Policy at the mercy of fear: Déjà vu and the open prisons

Susanna Menis | 25 January 2024

Open prisons have been considered effective, but their effectiveness is at the mercy of public opinion panics regarding the criminal justice system. The England and Wales prison estate includes 122 prisons, 12 of which are open prisons. The UK courts do not offer an ‘open prison’ sentence. An individual can only find themselves in an open prison when they are removed to one, after satisfying risk assessment, as part of their preparation for release (known as ‘resettlement journey’).

All elements of the prison estate are now vastly more secure than in the twentieth century, despite record numbers and overcrowding. As of 5 January 2024, the prison population stood at 87,448 individuals. Escapes are virtually unknown – in 1995, 52 prisoners escaped, and the average for the last two decades is under 5. ‘Absconds’, such as failing to return from leave, have also reduced from a high of over 1200 in the early 2000s, to just 63 in 2022. According to the 2023 HM Prison and Probation Service annual digest, there has been a reduction of 64% in absconds from 2012 to 2023. Out of the 63 absconders in the year ending March 2023, 28 did not return within 30 days, and of those, 17 were from open prisons.       

The open prison policy has been at the mercy of the drawbacks affecting the mainstream prisons since its inception. The liberal approach taken by the pre-war Prison Commission with the introduction of open borstals for young offenders, was followed by the ‘open air employment’ project for adult prisoners. This stemmed from the understanding that opportunities for employment within the confines of prison walls were limited, and as Rosalind Crone has shown, a significant number of prisoners found themselves engaged only in a limited range of in in-cell work, which would not necessarily prepare them much for working life when released.

In the late 1930s New Hall Camp became a ‘prison’ under the Prison Building Act 1884, and in 1949 it was recognised as an ‘open prison’ by the Criminal Justice Act 1948. The forthcoming year saw seven other prisons set as ‘open’, including one for women, Askham Grange. The policy introduced by the 1948 Act assumed that the majority of those serving a prison sentence would eventually be transferred to open conditions. However, the logistics of this policy were unrealistic from its onset, not least because the introduction of two new sentences, ‘corrective training’ and ‘preventive detention’, led to an unexpected increase in people sent to prison. Subsequently, all prisons became saturated, and transfer from the majority of closed prisons to the small minority of open ones was a luxury of few. The liberal and reformative political narrative of the 1940s and 1950s was lost.

Towards the end of the 1960s, the increased attention paid to prison security put the openness under threat. The Mountbatten inquiry investigated several prisoners’ escapes suffered by mainstream prisons during the 1960s. Lord Mountbatten only mentioned the open prisons in his report to commend their operation, and that:

nothing which I say subsequently in my report is intended to suggest a reversal of the trend to award treatment in open conditions. On the contrary, it is my impression [...] that many more prisoners now in closed conditions could be transferred to open conditions without danger to the public (Report on the Inquiry into Prisons Escapes and Security, 1967).

However, Mountbatten’s report on the security drawbacks experienced by the closed prisons led the government to heighten policy related to security responses. This gave birth to the A to D prisons category, which is still in use today.  ‘Reformation’ was becoming less significant in prison management. By 1977 the Prison Board’s minutes and the Home Office stopped specific reporting on the open prisons. The aim of imprisonment was clarified:

to accept and contain, as long as necessary, those whom the courts send to them; and although men are sent to prison for a number of different reasons, they are not sent for treatment or for training in the first place (Report on the work of the Prison Department for the year 1976-1977).

Almost a century of tension concerning the open prison surfaced in 2022. HM open prison North Sea Camp saw two residents, one in February and one in November, leaving the premises with no intention to return. The police and media’s alert to the public was coloured by the information that they were ‘dangerous on the run’, serving a life sentence for sex offences and violence. Subsequently, by attempting to pre-empt a general problem that according to some did not exist, the government made the precarious policy of the open prison highly precarious.

The Justice Secretary introduced stringent criteria for transfer to open conditions in the summer of 2022. Using these, the government could veto any parole board decision if it deemed it could undermine public confidence in the criminal justice system; indeed, it blocked the transfer of several high-profile offenders, including one of the killers of Stephen Lawrence. However, by spring 2023, concerns were voiced about the legality of this power, the undermining of public safety, and thus disregarding the significant aim of the open prison in slowly introducing prisoners back into society. The new Justice Secretary was reported to have abandoned the new policy. Nevertheless, although the Victims and Prisoners Bill introduced in July 2023 was taken over by the new Justice Secretary in November 2023, it still leaves a wide interpretative margin concerning the above policy.   

The open prison’s overwhelmingly beneficial effects have shielded it, so far, from recent governments’ penal populism and public sector cuts. The practice and expectation to progress onto an open prison has not changed; however, the open prison is still operating under the shadow of the mainstream prison and in financially straitened times. Thus, any change in the barometer of fear causes disruption in the delicate balance between the competing policies of the open and the closed prisons, as seen in recent times.

• Tags:
• Criminal justice and law reform

About the author

---

Dr Susanna Menis, BA Law, MSc Criminology, PhD law/Criminology, MA Historical Research, is a Lecturer in Law at Birkbeck London University, School of Law. She is the author of A History of Women’s Prisons in England: The Myth of Prisoner Reformation (Cambridge Scholars Publishing, 2021).