Out of Sight, Out of Rights – The UK’s Controversial Prisoner Transfer Plans

It was recently announced by The Telegraph that occupancy within the prison estate has reached a catastrophic level, with 99.35% of male prisons being full, whilst the female estate has reached 97%. With some prisons in England and Wales going to drastic measures to be able to house more and more individuals; the Independent Monitoring Board at HMP Wandsworth, the most overcrowded prison in the country, noted that:

“The prison remains seriously overcrowded with most men sharing cells designed for single occupancy […] The certified normal accommodation, or number of prisoners a prison can hold without being crowded, remained at 961 […] There were 1,584 (2020/21:1,385) prisoners at the end of the reporting period…”

And up to 400 police custody cells have been used a long term prison cells recently. In short, the situation is dire and the conditions in the majority of prison estates are now reaching inhuman levels. One measure to address the problem currently mooting its way through Parliament is the Sentencing Bill 2023-24, this Bill, were it to become an Act, would address the overcrowding problem by reducing the number of people who enter the system in the first place. Section 6 of the Bill would make it so that if a person is sentenced to 12 months or less in prison:

“The court must make a suspended sentence order […] unless the court is of the opinion that there are exceptional circumstances which justify not making the order.”

This could include offences such as:

• Assault on an Emergency Worker
• Theft
• Manslaughter
• Possession with intent to distribute Class A drugs
• Possession of a bladed article
• Possession of indecent photographs of children

But despite the obvious concerns with an inability to sentence such offenders, this would not in any way impact the current overcrowding concerns, and it would still only address the lower level offences which result in a sentence of 12 months or less. No, the plan to address the current overcrowding is a much braver, extreme, and frankly unbelievable one.

Sections 32 to 26 of the Criminal Justice Bill 2023-24, which is set to finish its passage in the House of Commons shortly before being passed to the House of Lords, makes provision for the transfer of prisoners detained within England and Wales to institutions in foreign countries. Notably, the Bill makes provision:

“about any arrangement made between the United Kingdom and a foreign country which provides for prisoners (or any description of prisoners) to be detained, in the foreign country, for part or all of a period for which they are liable to be detained.”

More specifically, the Secretary of State would be empowered to issue a warrant in relation to any prisoners in England and Wales for their removal to any countries with whom the UK has an agreement. If this rings bells to the recently ruled unlawful Rwanda policy, then you may see the start of the problem. Such transfers and deportations rely on ill formed memorandums of understanding, such memorandums have been shown time and time again to be ineffective at safeguarding individuals whom they allow the mistreatment of.

The unenforceable and private nature of assurances and MoUs represents a significant challenge to human rights. Of such agreements, extradition barrister Ben Keith has stated:

“the reality is that when the likes of Algeria swear they will not torture a deportee it is a promise they either cannot or do not want to keep. Merely reciting ‘see no torture, hear no torture, speak no torture’ does not prevent it happening.”

This issue of broken promises is one which rears across the countries with whom MoU’s have been agreed so far and it is a fact which will undoubtedly rear its face in relation to any future agreements, treaties or memorandums. In the case of Abu Qatada v United Kingdom [2012], the state of Jordan gave express promises to not allow the use of torture evidence in his trial, an issue which the ECtHR believed was likely. However, upon return to Jordan on the basis of a Mutual Legal Assistance Treaty, evidence obtained via the use of torture was relied on, in direct violation of the MLAT. Regardless of the fact Othman was acquitted, the use of such evidence clearly mocks these promises and agreements and shows how, despite assurances and battles at the highest level of the government and judiciary, such assurances are so easily broken without any ramification and are effectively worthless.

This is the position that an uncountable number of prisoners currently within the UK prison estate face. A risk of treatment that could never have been envisaged. Many will argue that if these individuals did not want to risk this they simply would not have committed the offences, but such a reductive black and white argument fails to appreciate the entire nuance of the issue. At the highest way of analysing the argument, the UK should be responsible for its own citizens punishment and rehabilitation. At the more nuanced level, there is an implied consent that, when a person commits an offence within the UK, they reasonably understand they may be tried, found guilty, and sentenced under UK law and within a UK establishment – this Act entirely destroys this element.

Bringing the debate back to the human rights level, any British prisoner who is transferred abroad would undoubtedly face actions, omissions and an environment which leads to conditions which are against the principles of civil liberties. Prisoners Abroad, in its response to the Bill Committee, noted that:

“As the only charity supporting British prisoners held overseas, we see the significant levels of isolation and trauma this causes; from being imprisoned so far away from home and family, not understanding the language, and being excluded from opportunities to work and participate in effective rehabilitation programmes. This inaugural report shines a stark spotlight on the desperate challenges that face British citizens struggling to survive in prisons around the world. We supported 1,170 British people in prisons overseas last year, with significant numbers facing severe isolation; three-quarters of people detained in non-English speaking countries did not speak the language, and six in every ten people did not receive any form of visits. People struggle to afford access to basic essentials like nutritious food and clean drinking water, with nearly a third not receiving any money or financial support from anyone outside the prison, and only 29% having had some form of work opportunity in prison.”

In concluding, the stark reality of overcrowding in UK prisons has undoubtedly reached a critical point, necessitating urgent and humane responses. Yet, the solutions proposed, particularly through the Sentencing Bill 2023-24 and, more alarmingly, the provisions within the Criminal Justice Bill 2023-24 for transferring prisoners to foreign countries, stand not only as deeply flawed but as a direct affront to the principles of human rights and dignity. These proposals, far from addressing the root causes of overcrowding, merely shift the burden of responsibility, exposing prisoners to potentially grave human rights abuses in jurisdictions beyond the reach of UK oversight and accountability.

As advocates for prisoner rights and human dignity, we vehemently oppose these proposals. We call for a re-evaluation of the UK’s approach to criminal justice, one that centres on the rights and rehabilitation of offenders, rather than their expulsion and abandonment. The solution to overcrowding must be found within the realms of justice, humanity, and innovation within our borders, not beyond them. It’s time for the UK to take a stand for the principles it purports to uphold and reject these inhumane and shortsighted policies in favour of a system that respects the dignity and rights of every individual, irrespective of their mistakes.

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