- Progress in the Penal System (PIPS) - https://pips.iprt.ie -

1.5 Lessons from the pandemic in Ireland (2020)

Lesson 1: Strong leadership and political will can make penal reform a reality

The process and speed by which the right decisions were taken and implemented in the early stages of the pandemic should be documented and replicated. For example, the swift reduction in prison numbers, which had been recommended over many years by numerous expert groups,[38] was brought about in the space of weeks. This demonstrates what can be achieved when there is leadership and political will.

Lesson 2: Penal moderation is possible

Early action to alleviate prison overcrowding was crucial to Ireland’s success in keeping Covid-19 out of prisons. Overcrowding undermines safety and health in prisons in ordinary times, and elevates risk during a pandemic. This was outlined in a joint statement by WHO, United Nations Office on Drugs and Crime (UNODC), The Joint United Nations Programme on HIV/AIDS (UNAIDS) and the Office of the High Commissioner for Human Rights (OHCHR):

“In the light of overcrowding in many places of detention, which undermines hygiene, health, safety and human dignity, a health response to COVID-19 in closed settings alone is insufficient. Overcrowding constitutes an insurmountable obstacle for preventing, preparing for or responding to COVID-19.”[39]

At the outset of the pandemic, there were over 4,200 prisoners in custody in Ireland.[40] This meant the majority of closed prisons across the estate were overcrowded or at capacity. The Irish Prison Service and the Department of Justice took action to reduce the prison population by 10% to 3,807 within a month of the declaration of the pandemic.[41]

However, while Ireland showed leadership in moving to reduce its prison population, it could have gone further. Countries that released a higher percentage of people from prison include: Turkey (35%), Cyprus (16%), Slovenia (16%), Portugal (15%) and Norway (13%).[42]

The majority of prisoners released were those serving a sentence of less than 12 months (almost two-thirds of those released[43]) or had fewer than six months left on their sentence.[44] These prisoner releases were described by the Department of Justice as ‘low risk’.[45] However, there were other persons in the system who could be categorised as low risk to the community but who were not considered for early release within the criteria set.[46] In particular, the removal of the statutory bar on temporary release for those sentenced for certain drugs and firearm offences, as recommended in 2014 by the Penal Policy Review Group (PPRG),[47] should have been implemented.

Importantly, the reduction in the prison population did not compromise public safety. Of 852 prisoners released from the beginning of the pandemic to June 2020, only 6% were returned to prison; some of these were returned solely on the basis of non- compliance with temporary release conditions.[48] This presents an opportunity to radically rethink responses to less serious offending, with a view to abolishing short custodial sentences completely.

Continuing to reduce prisoner numbers is essential to achieving a best practice penal system in Ireland.[49] The judiciary, the probation service, and the prison service all play an important role in achieving this together. Necessary actions include the commuting of short sentences to community sanctions, and enshrining the principle of imprisonment as a last resort in legislation and in sentencing principles. The use of remand detention must be an exceptional measure, and criteria for temporary release must be reviewed to ensure the primary focus is on actual risk to public safety.[50] It is only through sustained penal moderation that humane and rehabilitative regimes in prisons can be achieved.’

Lesson 3: Safe custody limits are imperative

Since 2017, the PIPS project has stressed that to ensure safe custody, every closed prison should operate at least 10% below its maximum capacity.[51] The experience of the pandemic reinforced the critical importance of meeting this standard at all times, so that prisons have the flexibility to respond to emergency situations such as the demands of an infectious disease.[52]

A repeated action recommended in PIPS 2017, PIPS 2018 and PIPS 2019 was for the Office of Inspector of Prisons to update and publish maximum custody limits for all prisons by end 2020.[53] In 2019, IPRT further recommended that the Irish Prison Service should publish operational capacities that reflect actual capacity due to cell or wing closures.[54]

Furthermore, maximum prison capacities should be calculated on the basis of single occupancy of cells.[55] To achieve single-cell occupancy across the prison estate, prisoner numbers need to be below 3,200. At its lowest, the daily prison population stood at 3,672 on 19th June 2020; this had increased to 3,744 on 7th August 2020.[56] The prison population was above 3,800 at end of November 2020.

Single-cell accommodation is best practice in ordinary times, and was the norm across the Irish prison estate until 1983[57]. In the context of a life- threatening pandemic, providing access to single- cell accommodation across the entire prison estate should be an obligation, and doubling up of cells in 2019 and 2020 must be reversed.

Lesson 4: Prison health is public health

A positive outcome of the pandemic was the clear recognition of the continuum between prison health and public health, and between prisons and the community. Prisons were included among relevant residential settings in national health guidance and daily case number announcements, and the IPS Executive Clinical Lead was appointed to the National Public Health Emergency Team (NPHET) Vulnerable Persons Subgroup.[58]

Public health had something to learn from prison health in 2020. A feature of prison healthcare in Ireland is its experience of dealing with infectious diseases. Following an outbreak of tuberculosis in Cloverhill prison in 2011,[59] a dedicated infection team was set up[60] and a Head of Infections Control appointed. Early planning, prevention and training in Personal Protective Equipment (PPE) and infections controls made a critical difference. Up to August 2020, there had been no confirmed cases of Covid-19 among prisoners in Ireland, and no deaths. This was in contrast to other residential settings in Ireland, which had recorded over 1,000 Covid-19 related fatalities by end May 2020.[61]

The Irish Prison Service received national and international praise for how it managed its response to Covid-19. The IPS submitted a paper on its contract tracing system to the World Health Organisation as a model of best practice.[62] It highlighted the benefits of the collaborative approach taken by the Irish Prison Service and the Health Service Executive (HSE), which led to the rapid creation of in-prison contact tracing teams in every prison.

Continuity of care between prison and public healthcare plays a vital role in addressing health inequalities, as articulated by the WHO[63] and in the UN Mandela Rules[64]. In PIPS 2017, PIPS 2018 and PIPS 2019, IPRT recommended better integration between prisons health and public health through the transfer of responsibility for prison healthcare to the Department of Health.[65] The experience of the pandemic in 2020 shows the benefits for the wider community of a joined-up healthcare approach, along with investment in prisons healthcare.[66]

Lesson 5: Confinement has negative consequences for physical and mental health

Isolation, loneliness and reduced contact with the outside world, including children and families, has impacted on the mental health and wellbeing of men and women in prison during the Covid-19 restrictions. While the pandemic was initially seen as a physical health crisis, the United Nations has highlighted that the Covid-19 crisis “...has the seeds of a major mental health crisis as well, if action is not taken.”[67] These concerns are particularly acute in Ireland given the pre-existing high prevalence of mental health difficulties and illnesses among the prison population.

Restrictions on out-of-cell time, including access to fresh air and exercise, also impact on physical health. In its analysis of amendments to the Scottish Prison Rules in response to the Covid-19 situation, the Scottish Prisoner Advocacy and Research Collective observed that:

“in the context of coronavirus, care of people in prison is being reconceptualised purely in terms of protection from coronavirus and health is being reconceptualised only as bare physical survival.”[68]

Indeed, there is evidence that isolation and solitary confinement not only causes psychological difficulties but also affects physical health. Physical effects of solitary confinement include “gastro-intestinal and genito-urinary problems; deterioration of eyesight; lethargy, weakness and fatigue; heart palpitations; migraines; weight loss; back and joint pains.”[69] Solitary confinement also has disproportionate effects on older prisoners, many of whom are in poor physical health, “through lack of exercise increasing risks of arthritis, heart disease and diabetes. Lack of sunlight may create deficiency in vitamin D, exposing prisoners to fractures.”[70]

Increased numbers of people in prison were placed on a restricted regime during the pandemic. This included medical practices, such as ‘cocooning’, ‘quarantining’ and ‘isolation’.

The imposition of further restrictive measures on people already deprived of their liberty[71] has been a harsh experience. Additional restrictions imposed for people cocooning[72] were viewed by some prisoners as a ‘double punishment.’ This was captured by a qualitative research project with men and women cocooning in prison conducted by the Inspector of Prisons and Maynooth University:

“It often feels that the small group I go to the yard with [...] are the only prisoners in the place. This virus has sucked the life out of everything, even this prison.”[73]

Others reflected:

‘I surprise myself I have become so depressed since being cocooned: I feel that I am isolated and solitary. I am also surprised that I am unable to lift myself out of this depression. There is only a few times in my life when I felt suicidal and this is one of them. [...] Certainly my sleep is affected by lack of activity.’[74] ‘I realise prison service is doing its best, and the priority is in preventing us oldies catching the virus, for which we must be thankful. When will it end?’[75]

The extracts from prisoners’ journals offer an invaluable insight into the impact of restricted regimes, including solitary confinement. The findings have relevance for all people in prison placed on a restricted regime for any reason. Human beings are ‘wired to connect’ and a lack of wider social contact and contact with the outside world can have deep, lasting and damaging effects on a person’s mental wellbeing. The recommendations of the Report should therefore be acted on, and all measures taken to minimise the negative effects of isolation, and to ensure it is used for the minimum time possible. Mitigating against the negative mental health impacts of Covid-19 measures and developing mental health crisis plans must be a priority, along with longer-term mental health provision as restrictions ease.[76]

Lesson 6: Restrictive measures must be continually reviewed

Court cases reported in the media provide further insight into the severity of restrictions imposed on prisoners during the Covid-19 pandemic. A prisoner who showed a symptom of Covid-19 and was kept in his cell 24 hours a day challenged his treatment in the High Court. It was argued that keeping the man in his cell for 24 hours a day was contrary to the Prison Rules, 2007[77] and disproportionate. In this case, the judge found that there was no absolute right to guarantee a prisoner’s access to one hour’s exercise as outlined in the Prison Rules, 2007 (‘the Rules’).[78] The Rules were later amended through a statutory instrument in July 2020 that gave powers to the Director-General of the Irish Prison Service and the Governor of a prison to allow the suspension of access to physical exercise along with visits.[79] This amendment was made to the Rules to prevent or limit the spread of an infectious disease. IPRT regrets the lack of consultation on these amendments to the Prison Rules, which are linked with public health advice but do not include safeguards such as maximum time limits nor place additional requirements on prisons to mitigate the suspension of exercise or visits.

In this regard, Principle 4 of the CPT guidance is relevant:

“Any restrictive measure taken vis-à-vis persons deprived of their liberty to prevent the spread of COVID-19 should have a legal basis and be necessary, proportionate, respectful of human dignity and restricted in time.” [80]

The lack of a meaningful human rights impact assessment of Covid-19-related restrictions on people in prison is a significant gap. Parliamentary committees on justice and on human rights in England and Wales and in Scotland played an important role during the Covid-19 pandemic in holding the Government to account across areas of the criminal justice system including prison, probation and courts systems. This included scrutiny of pandemic-related amendments to existing rights, such as daily access to showers, under the Scottish Prison Rules; and the disproportionate impact of curtailments of prison visits on the rights of children whose mothers are in prison in England and Wales.[91] There is no such record of Oireachtas scrutiny of amendments to the Rules introduced prisons in Ireland in response to the pandemic in July 2020. Parliamentary oversight acts to promote human rights whilst also supporting transparency, accountability and public confidence in the justice system. IPRT echoes the recommendation of the Irish Human Rights and Equality Commission (IHREC) that an Oireachtas Committee on Human Rights, Equality and Diversity should be established, which would have a cross-departmental mandate to examine the legal, social and economic rights implications of Covid-19.[82] A human rights impact assessment should be conducted on Covid-19 related measures introduced in prisons.

All international human rights bodies are clear: any restrictive measures introduced in response to Covid-19 in prisons must be clinically necessary, proportionate and time-limited. As Independent Monitoring Boards (IMBs) in England & Wales have noted, “the longer it takes for prison life to return to normal, the worse the long-term prospects for prisoners”.[83] Restrictions imposed to contain the spread of the virus must be continually reviewed to ensure they are proportionate, and “must be lifted as soon as they are no longer required”.[84] As Covid-19 will remain a threat for the foreseeable future, the State must invest in additional measures to ensure that prisoners’ rights are met.

Lesson 7: Technology has the potential to transform prisons

Another positive development during the pandemic was the roll out of technology in Irish prisons, including in-cell telephony and the introduction of video calls[85] on 11th April 2020[86] as a substitute for physical prison visits. This was an important step towards maintaining prisoners’ contact with their children and families during Covid-19 restrictions, following the suspension of visits in March 2020.[87]

Digital technology was also used to facilitate education when schools in prisons were closed due to the pandemic. For example, some students participating in Open University were provided with in-cell laptops to continue their studies.[88] While the virtual classroom is not a substitute for the important role that schools play in supporting learning, civic engagement and personal development in prisons, technology has an important role in supporting education, self- development and normalisation. It also supports engagement with wider educational communities.

In PIPS 2017 and PIPS 2018, IPRT had recommended action on facilitating secure access to technology in prison as part of educational development,[89] which is becoming the norm internationally. In-cell digital technology should be retained and further developed, including hybrid models of interactive digital education, to facilitate education with the overall aim of supporting rehabilitation and normalisation.

An initial review of changes to practices undertaken by the Probation Service has also found that digital tools could enhance services in future,[90] although it should not replace face-to-face contact. An opportunity now exists to explore new methodologies and ways of working,[91] in order to enhance the delivery of community sanctions and community supervision, reduce imprisonment, and support better access and engagement with education in prison.

Lesson 8: Good communications supports safer prisons

Good communications, and a ‘whole of prison approach’ that engaged prisoners and staff, was central to keeping Covid-19 out of prisons in Ireland.[92] The role that the Irish Red Cross Prisoner Volunteers played in informing and updating the prison population through the development of regular information leaflets was viewed as instrumental.[93] Proactive communications received positive comment from prisoners who were ‘cocooning’:

“I have 6 leaflets from the IPS re: the virus. Communication is very good, explaining why normal prison routine has been so drastically changed. [...] Info sheet[s] from the IPS encouraging us to keep our minds busy [...] are very useful.” (Journal 37)[94]

The Inspector of Prisons noted the enhanced level of communication in prisons by way of the provision of weekly newsletters to prison and staff, and recommended it should continue post- pandemic.[95] In its response to Ameliorating the Impact of Cocooning on People in Custody, the IPS recognised the importance of its enhanced communication with prisoners, stating:

“It is essential that this enhanced communication system includes listening to the feedback and concerns of our prisoner population. The Service recognises that it is important that the voices of prisoners are listened to, so that we can respond to the needs of the prison population and continue to provide safe and secure custody and rehabilitation in line with best practice.[96]

IPRT strongly welcomes this statement and commitment by the Irish Prison Service. This should include action on increasing prisoner representative groups, as recommended in PIPS 2017 and PIPS 2018.[97] Proactive external communications by the IPS through digital media and a telephone helpline for families were also positive developments, and should be built on in future.

Lesson 9: Lack of published information means lack of accountability

PIPS 2019 set out a clear statement on the critical role that robust inspections, monitoring and complaints mechanisms play in ensuring accountability across the penal system, including behind prison walls.[98] Transparency and accountability is essential to the protection of human rights. The complete lack of published prison inspection or monitoring reports in Ireland during the pandemic period is a major gap in accountability. It means that prevailing conditions in Irish prisons are unknown, and it does not support public scrutiny and confidence in the penal system.

Independent prison monitors across Europe adapted their practices from early in the pandemic to comply with the ‘do no harm’ principle. Adaptations included reduced time in prisons and interviewing prisoners after release. In Ireland, the Inspector of Prisons undertook one-day visits to prisons with particular focus on out-of-cell time and provision of meaningful contact,[[footnote num99]] and maintained a ‘do no harm’ approach. However, no prison inspection reports were published during 2020. In comparison, in England and Wales, HM Inspectorate of Prisons undertook and published reports on ‘short scrutiny visits’ that shone a light on conditions for prisoners during the Covid-19 pandemic.[100]

In May 2020, the Minister for Justice published prison visiting committee annual reports for the year 2018.[101] This significant time delay in publication meant the reports bore no relevance to conditions in Covid-19. In comparison, the Independent Monitoring Boards (IMBs) in England and Wales published details on the severe impact of Covid-19 on the prison population in July 2020.[102]

Robust systems of inspections, monitoring and complaints are even more important during a period in which those held in closed settings were at increased risk of having their rights violated with fewer external eyes overall. While the increased budget for the Office of the Inspector of Prisons in 2021 is positive,[103] the ratification of OPCAT and the establishment of a National Preventive Mechanism (NPM) would have provided additional human rights protections and safeguards to people detained during the pandemic. This should now be a priority.

Lesson 10: Collaboration and community engagement benefits everyone

The need for stronger inter-agency co-operation around release has been a recurring recommendation of the PIPS project,[104] along with strengthening of links between prisons and the community to better support reintegration.[105] In 2020, improved planning around structured releases between the Irish Prison Service and community-based organisations was reported during the pandemic’s early stages. This aimed to prevent people from coming out of prison and into homelessness. Factors cited as having helped to address homelessness during this period included the expansion of housing provision, alongside swift decisive actions from all sectors[106]:

“When these various factors coalesced, including top level institutional and political support, clear coordination coupled with command and control decision making capabilities, existing organisational capacity and a willingness and ability to adapt this, and the sheer dedication and bravery of front line service workers, decisions that would normally take many months or years were effected within days and weeks.”[107]

Services such as the Irish Association for Social Inclusion Opportunities (IASIO) were designated as ‘frontline’ services,[108] and additional resettlement coordinators were employed by the Irish Prison Service.[109] Phone support services provided by IASIO were extended to remand prisoners to improve access to essential services.[110] The provision of telephone access to prison psychology, prison chaplaincy, IASIO, and Merchants Quay Ireland was positive. However, wider community involvement, including access to services that support reintegration, has not been adequately facilitated:

“Projects who are linking in with people in prison are concerned because they don’t have any arrangement for one-to-one access at the moment to check how people are getting on. Prison Link Workers are finding an inconsistent approach across the prisons to making remote access available to them so they can provide continuity of care.” [111]

Organisations such as Citywide and the National Traveller Women’s Forum, among many others, play a vital role in supporting people’s needs in prison and ensuring continuity of care between prison and community. This is reflected in PIPS Standard 20, which emphasises the importance and benefits of engagement between civil society and prisons.[112] Strengthening links with the community on the outside supports rehabilitation. It also acts as an additional safeguard in terms of prison oversight.

Early pandemic responses demonstrated what can be achieved through a joined-up approach across agencies and community-based organisations. This should be replicated into the future to achieve the best possible outcomes for those leaving prison, for their communities, and for all society.

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