in the criminal justice system.
Prison for their own protection
Ordinarily, a person who is waiting to be tried or sentenced can only be refused bail and remanded to prison where there are substantial grounds for believing that they present a risk to the community (by committing further offences on bail) and/or to the criminal justice process (by not attending court when required, or interfering with witnesses). Even then, generally they cannot be remanded to prison unless there is a ‘real prospect’ that they will go on to receive a prison sentence.
But none of these conditions are required for a judge or magistrate to remand a person to prison for their ‘own protection’, or in a child’s case their ‘welfare’, while they wait to be tried or sentenced. In fact, this power can be exercised even if the person is not facing a criminal charge that could result in a prison sentence.
Most commonly the power is used to detain those who present a risk of harm to themselves. They tend to be adults, frequently women, in mental health crisis whose needs are not being met by the social care system and healthcare providers. The Howard League is aware of a number of cases where the power has been used on women threatening to kill themselves.
The power is occasionally used when a person is considered to be at risk of harm by others. The Howard League is aware of cases where a defendant who is at risk of retaliatory attacks, or even being trafficked and exploited, has been remanded to prison for their own protection.
The briefing states that the power is out of step with other legislation – such as the Care Act 2014, the Children Act 1989 and the Mental Health Act 1983 – that specifically provides for the protection and welfare of adults and children.
Places of safety
The power is also frustrating recent reforms. Changes to restrict the use of police cells as places of safety were designed to ensure that people who are unwell get help from mental health services at the earliest opportunity. Research suggests, however, that in order to avoid police cells being used as places of safety, instead of using their powers under section 136 of the Mental Health Act, the police are simply charging people with low-level offences and passing the challenge of addressing their mental health crisis to the courts. Once at court the power to remand for ‘own protection’ is used, with the perverse result that, although a short period of detention in a police cell is avoided, people in mental health crisis are instead subjected to weeks of detention in prison on remand.
The briefing states that some magistrates and judges remand people, particularly women, for their own protection under the misguided belief that mental health intervention can be achieved more quickly in prison when, in fact, the opposite is the case.
While in the community there are strict time limits to ensure swift admission to hospital for those who need it, in prison it takes on average 100 days to transfer someone to hospital during which time their condition is likely to be deteriorating.
In 2019, Her Majesty’s Chief Inspector of Prisons found that, in more than half of men’s prisons inspected, there was a lack of assessment and treatment for people with mental health needs, emotional needs or learning disabilities.
The briefing describes as a “total misnomer” the idea that prisons are suitable places to hold people who need protection from self-injury. Government statistics show that, in the year to June 2020, someone in prison died by suicide every five days in England and Wales. In the 12 months to March 2020, incidents of self-injury were recorded at a rate of 175 per day.
People on remand are especially vulnerable given the uncertainty of their position and the fact that they tend to be held in overcrowded local prisons where conditions are particularly bad.
Women and children are particularly at risk. The rate of self-injury among women in prison is almost five times that of men, and the rate of self-injury among children rose by 66 per cent in the year to March 2020.