Rehabilitation,risk management and prisoners’ rights

Introduction

This article will argue that the legal status of prisoners in the current promotion of rehabilitative interventions, and particularly in the development of therapeutic programmes for personality disordered inmates, is both uncertain and unprotected. This applies not only to human rights that permit a degree of limitation in pursuit of other social goals, but also to those rights that are defined as absolute and beyond compromise; most notably, the right to life and the right to be protected from torture and other cruel and inhuman treatment. The consequences of this not only weigh against the integrity and sustainability of rehabilitative provision but also seriously threaten the legitimacy of therapeutic prison regimes.

Our concern to investigate the ways in which risk, rights and rehabilitation are negotiated in prisons was prompted by two related incidents – the unlawful killing of Robert Coello and the subsequent self-mutilation of his killer, fellow prisoner Lee Foye. Coello was beaten and stamped to death in his cell at HMP Grendon Underwood in August 2010. While awaiting trial at HMP Woodhill, Foye cut off his own ears in separate incidents three months apart (Allison, 2011). Convicted of Coello’s murder in November 2011, he was sentenced to life imprisonment with a minimum term of 35 years, the sentence to run concurrently with the 16 year minimum life term he was already serving for the murder of his former lover. At trial the court heard how Coello, who had volunteered for admission to the therapeutic regime at HMP Grendon, was attacked after he upset prisoners by talking in group therapy about the offences for which he had been convicted – four counts of rape against a child. Contrary to usual practice, Coello had been accepted and placed on arrival at the prison on a wing with prisoners who were not sex offenders because there was no room on the more specialized wing to which he would ordinarily have been allocated. At Foye’s trial the Director of Therapy at Grendon admitted that he had been ‘uneasy’ about this accommodation of Coello, but that it had been made clear to him ‘in no uncertain terms’ that the prison ‘needed to fill these beds no matter who was available’ (McClatchey, 2011). The death of Coello and the self-mutilation of Foye raise difficult questions about the institutional tensions surrounding the intersection of risk, rights and rehabilitation in custodial settings. Despite the rhetoric of official policy, the reduction of risk, the protection of rights and the pursuit of rehabilitation are not always mutually compatible objectives in the prison context. We argue that, how they are currently interpreted and incorporated into the management of prisons has seriously damaging implications for the extent and nature of the duty of care that is extended to prisoners exposed to intensive psychologically informed treatment interventions.

Rehabilitation: Obligation and Implementation

While the purpose of imprisonment has long been contested, its rehabilitative function has gained increasing international and domestic recognition. However, the underlying rationale of the rehabilitative principle remains unclear. Article 10(3) of the International Covenant on Civil and Political Rights (ICCPR) 1976 places a legal obligation on signatory states to provide positive prison regimes and refers to the essential aim of the treatment of prisoners as being ‘their reformation and social rehabilitation’. In contrast, the United Nations Standard Minimum Rules for the Treatment of Prisoners (1957), although not formally binding upon states, specifically links the treatment needs of prisoners to the protection of society against crime (Rule 58). Between these extremes, the European Prison Rules (2006) advise that ‘the regime for sentenced prisoners shall be designed to enable them to lead a responsible and crime free life’ (Rule 102.1). The duty under international law to provide rehabilitative regimes has become increasingly recognized in European jurisprudence and has been incorporated into the domestic law of some member states. In Germany, for example, the constitutional principle of resocialization derived from the rights and principles of the Basic Law grants prisoners an economic and social right to state resources directed towards their resocialization (Lazarus, 2006). The status and force of any universal obligation in respect of rehabilitation is less clear in the UK, although the ratio of the Grand Chamber of the European Court of Human Rights in Dickson v UK [2007] relies in large part on the government’s failure to give sufficient weight to the offender’s right to have his rehabilitative needs (in respect of family life) considered. However, in the case of offenders sentenced to indeterminate terms of imprisonment, it is now clear that rehabilitation is a necessary purpose of any part of the detention imposed solely on grounds of public protection. In order to avoid the charge of arbitrary detention, the State is obliged to provide the resources necessary to enable prisoners in the post-tariff part of their sentence to demonstrate that the risk they presented at the date of sentence has diminished to a level consistent with release into the community (James, Wells and Lee v UK [2012]: paras 187–210). In Rangelov v Germany [2012], a case concerning the provision of therapy in preventive detention, the Chamber further emphasized the requirement for the State to provide opportunities for ‘intensive and individualised’ treatment where the standard therapies are not offered or are not appropriate (para. 97). This means that attention must be directed to the needs of the prisoner and that more by way of adapted and tailored interventions may be required than is currently provided in the UK.

The concept of rehabilitation and the various terms associated with it remain subject to differential interpretation and have been applied to a diverse range of prison regimes. In the UK, rehabilitation has a long and complex history and in its heyday in the 1960s was commonly characterized as penal welfarism. More recently, the UK government has embarked on a penal policy that aims to protect the public by reducing reoffending through the expansion of rehabilitative programmes. This re-emergence of rehabilitation as a central goal in penal policy manifests less as a concern with welfare and more as a component of risk management within the ‘new penology’. Prisons are now to play a central role in the delivery of accredited offending behaviour programmes that are principally driven not by a concern to promote the welfare or rights of the offenders, but by a broader disciplinary process that aims primarily to manage the risk such offenders pose to the public. The significance of this shift of emphasis should not be underestimated or assumed to have only a rhetorical import, employed to mask and thereby facilitate a liberal reform in an era unsympathetic to the needs of offenders. By focusing attention on the control of risk, investment in rehabilitative programmes is justified by an economic calculation of the effectiveness of the protection it offers to the public. There is no suggestion that prisoners may have a legitimate and independent claim to services that address their needs. Although the profiles of prisoners reveal exceptionally high levels of social deprivation and exclusion, any suggestion of their entitlement to social justice remains unacknowledged and unspoken in the present government’s policies. This reflects not only the reticence of successive governments to award what could be conceived as special privileges to prisoners, but also demonstrates the fundamental uncertainty that attaches to the legal status of prisoners in England and Wales. Although prisoners enjoy statutory protection of their human rights, some limitations are recognized as being the legitimate consequence of a custodial penalty. However, the nature and extent of these restrictions, and the residual rights that remain, have not been clearly defined or justified and are consequently susceptible to change. Lazarus (2006: 742) has pointed out that the lack of a consistent and transparent jurisprudence in this area is due, at least in part, to the failure of the English legal system to identify those limitations that are ‘contained in the custodial sanction as a sentence, as distinct from what is entailed in the administration of the custodial sentence’. The ‘key distinction’ between the punitive intentions of the sentence and the punitive effects of the administration of the prison, inevitably depends upon a clear rationale both for sentencing and for the development of prison regimes. This conceptual clarification enables certain normative standards to be established by which the legitimacy of any interference in prisoners’ rights can be evaluated, as well as the existence of special duties of care owed to them by the prison authorities.

The Legal Framework of Prisoners’ Rights

It is arguably through the development of human rights standards in UN treaties and the European Convention on Human Rights that the legal protections afforded prisoners have been most clearly articulated and vigorously pursued. The United Nations has issued a series of standards that set out comprehensive rules for the treatment of prisoners (see UN Standard Minimum Rules for the Treatment of Prisoners 1977; UN Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment 1988; UN Basic Rules for the Protection of Juveniles Deprived of their Liberty 1990; UN Basic Principles for the Treatment of Prisoners 1990). But it also adopts a policy of inclusivity in its general rights documents. For example, the International Covenant on Civil and Political Rights requires all detained persons to be treated with humanity and respect for their dignity; and the UN Convention Against Torture explicitly requires member states to keep under review the treatment of those subject to arrest, detention or imprisonment (ICCPR Art. 10; UN Convention Against Torture Arts 11 and 16). The European Prison Rules (Council of Europe, 2006) similarly sets out a series of minimum standards. But it has been the European Convention on Human Rights (ECHR), and the subsequent jurisprudence from the European Court of Human Rights (ECtHR), that has had the greatest impact in establishing a body of prisoners’ rights that have legal force in the routine administration of prisons in the UK. ¹ The courts, in England and Wales and in Strasbourg, developed an early vigilance in the protection of prisoners’ rights to fair procedures and due process. Under Articles 5 and 6 important reforms were introduced to prison disciplinary processes and to procedures affecting the release of prisoners serving indeterminate sentences (see Easton, 2011). The courts were more reluctant to impose a heavy administrative burden on the prison service in relation to their broader duty of care, particularly where this concerned prison conditions. The current legitimacy of prison regimes in England and Wales formally rests in large part, on compliance with the Human Rights Act, ² particularly compliance with the positive obligations inherent in the protection of prisoners’ right to life, guaranteed under Article 2 of the European Convention on Human Rights, and the right to be free from torture and inhuman and degrading treatment, under Article 3. But the existence of a human rights framework for prisoners does not necessarily ensure that institutional practices are embedded in a culture of rights. The management of specific tensions within prisons suggests that a commitment to prisoners’ rights is frequently trumped by competing considerations.

Institutional Tensions: Risk and Rights

Murphy and Whitty (2007) have called for greater attention and understanding of a range of intersections between risk and human rights that now characterize prison governance. One example is the intersection that exists between the risks inherent in the provision of rehabilitative treatment and the demands of other types of risk management in prisons. The competitive tension that arises from this tends to be responded to by the setting of priorities that ostensibly reflect the public interest. Typically portrayed in terms of a balancing metaphor, it weighs claims for prisoners’ welfare against the protection of the public from crime and the prudent management of public expenditure. ⁴ Although the allocation of priority to institutional objectives is arguably part of the routine management of any organization, operational decisions in prisons reflect a coercive power that is unparalleled in any other social institution. This is clearly evidenced when balancing the competing discourses of ‘risks’ and ‘rights’ (see Coyle, 2009). It will be argued that the co-existence of these rival discourses within a prison regime raises a conflict of interest, the resolution of which routinely inhibits the ability of the prison authorities to meet their duty of care and the protection of prisoners’ rights.

Institutional practices balance a number of demands that frequently exist in tension: justice, respect, humanity, care, order, security and safety. Their resolution by prison staff is shaped by a normative framework that routinely prioritises other managerial objectives over the protection of individual rights. Under these circumstances the duty of care owed to prisoners by the State needs stringent protection, not only in retributive and deterrent regimes but also in rehabilitative environments. It will be argued that, in practice, the positive obligations that arise from the right to life and the right to be free from torture and inhuman and degrading treatment require a differentiated response that takes account of the specific structural and cultural conditions that can prevail in different rehabilitative settings. This need is particularly acute when prison rehabilitation involves the engagement of vulnerable populations in psychological therapies. The urgency of these issues has become more compelling since the government’s rehabilitation revolution has targeted the treatment of personality disorder in prison and redirected investment from the Department of Health.

Prison as a Site for Treating Vulnerable Populations

Like penal establishments in other western democracies, prisons in England and Wales principally accommodate a population of socially excluded people, characterized by high levels of material poverty and other indices of social inequality. Surveys of adult prisoners and young offenders in custody reveal that these populations have experienced significantly greater social disadvantage than the general public. They are more likely to have been excluded from school, to have left school prematurely and without qualifications; to have low numeracy and literacy levels; to have run away from home as a child, spent time in the care of the local authority, to be a lone parent, teen father or teen mother; and to have family members with criminal convictions (Social Exclusion Unit, 2002). They are also significantly more likely than the general population to have been unemployed and in receipt of state benefits; and to have experienced periods of homelessness and sleeping rough. Many offenders enter prison with pre-existing physical and mental health problems, often associated with illicit drug use and hazardous levels of alcohol consumption (Watson et al., 2004). An international review of prisoners’ mental health concluded that prisoners were several times more likely to have psychosis and major depression, and about 10 times more likely to have antisocial personality disorder, than the national populations from which they were drawn (Fazel and Danesh, 2002). Based on the findings of a survey carried out for the Department of Health (Singleton et al., 1998), ⁷ it has been estimated that the proportion of the prison population showing signs of mental illness rose seven-fold in England and Wales following the closure of psychiatric hospitals and their replacement with the policy of ‘care in the community’ in the late 1980s (Narey, 2002).

That prisoners in England and Wales have rehabilitative needs is beyond doubt, what is more contested is the capacity of the prison to deliver programmes that address these needs. Despite a long-standing commitment to the diversion of mentally disordered offenders away from the criminal justice system and towards interventions by health and social services, prisons in England and Wales continue to house a large proportion of men and women with mental health problems. Most prevalent are personality disorders, estimated to affect 78 per cent of male prisoners on remand, 64 per cent of male sentenced prisoners and 50 per cent of female prisoners, compared with a rate in the general population between 10 –13 per cent (Singleton et al., 1998). Anti-social and borderline personality disorders are the most common in criminal justice settings. The National Institute for Health and Care Excellence (NICE) describes people with anti-social personality disorder as exhibiting:

traits of impulsivity, high negative emotionality, low conscientiousness, and associated behaviours including irresponsible and exploitative behaviour, recklessness and deceitfulness. This is manifest in unstable interpersonal relationships, disregard for the consequences of one’s behaviour, a failure to learn from experience, egocentricity and a disregard for the feelings of others. (NICE, 2009a)

Those with a borderline personality disorder, on the other hand, are characterized by:

significant instability of interpersonal relationships, self-image and mood, and impulsive behaviour. There is a pattern of sometimes rapid fluctuation from periods of confidence to despair, with fear of abandonment and rejection, and a strong tendency towards suicidal thinking and self-harm. (NICE, 2009b)

Although frequently associated with serious offending, the authenticity of personality disorder as a diagnostic category has itself been doubted by some psychiatrists and mental health legislation has enabled health services to exclude many of these offenders from treatment where their disorder has been assessed as ‘untreatable’. However, the growth of penal populism in the 1990s and the priority accorded to public protection, particularly from ‘dangerous’ populations, demanded a more targeted and vigorous response to the treatment of personality disorder. The Mental Health Act 2007 removed the ‘treatability’ criterion and broadened the legal category of eligibility for treatment to encompass all mental disorders, including personality disorder. Unsurprisingly, the development of interventions for offenders was focused on the most severe end of the spectrum and specialist secure units were set up in prisons and secure psychiatric hospitals for those whose disordered personality was defined as dangerous and severe (DSPD) (see Duggan, 2011; Maden, 2007).

Since then, the continued growth of the prison population, particularly the rising numbers serving indeterminate sentences for public protection, and the high incidence of suicide and self-harm have raised awareness of the prevalence of mental ill-health among prisoners more generally. It has also revealed the relative scarcity of psychological treatment facilities in prisons (see Brooker and Ullmann, 2008; Durcan, 2008; National Institute of Health Research, 2009). In 2008 the government set up an independent review by Lord Bradley to examine the extent and nature of the barriers that prevented the diversion of offenders with mental health problems and learning difficulties from prison and to recommend reforms that would improve the effectiveness of diversion arrangements into health and social care (Bradley, 2009).

In reviewing the history of policy in this area, Lord Bradley noted that the recommendations made in 1992 by Lord Reed in his report (Department of Health and Home Office, 1992) remained equally relevant 16 years later. He reiterated the need for effective joint working between the criminal justice system and the Department of Health and confirmed that existing measures, linking offenders’ access to mental health treatment with diversion from prison, result in relatively few of them receiving appropriate interventions. Although he made clear that ‘public protection must always remain a top priority’ he was critical of the lack of equivalence between mental health services in custodial settings and those in the community, claiming that this shortfall served to exacerbate existing health inequalities in an already socially excluded group (Bradley, 2009: 10). Yet despite these well-documented needs of offender populations, the Bradley Report acknowledged that health and social services have traditionally found them hard to engage and that present stakeholders do not support the principle of diversion at the earliest available opportunity. Instead, there was a widely shared view that offenders with mental health problems could actually benefit from a criminal justice sanction:

In mental health services there is increasing concern about the level of violent offending committed while patients are receiving treatment …. For some offenders proceeding with criminal justice sanctions will, at the very least, result in an accurate record of short and long-term risk factors to others. A further benefit is of setting behavioural boundaries requiring offenders to confront the unacceptability of their offending and to take responsibility for their actions. (Bradley, 2009: 15)

While not abandoning the concept of diversion from the criminal process altogether, Lord Bradley felt it necessary ‘to take account of the fact that the decision to divert should strike the right balance between the rights of the offender, the rights of the victim and protection of the public’ (Bradley, 2009: 15). For him, diversion was to be defined as:

a process whereby people are assessed and their needs identified as early as possible in the offender pathway (including prevention and early intervention) thus informing subsequent decisions about where an individual is best placed to receive treatment, taking into account public safety, safety of the individual and the punishment of an offence. (Bradley, 2009: 16)

Accepting that imprisonment can have a ‘far from positive’ impact on mental health, he nonetheless argued that prisons must provide such places for treatment: ‘Even if all the diversion opportunities described in this report were fully utilised there would still be individuals with mental health problems for whom prison would be the appropriate disposal’ (Bradley, 2009: 98).

One area of mental healthcare that is clearly targeted for development within prisons is the treatment of personality disorder. Yet despite its prevalence among offender populations, Bradley discovered a lack of formal provision and called upon the Ministry of Justice and the Department of Health to review the existing arrangements and to develop a strategy for the management of personality disorder in custody and the community. He did, however, acknowledge the complexity of the issues to be addressed, which he said are ‘often overlaid with factors relating to individuals’ co-existing mental illness, substance misuse and behavioural difficulties, which have long standing causes and consequences’ (Bradley, 2009: 109).

In response to this challenge, the Department of Health and the National Offender Management Service (NOMS) published a consultation paper in February 2011 setting out a new approach to the management of offenders with personality disorder (Department of Health and Ministry of Justice, 2011a). In this it describes a strategy to increase treatment capacity in prisons by diverting existing resources from the DSPD units in the high security hospitals: ‘[b]ecause treatments can be provided more effectively and at a much lower cost in prison’ (Department of Health and Ministry of Justice, 2011a: para. 2) ⁶ . The aim is to develop a pathway of services that will identify offenders with severe personality disorder early in their sentence, provide a greater number of treatment places in prison, facilitate progression places in prison and the community for those who have completed treatment, and improve supervision post-release. By redistributing existing expenditure, 570 new treatment places and 820 progression places are promised across prisons, approved premises and the independent sector. Like other elements of the ‘Rehabilitation Revolution’, the primary motivation is presented as an enhancement to public protection: ‘Public protection remains paramount to our proposals and we will maintain the highest level of secure management to achieve this outcome with all offenders continuing to be treated in the level of security necessary for the risk they present’ (Department of Health and Ministry of Justice, 2011b: 5).

The principles underpinning these reforms include a commitment to shared responsibility between the NHS and NOMS to manage offenders across the entire pathway, from pre-trial stages to resettlement post-release. The lead role is to be played by Offender Managers in the criminal justice system, even though the pathway and treatment are ‘psychologically informed’ and led by ‘psychologically trained staff’ (Department of Health and Ministry of Justice, 2011(a): paras 2 and 38). When fully implemented the pathway will continue to maintain the DSPD units (to be re-named) in the high security prisons alongside new treatment units in a number of Category B and C male prisons and one closed prison for women. These are intended for prisoners with complex needs who do not qualify for the high security programme, but who are thought unlikely to progress in existing accredited programmes, such as the democratic therapeutic communities. In addition to these interventions will be a number of progression units, Psychologically Informed Planned Environments (PIPEs), which will provide support during a period of transition following time in treatment. As a consequence of the expansion of prison services it is planned that high security NHS provision will continue to be available but will be restricted to those whose ‘treatment can only be provided in the context of a secure psychiatric hospital’ (Department of Health and Ministry of Justice, 2011a: paras 2 and 49–52, emphasis in original).

The published response to the consultation document reported that there had been broad support for the underlying principles of the proposal (Department of Health and Ministry of Justice, 2011b). Most criticism related to the practical realization of the project, particularly the effectiveness of joint working between the NHS and NOMS and the capacity and skills of offender managers and the prison workforce to deliver treatment services to a population with complex needs. Serious misgivings were expressed not only about the time and resources required to facilitate training, but also about the availability of professional expertise among the staff responsible for implementation, particularly those occupying leadership roles. The validity of these reservations is acknowledged in the published response:

The Government is aware that the biggest single factor in determining the success of the pathway approach is the quality and capacity of the workforce in each of the organisations delivering services. There was widespread agreement that KUF [Knowledge and Understanding Framework] is a good start, but also a common feeling that more is required, particularly for the development of leadership. (Department of Health and Ministry of Justice, 2011b: para. 69)

The general support that the consultation paper attracted reflects widespread recognition that there is a broad need for therapeutic services among the prison population. However, the reservations expressed about the capacity of the prison service to deliver these programmes do not bode well for their subsequent effectiveness in reducing criminal risk and attracting continued investment. Less obviously, these deficiencies highlight the potential for systemic failures that have consequences for the protection of prisoners’ rights and the realization of the positive obligations inherent in the prison’s duty of care. The extent to which prisoners are able to defend their interests by holding prison authorities accountable for the standards of treatment that are delivered and for any consequential harms that are caused, raises important questions about the reach of legal protections in rehabilitative programmes.

A Duty of Care

Historically, domestic legislation has played a relatively minor role in shaping the ways prisoners are treated in custody. The Prison Act 1952 does not lay down detailed rules and regulations that identify how prisons should be run, but provides a framework of legal responsibility that empowers the Secretary of State to create rules for the management and organization of prisons. The Prison Rules 1999 often vest considerable discretion in the prison authorities and their legal status has been controversial in that they have been held to be regulatory directions only and not legally enforceable by prisoners (Arbon v Anderson [1943]; Becker v Home Office [1972]; R v Deputy Governor of Parkhurst Prison ex parte Hague, and Weldon v Home Office [1991]; Williams v Home Office No. 2 [1981]. One potentially important legislative development in relation to the protection of prisoners’ physical integrity is the Corporate Manslaughter and Corporate Homicide Act 2007, which in 2011 extended corporate liability for the offence of manslaughter to places of detention. Criminal proceedings may now be brought against a prison if the way in which its activities are managed or organized causes a person’s death. However, the reach of this legislation is limited in that the failure must amount to a gross breach of a relevant duty of care and should be one that is owed under the law of negligence. The legislation sets the standard for breach at a high level, requiring it to fall far below what could reasonably be expected of the organization in the circumstances (s. 1(4)(b)). In addition, unlike the common law test of gross negligence manslaughter, any responsibility for the foreseeability of risk does not feature in the statute since organizations, as Lord Hoffman emphasized, are only ‘metaphysical entities’ and so do not have the capacity to foresee (Meridian Global Funds Management Asia Ltd v The Securities Commission [1995] at 419A). In assessing guilt, a jury must consider whether the evidence shows that the organization failed to comply with any health and safety legislation; how serious that failure was and how much of a risk of death it posed. In addition, the jury may consider whether there were attitudes, policies, systems or accepted practices within the organization that were likely to have encouraged the failure or to have produced tolerance of it.

The application of the Corporate Homicide and Corporate Manslaughter Act to prisons and other places of detention has been welcomed as an opportunity to strengthen the duty of care extended to people in custody in order to reduce certain preventable deaths (Grimes, 2011). However, the extent to which this legislation could be used to protect the safe functioning of a therapeutic environment within prison has not been fully anticipated in the wording of the statute which, as interpreted by the Police Federation, clearly relates to more conventional matters of health and safety:

the people at the top, who actually control the buildings and budgets, have to think about their responsibilities. In future, if someone was to hang themselves from a ligature in a cell, not only would the custody sergeant be questioned, but the authorities would look at the way the building was designed, whether there were any obvious ligature points that had not been removed, and the force could be held responsible. (John Coppen, Police Federation representative for custody sergeants quoted in the Guardian, 28 August 2011)

While there remains potential for more extensive and progressive interpretations of this legislation, there can be little doubt that the strongest legal protection of the duty of care owed to prisoners has emerged from the jurisprudence of the ECtHR. In particular, cases of unnatural deaths in custody have prompted the courts to become more robust in upholding prisoners’ claims under Articles 2 and 3 which guarantee the right to life and the right to be protected from torture and inhuman or degrading treatment or punishment. Under Article 2 prison authorities owe prisoners both a positive duty to safeguard their lives, as well as a negative duty to refrain from practices that put their lives at risk, either intentionally or negligently. Such practices may include using excessive or unnecessary force against a prisoner to gain compliance or, as we shall argue, exposing a prisoner to psychologically intrusive treatments that lack a stringent adherence to the duty of care. In Osman v UK [2000] a teacher shot and killed the father of a student with whom he was infatuated. It was claimed that despite being notified of the teacher’s threatening behaviour, the police failed to take appropriate action to protect Osman from fatal attack. Although the ECtHR did not uphold a breach of Article 2 in this case, it did establish some important principles that were relied upon in later cases brought against prison authorities (see later Edwards [2002], Keenan [2001] and Salman [2002]). Most notably, the Grand Chamber held that the State’s obligation to protect the right to life extends beyond its primary duty to establish effective criminal law provisions that deter and prevent offences against the person, and includes ‘preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual’ (Osman v UK [2000]: para. 115). The Court rejected the argument that the standard of liability should be gross negligence and imposed a positive duty on the police, to ‘do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge’ (Osman v UK [2000]: para. 116).

The Osman test has been applied to deaths in custody both in relation to suicide and unlawful killing by third parties. In Keenan v UK [2001] the prisoner, who had a documented history of mental health problems and had previously been identified by prison staff as a suicide risk, hanged himself while in segregation for a disciplinary offence. The Court emphasized the vulnerable status of prisoners and, following the Osman ruling, declared that the prison authorities have a positive duty to protect individuals whose lives are known, or should be known, to be at risk. However, where staff take reasonable steps to prevent a suicide, or where there are no indications of a prisoner being at risk of suicide, no breach of Article 2 occurs. The extent to which the prison must go to safeguard the lives of its prisoners has to be understood in relation to the principle of proportionality which requires a balance to be drawn so that the right to life does not trigger blanket measures of intrusive surveillance, or methods of physical restraint, that undermine respect for private life, personal autonomy and physical integrity (Osman v UK [2000]: para. 116).

In the UK the Joint Committee on Human Rights has endorsed an approach recommended by the European Prison Rules (EPR 51.2), that protecting prisoners’ right to life should emphasize ‘relational’ rather than a more narrowly conceived ‘physical’ security (House of Lords, House of Commons Joint Committee on Human Rights, 2004: para. 370). The former relies upon an environment where there is a culture of respect for human rights, access to necessary support and healthcare and supportive relations with staff. The latter is focused only upon providing effective means of surveillance and the reduction of opportunities for self-harm. In Keenan the ECtHR held that protective measures should be tailored to the effective risk management of the individual case, imposing only those intrusions that are necessary to protect the prisoner from self-harm:

The prison authorities must discharge their duties in a manner compatible with the rights and freedoms of the individual concerned. There are general measures and precautions which will be available to diminish the opportunities for self-harm, without infringing personal autonomy. Whether any more stringent measures are necessary in respect of a prisoner and whether it is reasonable to apply them will depend on the circumstances of the case. (Keenan v UK [2001]: para. 91)

On the facts the court found that the prison authorities were not in breach of Article 2 in relation to Keenan’s death, but their failure to monitor his mental health appropriately, together with his segregation for a disciplinary offence, constituted treatment that was in breach of Article 3 (Keenan v UK [2001]: paras 102–115). This decision demonstrated a greater willingness on the part of the ECtHR to look beyond the physical conditions of imprisonment and to take account of the personal characteristics of the individual prisoner in determining what is inhuman and degrading treatment (see also Price v UK [2002]). It also reflects the Court’s commitment to equivalence of healthcare for prisoners in relation to other citizens (McGlinchey v UK [2003]). Arguably, the importance attached by the Court to effective mental health monitoring of prisoners in potentially stressful and challenging circumstances, raises important issues for the development of therapeutic regimes in the wake of the Bradley Report. Risks to mental health emanate not only from each individual’s engagement with their own traumatic experiences but also from exposure to the personal histories of their peers.

It is, however, the loss of life at the hands of a third party that has most obviously shaped the Court’s jurisprudence on Article 2, especially where death has resulted from the use of lethal force by state officials. Although guaranteeing the protection of all human life, Article 2 does allow exceptions when a death ‘results from the use of force which is no more than absolutely necessary (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest; (c) in action taken for the purpose of quelling a riot or insurrection’. In McCann and others v UK [1996] the Court established that intentional killing by the State would be permitted only under conditions of absolute necessity, based on the facts that were honestly, and with good reason, believed to exist at the time. Any judgment by the Court would consider not only the actions of those engaged in enforcing the law, but also those officials responsible for the planning of the operation whose duty it was to reduce the risk of lethal force to the greatest extent possible. The Court took a step further in Gul v Turkey [2000] where it also required a strict test of proportionality in assessing whether a state has violated Article 2 (see also Giuliani and Gaggio v Italy [2011]; Isayeva v Russia [2005]; Juozaitiene and Bikulcius v Lithuania [2008]; Makaratzis v Greece [2005]). And in Salman v Turkey ([2002]: para. 97) the ECtHR emphasized that where an individual dies in custody the obligation on the authorities to account for their treatment is particularly stringent:

Persons in custody are in a vulnerable position and the authorities are under a duty to protect them. Consequently, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused. (Salman v Turkey [2002]: para 99)

Emmerson et al. (2012: para. 19.77) have observed that although the Strasbourg jurisprudence has not specifically imposed a duty on the State to bring a prosecution where there is evidence of a breach of Article 2, ‘there are several statements of the Court which might be said to support that proposition’. They also note Lord Bingham’s observations in the judicial review of Manning and Melbourne, where the DPP had declined to prosecute a prison officer following the death of a prisoner. Such decisions, Bingham insisted, should be supported by a reasonable explanation in order ‘to meet the reasonable expectations of interested parties … and to meet the European Court’s expectations that if a prosecution is not to follow a plausible explanation will be given’ (R v DPP ex parte Manning and Melbourne [2001]: para. 33).

Of particular importance to the protection of prisoners’ rights in therapeutic environments, has been the recognition of the ECtHR that a breach of Article 2 in custodial settings may occur not only as a result of the deficits of individual members of staff, but also as a consequence of systemic failings that result in inadequate procedures or a lack of trained or suitably qualified staff. On 29 November 1994 Christopher Edwards was killed by his cell-mate Richard Linford, a man with a history of mental illness and violent outbursts. A non-statutory inquiry identified a series of procedural flaws that included the failure of the police, prosecution and court services to pass on information about Linford to the admission staff at the prison; inadequate examination of Linford on his arrival at the prison; and a failure on the part of wing staff to report the malfunctioning of the call alarm in the cell occupied by Linford and Edwards. The ECtHR concluded that the systemic failures involved in the case constituted a breach of the State’s obligation to protect the life of Edwards (Edwards v UK [2002]).

Five years after the death of Christopher Edwards, Zahid Mubarek was murdered on 21 March 2000 by his cell-mate Robert Stewart in Feltham Young Offender Institution. Stewart was a skinhead whose extreme racist views were well known by the authorities and Mubarek had requested a cell change on at least two occasions before falling victim to an unprovoked attack. The Home Secretary decided not to order an independent public inquiry into his death, preferring instead to rely on an investigation by the Commission for Racial Equality. Mubarek’s family sought judicial review arguing that this decision was in breach of the Minister’s obligation to set up an inquiry at which the family would be legally represented and able to cross-examine principal witnesses. In Jordan the ECtHR had established that the required investigation into a death in custody could vary in form depending on the circumstances of the case, but that in all instances it must meet certain minimum criteria in order to satisfy Article 2 (Jordan v UK [2001]). In the Mubarek case the House of Lords held that the Home Secretary had failed to act in accordance with the decision of the ECtHR in Edwards, where the procedural obligation to investigate a death in custody applied with equal force regardless of whether the fatal injury had resulted from the State laying on ‘lethal hands’ or from systemic neglect (R v Secretary of State for the Home Department ex parte Amin [2003]). In fact the judges argued that deaths that resulted from systemic failures by prison authorities demanded even greater scrutiny:

for while any deliberate killing by state agents is bound to arouse very grave disquiet, such an event is likely to be rare and the state’s main task is to establish the facts and prosecute the culprits; a systemic failure to protect the lives of persons detained may well call for even more anxious consideration and raise even more intractable problems. (Lord Bingham at para. 21)

but the investigation of cases of negligence resulting in the death of prisoners may often be more complex and may require more elaborate investigation. Systemic failures also affect more prisoners. (Lord Steyn at para. 50)

In my opinion failures by the prison service which lead to a prisoner’s death at the hands of another prisoner are no less demanding of investigation, and of ‘the widest exposure possible’, than lethal acts which state agents have deliberately perpetrated. Indeed there is a strong case for saying that an even more rigorous investigation is needed if those who are responsible for such failures are to be identified and made accountable and the right to life is to be protected by subjecting the system itself to effective public scrutiny. (Lord Hope at para. 60)

The resulting independent inquiry by Mr Justice Keith (2006) revealed 186 separate failings, which he described as a ‘bewildering catalogue of shortcomings both individual and systemic’ (Dodd and Travis, 2006). Two important conclusions from the report were that Feltham YOI was institutionally racist and that overcrowding and lack of resources contributed to an environment in which the prison was systemically incapable of fulfilling its duty of care. But the findings from the inquiry specifically revealed how some groups of prisoners face exceptional risks and that prison authorities must therefore respond not only to the personal threats experienced by individual inmates but to the collective insecurities that attach to minority groups of prisoners, whether this be due to their race, their religion or presumably any other factor such as their category of offence.

Drawing on the conclusions of Mr Justice Keith’s inquiry and from the decisions of the domestic and Strasbourg courts, certain principles can be distilled which have implications for the provision of rehabilitative regimes.

The legal framework that is established by these principles provides an important context in which the tragic events involving Grendon prisoners, Robert Coello and Lee Foye, can be understood.

HMP Grendon: An Example of the Duty of Care under Stress

HMP Grendon Underwood is officially a category B training prison for men operating as a collection of five therapeutic communities, each housing up to 40 inmates, in which prisoners volunteer to spend part of their sentence, typically around two to four years, addressing their criminogenic needs. Established in the 1960s, it is an accredited rehabilitative intervention whose historical roots are firmly planted in the ideology of penal welfare, clinical treatment and assessment. Based on a psychodynamic treatment model that gives predominance to social learning over psychoanalytic methods, it is recognized as being particularly suitable for personality disordered offenders (see NICE, 2009a; Shuker and Sullivan, 2010). It presupposes the existence of a dialectical relationship between the self and society, whereby the individual both influences and is influenced by the wider social groups of which he is a member. Self-identity is thus perceived as being shaped by social interaction, and learning is viewed as a social activity which comes about as a result of an individual’s relationship with his environment.

In many respects the prison and the therapeutic community (TC) represent two distinct and antipathetic institutions. Prisons are socially divided and hierarchically organized; regulated by externally imposed and non-negotiable rules; and designed to depersonalize the individual and minimize the exercise of personal choice. Therapeutic communities, on the other hand, aim to minimize social division to enable the democratic exercise of power; foster self-regulation and responsibility; and encourage the development of personal identity and autonomy. To a large degree the ability of the prison to accommodate the therapeutic community is dependent upon the extent to which both prisoners and prison officers are able to transcend their traditional sub-cultural affiliations and adhere to an agreed set of behavioural norms that promote therapeutic objectives without imperilling prison security and control (Genders and Player, 1995).Twenty years ago, we noted how both officers and prisoners at Grendon believed that their relationships with one another differed from those in other prisons, being characterized by individualism, permissiveness and trust (Genders and Player, 1995: 123).These modifications enabled the erosion of stereotyped images and facilitated relationships based on assessments of the individual rather than upon preconceived notions of status. Most importantly, they enabled a relatively safe environment in which inmates could disclose deeply personal information, explore previous traumatic and abusive experiences and reveal unaddressed emotions. By emphasizing practices of social inclusivity, traditionally degraded prisoners, most notably sex offenders, were integrated across the communities and engaged with other inmates in the therapeutic process. While accommodating a population of serious offenders, security across the establishment relied heavily upon the relationships that were nurtured within the community. Fundamental to the functioning of the therapeutic community is its communitarian social order and the opportunities it provides for living-learning experiences. The impairment of any of its operational principles threatens to weaken the environment and inhibit therapeutic activity. The danger here is not that therapeutic activity stops but that treatment practices continue in an environment that can no longer support conditions of safety and the integrity of the therapeutic process.

We have argued elsewhere that changes in the wider penal system have affected important areas of routine activity within the communities, which have eroded the ability of staff and inmates to sustain previous levels of therapeutic activity (Genders and Player, 2010). First, the therapeutic role of the staff has been constrained by the restructuring and rationalization of staff management and the overall reduction of uniformed and civilian staff in response to budgetary cuts. Therapy groups are regularly cancelled because officers’ attendance is displaced by mandatory prison duties relating to key performance ratings that apply across the prison estate. The contraction of professional staff involved in therapy is also significant, most notably the removal of psychiatrists. Originally established under medical authority, Grendon developed a dual structure of accountability: to the regional system of prison management and to the Prison Medical Service for the delivery of therapy (see East and Hubert, 1939; Genders and Player, 1995; Gunn et al., 1978). Twenty years ago there was a resident psychiatrist in each community, today there is none. The presence of medical staff enabled a holistic approach to inmates’ physical and psychological health by providing primary healthcare as well as contributing to the therapeutic activities within the communities. The abolition of the Prison Medical Service and the integration of prisoner healthcare within the NHS have subsequently resulted in the fragmentation of this model. Grendon’s medical services are now provided under contractual agreements with local NHS trusts and mental health is covered by an in-reach team which operates alongside the TCs but which is not integral to them. The structure of accountability and the requirements of medical confidentiality have excluded psychiatric oversight of therapy and have stemmed the automatic flow of medical information into the therapeutic process. Clearly, there are sound libertarian arguments to promote equivalence of medical care between the prison and outside community, however their indiscriminate application across all prison regimes sits uneasily with the principle of communalism inherent in the holistic TC model. But leaving aside the clinical implications, the removal of psychiatrists from the communities has had additional and important consequences for the structural protection of therapeutic integrity. This is not because medically trained doctors necessarily have a better understanding of the functioning of TCs but because collectively they represent a powerful and independent elite, whose professional interests are more closely tied to the rectitude of the therapeutic programme rather than the managerial concerns of the prison. Their collective identity and ultimate representation by the British Medical Association promoted a degree of protection to the treatment regime unrivalled by other professional groups.

Second, the principle of Communalism, centrally important for therapeutic activity, has been undermined by a number of practical changes to the regime. For example, opportunities for observation and interaction have been reduced by the introduction of in-cell television, a reform generally viewed as a regime enhancement in other mainstream establishments; by smoking restrictions that allow prisoners to smoke only in their own cells; and by the introduction of packed meals eaten in-cell which reduce communal dining. The most detrimental of these changes, however, has been the requirement for Grendon to conform to the ‘core day’, which was introduced across the prison estate in 2009 and which has diminished opportunities for peer influence and social learning in the communities by significantly reducing the number of hours that prisoners at Grendon are allowed out of their cells. Third, the culture of permissiveness was diminished by the creation of a dedicated community for sex offenders, which had the consequence of reducing their integration within the other communities and lowering the tolerance traditionally extended by those engaged with them in therapy. Fourth, the therapeutic environment has been damaged by changes related to the growth of the prison population and, in particular, the rising numbers serving indeterminate sentences. Almost all the inmates at Grendon are now serving life sentences, or an indeterminate sentence for public protection, and must demonstrate to the Parole Board their suitability for release, by progressing successfully to lower security establishments. But the pressure of numbers on accommodation has increased the complexity of prisoner movement, especially for the lifer population, and their concentration at Grendon has had severe consequences for the onward movement of men who have completed their therapy. At any time a significant minority of the population will be awaiting transfer and many will have chosen to withdraw from therapeutic activities. For those at the end of their therapeutic career the regime at Grendon has little to offer beyond a relatively benign asylum. The waiting periods are of uncertain duration but invariably extensive, beyond a year in some instances, and can generate intense frustration. The sense of stagnation that is consequent upon restricted prisoner movement has implications that extend beyond the individual to affect key therapeutic activities. For example, the dynamics of group therapy are susceptible to atrophy when several of the eight members are semi-detached. But therapy can also be inhibited, and the community destabilized more disruptively, by men who are frustrated by their delayed transfer and angry at what they perceive to be the unfair extension of their sentence.

Conclusion

We have argued that the renewed emphasis on rehabilitation in penal policy for England and Wales raises important and unresolved questions about the relationship that exists between its inherent concepts of risks, rights and rehabilitation. Current policy establishes rehabilitative opportunities as mechanisms to reduce the risk the offender poses to the public by reoffending, while the risk of harm rehabilitative programmes can pose to offenders remains largely unacknowledged. In part, this is due to the failure to distinguish different types of rehabilitative interventions which target different types of criminal risk, and to the tendency to present them all as privileged opportunities for offenders. But an awareness of disparity is important as the risks of engagement will vary. For example, the risks of engaging in measures designed to address educational and employment deficits are not of the same order as those that attach to therapeutic interventions. Although therapeutic regimes, such as the therapeutic communities at Grendon, may ameliorate many of the oppressive conditions of traditional penal regimes, they are not risk-free alternatives (see Carlen and Tombs, 2006; Kendal, 2002). Instead they raise their own challenges to the positive obligations owed to prisoners by prison authorities under Articles 2 and 3 of the ECHR. The so-called ‘Rehabilitative Revolution’ (Ministry of Justice, 2010) has launched an expansion of therapeutic programmes for personality disordered offenders within the criminal justice system, fuelled by a significant shift of resources from the Department of Health to NOMS. The targeted populations for these new treatment regimes typically comprise men and women serving long sentences for serious offences, who have personal histories shaped by physical and sexual abuse and other risk factors associated with social disadvantage and exclusion. Engaging these offenders in processes that break down barriers between their public and private self exposes levels of trauma that reflect the adversity of the social worlds they have inhabited, as well as the complexity of their psychological needs. Coping safely with the vulnerability this produces, both for those disclosing information and for those receiving it, demands professional skill and expertise and lies at the heart of the duty of care that is owed to these prisoners. Yet, the proposed developments are, by the government’s own admission, inadequately furnished with professionally qualified staff and other resources.

The proposed extension of rehabilitative opportunities reveals a process of risk management that is highly selective in recognizing risks that deserve a protective response and those that do not. We have suggested that this failure to recognize the risks that therapeutic programmes can pose to prisoners reflects an uncertainty about the prison authority’s duty of care in these contexts and that this, in turn, reflects a deep-seated resistance to the concept of prisoners’ rights. The Human Rights Act was intended to foster a culture of rights in the ways that public authorities perform their duties, yet its principles of universality have failed to gain a strong foothold in the operational performance of prisons. Recent debates about prisoners’ right to vote, following the ECtHR ruling in Hirst [2005], have reflected an increased politicization of human rights and a deep-seated mistrust of the Strasbourg court. Statements by politicians across political parties display a strong adherence to the principle of ‘less eligibility’, whereby the notion of universality of rights is replaced by a concept of desert that links access to the assessment of personal virtue (see Hansard, 2011; Norman and Osborne, 2009). The confusion of rights with privileges is similarly evident in the ‘Rehabilitation Revolution’ where prisoners’ access to services is framed within a discourse of obligation rather than one of entitlement.

Offenders should be required to tackle their criminal behaviour. It is crucial that all those managing offenders make it clear to them that they will be swiftly caught and punished if they do not accept the opportunities offered to them. (Ministry of Justice, 2010)

As we have shown, the relevance of human rights in shaping penal policy in this area has been focused strictly on the rights of the public to be protected from criminal harm. But providing therapeutic services within a penal context can also be conceived as an important investment in social justice. Such a commitment, however, is only feasible in a system that both acknowledges a duty to provide rehabilitative opportunities to prisoners and respects their rights to be protected from the risks of therapeutic engagement. At the present time, neither of these conditions is met. First, by the government’s own admission, the expansion of treatment in prisons for personality disorder is not matched by the provision of qualified staff. Second, the legal status of prisoners in England and Wales cannot be relied upon to define and secure their access to human rights’ protections established in international law. Paradoxically, both of these shortcomings undermine the legitimacy of continuing with the present strategy, yet its abandonment is also insupportable, running counter to international legal obligations to address the rehabilitative needs of specific groups of offenders.

Although there is a pressing need to establish a clear definition of the duty of care owed to prisoners in the evolving framework of therapeutic programmes the prospect of it materializing in the near future seems to us to be relatively slim. The present financial crisis requires the Ministry of Justice to reduce expenditure, and although the transfer of DSPD resources from the Department of Health to NOMS represents an injection of new funds into prisons, the creation of protective mechanisms, such as the recruitment of specialist staff and the creation of professional training, seem remote possibilities given that the strategy has been driven in large measure by the fact that treatment can be delivered at lower costs in prisons than in special hospitals. Existing mechanisms to audit the delivery of therapeutic programmes provide one means of protecting programme integrity, but in practice these are fragmented and relatively weak. In relation to the functioning of prison TCs, for example, an independent organization, the Community of Communities, sets out a series of standards that are used in the process of accreditation and conducts a biennial audit to assess compliance with the TC Core Model (Paget and Turner, undated). They do not, however, establish for prisoners a legally enforceable right to a minimum standard of care.

Yet it would be mistaken to conclude that human rights compliance is antithetical to risk management in prisons. Noel Whitty (2011) has drawn attention to the ways in which risk-based approaches in prison management have transformed the perception of human rights issues into organizational risks, which can have legal, reputational or financial consequences. Human rights compliance has thus become part of the risk management of prison governance: ‘Paradoxical though it may appear to some, to increase human rights protection can reduce organisational risk’ (Whitty, 2011: 139).

Whitty notes that this does not guarantee human rights compliance, only that human-rights’ risks are acknowledged. What it does establish is that compliance can be driven by a variety of strategies, such as commercial and public relations imperatives, and is not necessarily dependent upon a commitment to the validity of human rights norms. As a consequence, it opens a range of strategies for establishing a duty of care in the delivery of therapeutic programmes. For example, a duty of care may be expedient in avoiding the risk of adverse publicity and a reduction in public confidence following a death in custody, or a finding by the ECtHR upholding a claim of inhuman or degrading treatment. To utilize this strategy, the murder of Robert Coello and the conviction and life sentence imposed on Lee Foye provide a timely opportunity to review the safety of prisoners exposed to intrusive psychological therapies. At the present time the Prison Ombudsman’s inquiry into the death of Robert Coello is ongoing. It is to be hoped that his conclusions concerning this unlawful death in custody will facilitate a broader understanding of the risks inherent in therapeutic rehabilitation and respond with a style of risk management that will establish a more clearly articulated duty of care owed to all prisoners in these contexts. A failure to grasp the human rights issues affecting both Coello and Foye represents not only a missed opportunity in their case but extinguishes the best foreseeable prospect for the development of a duty of care for the increasing numbers of prisoners who will be exposed to the risks of therapeutic rehabilitation.