Plans to send offenders to foreign jails will “almost certainly” face legal challenges in the courts, lawyers have told i.
Justice Secretary Alex Chalk outlined plans on Wednesday to rent jails in other countries, in a bid to tackle capacity issues in the British prison system.
No time frame has been given for the plans, with the Government saying it was currently engaged in “exploratory discussions with potential partner countries”.
Benjamin Burrows, a partner at legal firm Leigh Day, said that the policy would “almost certain to face legal challenges, either by the prisoners affected or their families.”
Leigh Day is representing asylum seeker charity Asylum Aid in its legal battle against the Government over plans to send those arriving by small boat to Rwanda.
Mr Burrows said that while there was little detail currently available about the policy, there were a series of possible legal fault lines which could lead to challenges in the courts.
He suggested that transferring prisoners who are engaged in active legal proceedings in the UK – such as those making appeals against their sentence – could risk violating Article 6 of the Human Rights Act, which guarantees the right to fair trial.
Prisoners can also take part in education and training schemes during their sentences which are designed to lower the risk of reoffending. Successful participation can also be used as evidence in parole hearings.
Mr Burrows said there were questions over how these would be operated and maintained overseas. If the schemes differed to those offered in UK prisons, it is possible that this could violate Article 5, which ensures people are not detained without good reason.
There are also concerns about a possible violation of Article 8 – the right to family life – due to the difficulties in ensuring family visits for inmates being kept overseas, as well as fears over the general quality of treatment.
The Government said the plan would only be undertaken if the “facilities, regime and rehabilitation provided meets British standards”.
But legal sources said there were questions over how the UK Government could prove that it could ensure its values and legal obligations were upheld in another territory.
Standards of healthcare and monitoring services like inspections – carried out in the UK each year by the chief inspector for prisons – may also cause legal issues.
“If there’s not equality in the treatment given, you can see how prisoners could argue they have been unfairly disadvantaged,” said Mr Burrows.
“There are lots and lots of ways that it could impact prisoners, and maintaining British standards in a foreign jurisdiction will be difficult. Whatever they do may have a downside for the prisoners moved there, and that will leave them open to legal challenges.”
The policy is likely to be modelled on similar practices by countries including Belgium, which exported prisoners to the Netherlands between 2010 and 2016 – the first scheme of its kind in Europe. Norway followed suit in 2015.
Legal experts said these agreements were “extremely complicated”. To ensure the policy was legal, the Dutch prison authorities established complex responsibility sharing with their counterparts in other countries – negotiating everything from who was responsible for healthcare to what happened if a prisoner escaped, because Belgian authorities were not permitted to arrest prisoners on Dutch territory.
Belgian monitoring services continued to carry out inspections there as they would in Belgian prisons.
It is not clear which prisoners the UK’s Ministry of Justice is planning to send overseas, but legal sources suggested it could prove easier to apply the policy to foreign nationals set to be deported.
This is because issues such as family visitation rights may be less relevant, meaning there may be a lower likelihood of violations of Article 8.
There is legal precedent for this: in December 2021, the Danish Government also agreed to rent 300 prison cells from Kosovo for foreign national prisoners who were set to be deported, a deal slated to begin this year.
But if prisoners do not volunteer or consent to being transferred overseas, this could violate principles of procedural fairness, which encourage prisoners to be able to share their side of the argument and have this considered in decisions made about them.
The Government’s plans are being drawn up in a bid to tackle overcrowding in the UK’s prison system. Average prison sentences have increased by 57 per cent since 2010, placing more demand on prison capacity.
Justice groups have warned that the system is at breaking point with capacity almost full. In March, a man who assaulted a prison officer had a jail sentence overturned due to court backlogs and cell shortages.
The Government says it has embarked on the “biggest prison expansion programme in over a century”, including six new prisons, to boost capacity by 20,000 places.
Around 5,500 places have so far been built, while 2,400 places have been found in existing buildings by making offenders share cells and delaying non urgent maintenance work.
But prison officer unions and reform groups also warned that even if operational, the plans would not solve the overcrowding crisis currently facing the UK prison system.
Steve Gillan, General Secretary of the Prison Officers Association, described the announcement as a “panic measure” and agreed it could be open to legal challenges from prisoners.
Mr Gillan said the announcement provided “no detail on Government plans”, including how much the policy would cost the taxpayer.
The Prison Reform Trust described the idea as “half baked” and said prison leaders would be “in despair at such a superficial response to their very real and urgent concerns”.
“Given the nature of international agreements the possibility of any such measures coming into force in time to stave off the immediate prison capacity crisis is virtually nil,” a spokesperson said.
JUSTICE, a law reform and human rights organisation, also warned said that the UK must “not oursource our citizens”.
“The prison system is in crisis,” said Tyrone Steele, the Interim Legal Director. “Instead of this ill-thought out proposal, we must look toward solutions that work by prioritising education, healthcare, and effective programmes of rehabilitation.”
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