Shut The Sites!

At HERC we publish blog articles covering a wide range of issues that broadly relate to harm, evidence, crime and justice. In keeping with the critical position of HERC, our aim is to highlight all sides of the debate and to facilitate a discussion so that all voices are heard on the issue.

In this article, Steve Tombs argues that keeping construction sites open is putting workers and their families at unncessary risk from coronavirus. Steve Tombs is Professor of Criminology at The Open University.

One Law for the Poor …

As Greater Manchester police arrested and threatened with pepper spray a man who said he was delivering food to vulnerable family members,  drones tracked then ‘named and shamed’ cars as they drove through near-deserted Derbyshire countryside and Cambridge police patrolled shopping aisles of non-essential items in Cambridgeshire, there is one place where the lockdown has not taken effect at all – construction sites.

The closure of the non-essential economy ordered as part of the general lockdown to halt the spread of the coronavirus took effect from 23rd March. As Blacklisted construction union activist and author Dave Smith has noted, “Immediately after Boris Johnson’s speech, Secretary of State for Housing, Communities & Local Government Robert Jenrick tweeted ‘advice for the housing, construction and building maintenance industries’ which stated that ‘if you are working on site, you can continue to do so.’”

And as I write, more than four weeks after the Prime Minister’s declaration, construction workers are still exposing themselves and their communities to the virus, and possible death, for the sake of luxury flats and retail developments – effectively coerced into working or simply not being paid. Dave Smith and others are engaged in a campaign to Shut the Sites and pay every worker. This is a matter of pressing social justice. It is also a matter of all of our lives.

Source: Dave Smith #ShutTheSites #PayEveryWorker @Daveblacklist 


If we want to understand why a clearly non-essential sector of the economy has been allowed to proceed relatively untouched by the current lockdown it helps to look briefly at its economic power.

The construction industry is probably the last remaining heavy industry of any size in the UK and is integral to its economy – central and local government are the largest customers of construction industry services, and the industry is central to the myriad of local and regional regeneration schemes across the UK, as well as to flagship infrastructural projects like HS2, Crossrail and Johnson’s (probably fabled) new hospital building programme. 

According to a HoC Briefing Paper in Dec 2019,

  • The construction sector contributes £117 billion to the UK economy, 6% of total economic output. 
  • There are 2.4 million jobs in the sector, 7% of UK total; self-employed jobs in the construction sector account for 37% of all jobs, almost three times the proportion in the whole economy (13%).
  • There are 343,000 construction businesses in the UK, 13% of the total.

In short, the sector enjoys structural power. Moreover, this power is augmented by the fact that the UK industry is dominated by a relatively small number of major contractors – in effect, a cartel, not least one which David Whyte and myself have detailed in the past as criminogenic.

Given the size and concentration of the sector, and its centrality to the economy, it is unsurprising that it enjoys privileged access to the political sphere. The major companies – such as Amey, Balfour Beatty, Costain, Kier, Lang O’Rourke, Morgan Sindall, Skanska UK and Sir Robert MacAlpine – are linked into the formal political process in the UK through a series of personal and institutional links, via their numerous trade associations, and no doubt by the fact that construction companies and property developers are significant donors to the Conservative Party.

A Hostile Environment

As a labour intensive industry, labour costs are significant within construction – and this helps to explain why it has never been worker-friendly. It has a long history of anti-trades unionism and attacks on health and safety, since both impede and slow production, adding costs and eroding profits. This antipathy to worker protection and to trades unionism is no better highlighted than in the ongoing Blacklisting scandal.

In 2008, in the UK, it was publically revealed that some 3,000-plus building workers were on a ‘blacklist’, preventing them gaining employment, mostly as a result of trade union health and safety activity. Such practices are far from unknown in the UK – for example, the Economic League had similarly operated as a clandestine anti-union information-gathering unit between the early 1970s and early 1990s.

The latter evidence of a blacklist had emerged first in an Industrial Tribunal initiated by Manchester electrician Steve Acheson. The now collapsed and disgraced building firm Carillion was found to have unlawfully dismissed him from the Manchester Royal Infirmary site.  During the hearings, the head of the company’s personnel department revealed that Acheson had been on a blacklist of ‘known troublemakers’. In 2008, following those revelations, the UK Information Commissioner launched an investigation, as part of which, in February 2009, a search of the offices of a company trading as The Consulting Association (CA), found files which showed that 44 building firms paid between £25 and £28,000 per year for information on the blacklist in financial year 2008-09. This was only the start of a long legal and political battle, during which the staggering extent of state collusion in the maintenance of the blacklist was exposed.

Keeping health and safety activists away from building sites is a very knowing strategy – for the construction sector is consistently the most dangerous in Britain. For example, the most recent statistics by the Health and Safety Executive show that, on a five year rolling average, in terms of numbers of deaths, the construction sector has the highest number of fatal injuries of all sectors in Britain. In terms of the rates of fatal injuries, the rate of fatalities in the sector is three-times the all-industry rate. Meanwhile, construction also has a higher non-fatal injury rate than the all-industry average. And it also has very significant levels of occupational illness – for example, it records a higher number of musculoskeletal disorders than any other sector. It is worth noting that HSE data omits significant numbers and categories of deaths, injuries and illnesses, not least amongst the self-employed. And these make up a sizeable proportion of the construction industry workforce, where there are over a million workers registered as self-employed.  

So historically the sector has been, and remains, one with a very poor health and safety record – and one where employers have sought to bully, often illegally, workers into accepting this state of affairs. Yet historically and even now in the context of the pandemic, workers are threatened or summarily sacked if they speak out about safety on site – risking their future employment.

From Social Distance to Social Murder

Posted on twitter on 17th April by Lee Turner @Lrff3

So we have a very powerful set of companies – hardly known for being law abiding – overseeing an historically dangerous industry. Now added into this toxic mix is the Government’s decision to keep sites open – albeit with guidance that workers ‘socially distance’.

The Construction Leadership Council (CLC), located within the Department for Business Energy and Industrial Strategy, and which works “between industry and government to identify and deliver actions supporting UK construction in building greater efficiency, skills and growth”,  has issued three versions of ‘Site Operating Procedures’ since the start of the Government shutdown to ensure “social distancing” on sites.

The most recent, on 14 April, notes, amongst others things, that where “the social distancing measures (2 metres) cannot be applied”, then workers “should work side by side, or facing away from each other, rather than face to face” and “Keep this to 15 minutes or less where possible”. The scientific basis for these no doubt highly protective measures has yet to be published. They would be laughable were they not to be so deadly.

Of course, such social distancing simply cannot be achieved in one of the most labour intensive industries, and our mendacious authorities will know that on sites, in canteens and huts, and as they travel to and from work, construction workers are exposed to, and are unwitting carriers of, the coronavirus. What is more, the Health and Safety Executive, the body which might have helped to oversee compliance with basic health and safety law – which would surely result in sites being shut – has, in the past fifteen years, had its enforcement capacity virtually completely undermined. Instead, in fact, it has signed up to this sham of social distancing guidance for building sites.

Keeping the sites open has undoubtedly added to, and continues to add to, the spread of the virus and so to loss of like, amongst construction workers and their families, and across our communities. In my view, it’s criminal negligence. It’s state-corporate manslaughter. It is the unavoidable and unnecessary cutting short of lives for the sake of profit – or, as Friedrich Engels in his classic 1845 book, The Condition of the Working Class in England termed it, social murder.

Infectious criminalisation: new waves of ‘coronavirus’ criminalisation and zemiology

At HERC we publish blog articles covering a wide range of issues that broadly relate to harm, evidence, crime and justice. In keeping with the critical position of HERC, our aim is to highlight all sides of the debate and to facilitate a discussion so that all voices are heard on the issue.

In this article, Avi Boulki considers the ways in which social harms are proliferating during the Coronavirus pandemic. Avi Boukli is Senior Lecturer in Criminology at The Open University.

Spring has struck this year. Food is really expensive. Have you noticed?

Amidst the world-sweeping pandemic, some of us find solace in exercising at home, indulging in [fill in the blank with something you/I can still afford], reading and re-reading the news, zoom-drinking with loved ones. The world has changed. Susan Sontag wrote in 1973 “… a society becomes ‘modern’ when one of its chief activities is producing and consuming images…”. Then perhaps a society becomes “unmodern” when, amid lockdown, successions of joggers elbow you at the park, shouting goodbye to the recommended 2-meter distance and your spleen.

Writing in lockdown on criminalisation and zemiology is both a complex and a simple task. On the complex level, with the lens focused on the state-corporate management of the pandemic, this blog post traces some of the relations between criminalisation measures that emerged as a response to the coronavirus pandemic and zemiology. It starts by visiting some criminological insights in relation to crime and the pandemic, before it moves to offer some suggestions as to how zemiology could account for the social harms exacerbated and made visible by the pandemic. It is also simple. Zemiology still enables us to assess what is happening from a political, economic, physical, emotional, and cultural point of view. Amid rapid socio-political changes, zemiology retains its shape and hope.

But let’s trace Ariadne’s thread:

Criminology is fascinating. In his lucid podcast, Manuel Eisner, discusses crime in times of the 2020 coronavirus pandemic. He takes a criminological perspective to discuss the social, legal, and political dimensions of a “crisis” but also includes criminological theories that strive to explain the current crime declines and increases, the trends’ highs and lows. The pandemic has raised some crucial fluctuations in crime, Eisner argues. For instance, in NY burglaries seem to be declining, while car thefts are on the rise. Similarly, some variations in crime rates appear in London too: knife crime and burglaries have dropped in the weeks that followed the introduction of social distancing and subsequent lockdown state response to the pandemic. This has meant both a material effect but also a shift in public and media discourse.

But what are the effects of keeping the focus solely on crime and crime control? Firstly, the narrow gaze on crime and crime control, at best, pushes back the perpetuation of social harm on the list of priorities for investigation. At worst, it further silences social harm, supplemented by surreptitious zemia. Particularly, the measures to deal with the “pandemic crisis” are not applied to a pre-existing just and equal society, but spur an authoritarian controlled capitalism that protects corporate interests while “offloading the costs onto the rest of us” . Essentially, vulnerable highly indebted workers, with limited access to benefits and public services are further crushed in the mill of casualisation, while working rights are demolished and layoffs skyrocket, “without concern for due process and as remote working destroys all limits to the working week”. As a result, a wide variety of physical, financial/economic, emotional, psychological, and cultural harms proliferate.

A picture containing outdoor, rock, bird, rocky

Description automatically generated
Image of underwater pebbles and seashells, IP: Avi Boukli

Secondly, a sole focus on crime and crime control threatens to conceal the harms perpetuated by criminalisation measures. In the UK, draconian countermeasures are both vague and sweeping simultaneously, allowing the police almost unlimited discretion in exercising ill-defined powers. While they are combined with ever more draconian “feel good” and stay at home “essentials” – foldable table tennis nets (no space-shaming involved), jigsaw puzzles, and flour – are now sold at eye-watering prices for the labour aristocracy, and the wider working class alike. These criminalisation measures did not come in time to curb the deaths inflicted by the pandemic but with a time delay, and with an unequal impact on those of us who live on the streets, in shared accommodation, limited spaces, total institutions, and those of us who have long-term health conditions, which are meant to be paused to avoid further strains on an already overstretched health service. Further, these criminalisation measures do not put pressure on big pharmaceutical companies to develop, let’s say, the fastest and most affordable vaccine against a highly contagious virus, but on individuals to accept responsibility for catching or spreading the virus. Again, structures disappear, and the individual is reborn, Matrix-esque, responsible (“an imminent threat”) and covered in gelatine sociability (subject to “restrictions or requirements”).

As a result of the above, the language of zemiology is helpful in reading critically the Health Protection (Coronavirus) Regulations 2020 and the Coronavirus Act 2020, and the collapse of public health into public order. In summary the Regulations make it illegal for: i) a wide range of shops and businesses to open or to sell food or drink for consumption in their premises (Regs 4, 5); ii) a person to leave their house without a reasonable excuse (unless they are homeless) (Reg 6); a person to take part in public gatherings of more than 2 people subject to exceptions (Reg 7).

However, the lack of clarity regarding what constitutes a “reasonable excuse” or a valid “exception” may actually leave room for the usual norms around disability, class, and gender to fill in the blanks left by this “crisis” law. For instance, would a victim of trafficking escaping captivity, have a reasonable excuse on the basis of Reg 6 (m.) and what burden of proof does this involve? And a bit further, who is excluded from business bailout plans? Sex workers? Who is excluded from the category “vulnerable persons”? People with mild chronic asthma who struggle to breathe in spring, people with chronic conditions such as Crohn’s, Colitis, Chronic Fatigue Syndrome, and high blood pressure or an undiagnosed condition at the time when the measures were imposed? Lastly, who is the exception and who is the rule: is homelessness an exception, or is it a sign of vulnerability, or is the “crisis” the Pool of Siloam for political purposes… And equally, who is included? Do the business bailout plans include highly profitable wealthy businesses with large cash reserves? Uneven impacts are not abstract ideas but material realities, made up of bodies like yours and mine. Pre-pandemic we didn’t live in an equal society and it is hard to see how the restrictions imposed are going to mend the harms of these inequalities by collapsing the maintenance of public health into that of public order. As for the cultural harms, there is a concern that a decline in (street) violence in the public sphere, may go hand in hand with a rise in domestic violence.  But, after having being circled by a group of fellow citizens to be coughed at, or experiencing the exacerbation of physical dominance in public spaces by certain bodies over others, I argue, women, LGBTQ people, and men locked in with their abusers experience not just the collapse of public services into public order but, most crucially, the collapse of the public sphere into the domestic sphere and vice versa. Public inequalities are now domestic ones. Drawing on a zemiological analysis seems vital at a time when governments exhorts us to “work together” and focus only on essentials. While reducing infections is clearly crucial, we must not forget to consider who is treated as collateral damage or in need of more repressive state intervention in the name of public health.

On why REF work is ethically compromising in a post COVID-19 crisis: a very personal account

At HERC we publish blog articles covering a wide range of issues that broadly relate to harm, evidence, crime and justice. In keeping with the critical position of HERC, our aim is to highlight all sides of the debate and to facilitate a discussion so that all voices are heard on the issue.

In this article, Jo Phoenix considers ethical questions about the REF in the context of the Coronavirus pandemic. Jo Phoenix is Professor of Criminology at The Open University.

On March 16, 2020, I had a career first as I spent the day paralyzed trying to figure out whether it was morally and ethically right to continue with undertaking REF preparation work – a key aspect of my professional role. I decided it was not, even though I suspected that doing so may disadvantage many of my colleagues. I am responsible – along with another colleague – for the Open University’s Social Work and Social Policy unit of assessment submission to REF2021.

For those who do not know, REF (short for the Research Excellence Framework) is a government led, mandatory audit exercise which, every several years, distributes research funding based upon an assessment of research quality of all disciplines at every HE institution. This type of exercise started in 1986 when Thatcher disbanded the University Grants Committee in order to institute a new ethos and mechanism for research funding allocation: competition with the most money going to the ‘best’ universities and ‘best’ to be determined by a review of research quality (see Salter and Tapper (1994) The State and Higher Education, Routledge for an extended discussion of the relationship between the state and universities from WW2 until the end of Thatcherism).

Three decades later, REF is organised into disciplinary ‘units of assessment’ that assess publications from each academic alongside other measures, like ‘research impact’ (the extent to which research has had a (presumably positive) effect on, change or benefit to the economy, society, culture, public policy or services, health, the environment or quality of life, beyond academia) and ‘research environment’ i.e. research income, numbers of postgraduate completions and the infrastructure and support given to academics.

My ethical crisis was prompted by an internal Open University deadline for producing the first draft of one key section of the ‘Social Work and Social Policy’ statement. I had set aside the week of the 16th March to write it, along with my colleague. By 18th March, however, I decided that I would put no further energy into REF preparation work and informed University research managers that this was the case. What follows is a personal account of the questions and thoughts I’ve been asking myself and having. But with all things personal, this is also a political account.

Academics and new pressures when ‘working from home’

Working mom” by Ran Zwigenberg, licensed under CC BY 2.0

We know that as serious as the COVID pandemic is, so too are the unprecedented measures that are being taken by governments all over the globe, from ‘lockdowns’ which enforce social distancing and social isolation to sweeping new governmental powers including effectively nationalising the economy and suspending the normal practices of democracy and the rule of law. Courts are not sitting and even parliament has been suspended. One of the measures taken by the government in the UK was to require those who could work from home to do so. Universities were among some of the first tell their staff to work from home. Working from home for many academics is not necessarily something new. However, this time, Universities were asking academics to ‘pivot’ to online provision for teaching. ‘Pivoting’ is extremely resource hungry. Not only does it take time and energy and against a backdrop of exceptionally rapid and deeply traumatic personal and social changes, it is also taking place in the middle of a UCU union action of short of strike that is scheduled to last until the end of April.

Social distancing and working from home may mean that ‘the home’ is becoming overcrowded.  Not everyone has a home study or office. As of 20th March 2020, homes became even more crowded as schools closed and children who would usually be out of the home during school hours are now in need of care. The vulnerability of older people and other ‘at risk’ groups to COVID-19 places even further strains on the resources of ‘the home’ as academics working from home may find themselves having to help their elderly, vulnerable and at risk relatives, family members and partners take the precautionary measure of ‘self-isolating’ for the recommended 12 weeks.

Britain Queues For Food- Rationing and Food Shortages in Wartime, London, England, UK, 1945

As of 23rd March, the time spent obtaining basic groceries in a context of panic buying in supermarkets, new social distancing measures and the collapse of online deliveries has grown exponentially. Meanwhile, it is worth noting that academics have not been immune to the effects of the pursuit of neo-liberal economic policies and the destruction of the welfare state. COVID-19 comes hot on the heels of a protracted industrial dispute between UCU and UUK. The effect is real and visceral as they see their normal monthly salary reduced as a result of their Universities deducting 14 days of salary for taking part in the strike action of February and March. Many, particularly younger academics and those with children, find themselves in communities of high density accommodation which provides one of the preconditions for a viral ‘hotspot’ with all that now means on top of reduced salaries and increased employer expectations.

Across the sector there are many who are willing to ‘pivot’ in order to maintain teaching for, as professionals, we are concerned for our students. The fact that this is an ethical choice ought to be acknowledged. As the sociology of professions teaches us, one of the defining ethical values of professionals is a commitment to altruism and clientelism (Carlen 2012[V4] ). In our work as educators, we serve our students and make decisions based on what is right and good for them. We don’t do this because it serves the (economic) purposes of our universities, or simply because it is in our employment contracts. Most of us will do the work necessary to ensure that our students are able to carry on with their education despite the burdens of the new context of working from home.

REF, The Political, The Personal and The Ethical

For me, the nature of the REF has numbed the critical social science imagination and makes the coming ethical research crises we are facing very real. In an earlier book chapter, Carlen and myself argued (in the context of criminology)

  • that ideals of professionalism and open scientific inquiry were being threatened by a combination of marketisation and corporatisation of research,
  • and that ideologies of ‘the market’ and corporatism, combined with REF, ensures researchers direct their imaginations towards securing large grants and ‘impactful’ research,
  • alternative criminologies (read critical) demand that meanings of crime and justice and their relationship with social justice are constantly called into question and analysed rather than accepted, and
  • it is not possible (or even desirable) to establish in criminology the type of impact beloved of REF whilst critiquing the shifting meanings of crime and justice (Carlen and Phoenix 2017).

I would extend that argument to social science more generally, especially now.

The overriding question I have found myself asking for the last two weeks: what is the research that we do for? Is it there to secure our individual University’s strategic research objectives of success in REF and thereby a larger slice of the Government’s research monies and/or bragging rights that help in the academic marketplace to attract students? If REF went away forever, would we still pursue our individual 5 year personal research plans? How prepared are we to intellectually ‘pivot’ and stand up to what COVID and the anti-contagion measures mean? From my perspective as someone who started as an academic before the first fully audit based Research Assessment Exercise in 1996, two decades of managerialism and audit exercises has changed what ‘doing research’ means for many academics. They see it as something they do in order to fulfil their university’s employment expectations: to progress their careers whilst also playing their part in achieving ‘a good outcome’ in REF. Enter the rise of the instrumental (pragmatic?) academic.

Alongside shifting meanings of ‘research’, I would argue that the meaning of ‘ethics’ in universities has changed. Whereas once ‘ethics’ referred to morality in action, it increasingly refers to risk and liability – or what Carlen and I called “amateur socio-actuarialism”. I’d like to invoke that older sense of the term ethics and suggest that nothing we do at work is ethically (or politically) neutral. In an everyday sort of way, our professional conduct is shaped by and within a set of usually tacit, occasionally explicit agreements between us and our employers (our employment contract) and between us and our learned societies (our codes of conduct or codes of ethics) as well as between us and our colleagues and our research participants. Without wishing to be repetitive, these agreements take place within a further set of normative values about professionalism and scientific inquiry – even if, as argued above, the last three decades has seen an erosion and corruption of these ideals.

My ethical dilemma then: at a moment of extreme global crisis, do I ask my colleagues to continue to work and prepare for the REF? Do I do so when I know that ‘work from home’, ‘social isolation’ and ‘social distance’ means that any former distinctions between private and public life are rapidly becoming utterly meaningless? Do I ask them to press on with collecting evidence of the impact knowing full well that such is likely to come from third sector and governmental organisations who themselves may be overburdened with the coming health crisis? Do I ask my colleagues to carry on, as though nothing has changed except the *how* of what we do? Finally, do I ask the imaginative social scientists who are part of the UoA for which I am responsible to spend their precious few hours and moments of head space to help my university – whose social justice mission I admire – to prepare for an audit that many never come, in a world that may never return to ‘normal’? Particularly where some universities have – historically and contemporarily – created REF managements systems that also serve to discipline the workforce, introduce job insecurity and through an ideology of REF ‘stars’ create divisive hierarchies between professional academics. (How else to we theorise the category ‘research active’?) No. I can’t in all good conscience do any of that.


Events have rather over-taken me and my dilemmas. Research England (the governing body in charge of the REF) have announced a postponement of the exercise in light of the unfolding COVID catastrophe. Yet, still colleagues at the OU and elsewhere are continuing to do REF preparations. It has been suggested to me that people need the routines and discipline of work to continue in this new world. Others have suggested that their disciplines and work have nothing to do with COVID and want to continue with REF preparations, therefore. Still others have suggested that there is only so much teaching and support that can be done, that administrative jobs are at stake or that their roles (as professional academics) are solely about REF. To them I say this: the world is changing rapidly and what it needs right now are critical social scientists who have the skills, knowledge and expertise to understand it, to hold government to account for its (in)actions, and most of all to contribute their time, labour and energy to heading off the human tragedies that are within sight. Or maybe just to survive. This is not a time to do REF preparation work. With that, I’m off to do whatever I can to support my students, get prisoners out of the coming death traps that will be our prisons and women and children out of the prisons of their abusive homes.

Coronavirus and prisons: the need for radical alternatives

At HERC we publish blog articles covering a wide range of issues that broadly relate to harm, evidence, crime and justice. In keeping with the critical position of HERC, our aim is to highlight all sides of the debate and to facilitate a discussion so that all voices are heard on the issue.

In this article, David Scott and Joe Sim consider the position of prisoners in relation to the Coronavirus. David Scott is Senior Lecturer in Criminology at The Open University and Joe Sim is Professor of Criminology at Liverpool John Moores University.

Wandsworth prison from the air by Thomas Nugent

Thinking critically about the coronavirus (COVID19) means thinking about the exercise of power and social divisions. While it has been reported that the rich have been jetting off to private islands, and while celebrities have been paying for testing and then unashamedly proclaiming to the world that they are not infected, as ever it is the economically and socially vulnerable who are being harmed by this pulverising virus. The brutal imposition of free market capitalism, and the retrenchment of social democratic states from policing the economic and harmful activities of the powerful, lie at the root of the crisis. It is these processes, and the systemic indifference to their human costs, which are now proving to be the gravediggers of the powerless.

The coronavirus is of greatest danger to the most vulnerable people in society, especially those with underlying health problems and/or living in inadequate social conditions.   The incubation and spread of the virus is hastened by dirty, overcrowded and unhygienic environments with poor ventilation and sanitation.  Close physical contacts in restricted spaces results in what epidemiologists are calling “cluster amplification”. Whilst the virus presents an existential threat to many around the world on the downside of capitalist exploitation, especially those in slums, ghettoes, refugee camps, or among the homeless, the focus of this article is on risks associated with prisons.  Indeed, at the time of writing, the coronavirus already has a presence in a number of prisons England and Wales, with a significant number of prisoners and prison staff developing symptoms and subsequently placing themselves in isolation.  The first prisoner death was reported at HMP Littlehey on 26th March, and later that same day another death at HMP Manchester.  At the time of writing, a new birfucated approach appears to be in the making, with the government apparently on the verge of both introducing mass lockdowns across the penal estate, enforcing 23 hour bang-up for most prisoners, whilst at the same time seriously considering whether pregnant women and remand prisoners could be transferred to bail hostels.

In this article particular attention is given to the position of prisoners. What about their health and safety? How will they be protected physically and psychologically from the ravages of the virus? What about different groups of prisoners? What should a radical response be to this life and death issue for prisoners?  This article considers these questions in relation to England and Wales.

Minimising Disruption or Minimising Harm?

In a remarkably candid account on BBC Radio 4’s Today programme, the current president of the Prison Governors Association, Andrea Albutt, warned that the transmission and death rate of the coronavirus was likely to be much higher in prisons than the general community.  Despite further warnings from leading epidemiologists that up to 60% of the prison population (approximately 50,000 prisoners) could be infected resulting in a death rate perhaps as high as 2.3%, the government response thus far has been one of containment and situational control.  The prisons minister, Lucy Frazer, in her statement on preparedness to deal with the virus in prisons on 12th March 2020, focused on reassurance and minimising disruption to the existing penal regimes:

Prisons have existing, well-developed policies and procedures in place to manage outbreaks of infectious diseases. This means prisons are well prepared to take immediate action whenever cases or suspected cases are identified, including isolating individuals where necessary.

Basic hygiene is a key part of tackling the virus and good practice is being promoted on posters throughout the estate. Handwashing facilities are available to all prisoners – not just in cells but other shared areas such as education blocks and kitchens. Staff and visitors also have access to handwashing facilities and we have worked closely with suppliers to ensure adequate supply of soap and cleaning materials.

Prison officers are to adopt prophylactic measures (like wearing disposable gloves; fluid repellent face masks; plastic aprons; and disposable face visors or goggles), minimise non-essential contact and try to keep less than 2 metres distance from prisoners.  Alongside this emphasis on ‘protective isolation’, and the payment of prison officer bonuses to cover extra shifts, the the government is also considering a strategy of ‘cohorting prisoners’ (which is grouping people together who have symptoms of COVID19 should there be insufficient isolation. 

Should the numbers of cases in an establishment increase, isolation resources could be under pressure. Cohorting is a strategy which can be effective in the care of large numbers of people who are ill by gathering all those who are suspected confirmed cases into one area (or a limited number of areas where it is necessary to keep some prisoners or detainees separate).

However, these policies have severe limitation, an issue to which we now turn.

The Limitations of the State’s Response

Given that the negative health implications of COVID19 are much more severe for those with multiple exposure to the disease (as evidenced by the deaths of health care workers) the proposed last-ditch strategy of “cohorting” is deeply concerning. Indeed, this policy, if introduced in the coming weeks, could prove disastrous. Prisoners with COVID19 housed together will be subjected to multiple infections of the disease and, especially for those with underlying health problems, this could escalate the seriousness of the illness.  Indeed, the consequences of the cohorting policy may become tantamount to ‘social murder’ – cohorting COVID19 positive prisoners is a political decision that almost certainly will result in social arrangements that are unsafe, harmful and result in premature and otherwise avoidable deaths. But this is not the only limitation of the current policy. The emphasis on social isolation and social distancing, designed to curb the virus, continue to dominate the state’s response are problematic for different groups both inside and outside prisons.  For example, outside prison, they fail to consider women in domestically abusive relationships. How can these policies protect them and minimise harm?.

In prisons, safe quarantine measures are effectively impossible to implement. For decades, the appalling conditions inside, compounded by gross and needless overcrowding, particularly in male, local prisons, have been highlighted by critical academics, prisoners’ rights organisations and by official bodies such as the Prisons Inspectorate. Since the beginning of 2018, the Inspectorate has produced a number of withering reports which have pointed to the abject and soul-crunching conditions in which many prisoners exist. The Inspectorate’s report on Birmingham prison, published in August 2018, was scathing about the conditions inside:

Communal areas in most wings were filthy. Rubbish had accumulated and had not been removed. There were widespread problems with insects, including cockroaches, as well as rats and other vermin. We saw evidence of bodily fluids left unattended, including blood and vomit. I saw a shower area where there was bloodstained clothing and a pool of blood that apparently had been there for two days next to numerous rat droppings. Many cells were cramped, poorly equipped and had damaged flooring or plasterwork. Most toilets were poorly screened, many were leaking and we saw cells with exposed electrics.

The National Audit Office, looking more broadly at the prison estate, also recently found that prisons were infested with vermin, damp, wet, and cold. This evidence of dilapidated prison building seems to stand in stark contrast to the claims of the prison minister about prison hygiene. Given such conditions, the point made by Richard Coker is crucial. As he notes [p]risons and centres of detention are well-recognised ‘epidemiological pumps’. They can spread disease outwards into the community if the internal dynamics of disease transmission are not confronted. This happened in the USA, and the former Soviet Union, when HIV and multidrug resistant tuberculosis infected those beyond the walls. Therefore, reducing ‘unnecessary close contact in closed environments may help prevent large case clusters and superspreading events that seed beyond those confined’. Whilst such ‘bridgehead’ arguments about the spread of diseases alone are not sufficient (they erase the human dignity of prisoners), they do highlight the importance of getting the policies on containing the virus in prison right.

In his annual report published in July 2019, the Chief Inspector of Prisons was blunt: ‘far too many prisoners still endure very poor and overcrowded living conditions’. The physical and spatial restrictions of the prison place also mean that there is more handling and touching of goods and physical objects and there are numerous concerns regarding the spread of contamination through the physical limitations imposed by security measures on preparations for food and drinks. Given current living conditions, security restraints, and the overcrowding which means that many prisoners are sharing cells and ironically are often isolated and locked down in these cells because of the lack of purposeful activity, how can prisoners feasibly be kept safe and harm minimised by the limited policy suggestions of the government in recent days?

Prison landing during lockdown

These issues were further highlighted in a report published by Parliament’s Health and Social Care Committee into prison health care in November 2018. The two paragraphs below provide a clear indication of the state of health care inside:

Even the most basic needs of people detained, such as their diet and living conditions, continue to be compromised in some English prisons. HMIP’s most recent annual report noted that inspections over the last year have identified poor, and even squalid, conditions in several prisons. Prison establishments frequently struggle, according to the inspectorate, to provide meals of sufficient quantity and quality on £2 per day per prisoner. 

Short-staffed, overcrowded prisons severely limit access to healthcare and the ability of prisoners to lead healthy lives. Prisoners spend the vast majority of their time in their cells, limiting their opportunity to move and engage in adequate levels of physical activity, and their access to healthcare, inside and outside prison, is restricted. Only 16% of prisoners report being unlocked for the recommended minimum of 10 hours per day. A third of people detained in local prisons and almost 40% of people held in young adult prisons report spending less than 2 hours out of their cell a day. Low staffing levels, excessive waiting times for some services and inadequate management of prisoners with chronic conditions are three recurrent concerns HMIP and CQC have about the delivery of healthcare in prisons, based on the findings of their joint inspections over the last year (emphasis in the original).

The report also noted that 15% of prisoners have respiratory problems – a condition associated with virus-induced deaths – compared with 8% of the general population.

It is important to recognise that prisoners are not a homogenous group. The population is diverse with complicated health care needs. Elderly prisoners, one of the fastest rising groups in the prison population and of course, the group most vulnerable to the virus on the outside, are confronted by a prison system which even if there was no crisis, does not deal with their needs. There are more than 1,800 prisoners over the age of 70 (219 people in prison are over the age of 80) and more than 60% of prisoners over the age of 50 have disability. According to the Health and Social Care Committee’s report, older prisoners ‘are frequently held in prisons which, even with reasonable adjustments, are unfit for their needs….’.

Other prisoners have specific health issues. For example, what about women in prison who are pregnant? What about the specific health care needs of black and minority ethnic groups?

It is also important to recognise two other issues which have not been addressed so far. First, it is not just a question of protecting the physical health of prisoners. There is also the issue of their psychological health. Being detained in a prison cell waiting for the virus, or simply waiting to hear details about the spread of the virus, and, unlike those on the outside, having very little, if any autonomy, to address negative thoughts about the virus, is likely to have a detrimental impact on the confined. Therefore, it is important to address the particular situation confronting prisoners with respect to the psychology of the virus. The prison makes all prisoners not only physically vulnerable but also psychologically vulnerable. This may also be intensified for those prisoners in segregation. Second, there is the issue of prisoners’ families and the stress that they are likely to experience in not knowing about the physical and psychological health of their relatives. Like prisoners, their families are also often treated as less than human and as less eligible subjects as the often-desperately negative experience of the families of prisoners who die in custody indicate.

The organisation of prisons makes even the most practical policies difficult to implement.  Whilst the UK government claims there are appropriate handwashing facilities in prisons in England and Wales, hand sanitisers, for example are often considered contraband in prison because they can contain alcohol.  Handcuffed or otherwise restrained people cannot cover their mouths when they cough or sneeze, sinks often lack soap. According to a recent account by a prison doctor, there is also the issue of getting prisoners to hospital who are ill given the combination of security and staff shortages. In dealing with one prisoner in Wormwood Scrubs she pointed out ‘I knew as always, that I would have a battle on my hands to arrange for his admission to hospital’ (emphasis added).  At Wandsworth, in 2017, two hospital appointment a week were missed on average because there were no officers available to escort prisoners. For Chris Atkins, who served part of this sentence in Wandsworth, ‘[p]rison health care is straight out of the Middle Ages. It wouldn’t have been out of place if they had started dispensing leeches’.

Radical Alternatives

What is the way forward in England and Wales? There are two dimensions to developing radical alternatives to the state’s policies. First, the state should abandon the fallacy that more prisons and prisoners equal less crime. This is palpably untrue, yet has (mis)informed the law and order policies of successive governments for the last two centuries. Instead, the present government could learn lessons from around the world where prisoners are being released in a number of countries such as Turkey, Spain and Iran where 85,000 prisoners have been released.  Different states and cities in America – New York, Los Angeles, Ohio – have followed a similar decarceration path. Ross MacDonald, the chief medical officer for Correctional Health Services in New York, has called on prosecutors and judges to enable prisoners to be released from the state’s jails in response to the outbreak. These countries have therefore begun to think beyond the traditional punitive responses to crime – locking people up in increasing numbers and leaving them to fester in often-deplorable conditions – and have begun to follow the least coercive, dehumanising and intrusive and restrictive policy possible of releasing prisoners.

This policy challenges the physical and psychological harm that prisons engender and which will only be intensified and magnified if the virus takes hold inside. Of course, how long this decarceration policy will last is a matter of conjecture, but at least there has been some movement away from the blind alley of state coercion and control. It is also important to note that in countries where no such action has been taken, such as Italy, there have been, at the time of writing 27 disturbances resulting in 9 deaths. And not all countries are pursuing these policies. For example, prison labour is being used to shore up supplies of face masks and hand gels in Hong Kong Lo Wu women’s prison where 100 prisoners are working six days a week, in shifts of six to 10 hours, including night shifts. Retired or off-duty prison officers – 1200 of them – are also working to produce the masks. The governor of New York announced the state will also be using prison labour to produce 100,000 gallons of hand sanitiser for schools, prisons, transportation systems and other government agencies. 

An image of the March 2020 Italian prison disturbance

However, it is important to recognise that even if such decarceration policies were implemented, there is still the question of the quality of community support prisoners would receive given the decimation of community support networks due to the ‘violence of austerity’. Prisons cost £4 billion annually, within a criminal justice budget of £16 billion. The expenditure pattern is skewed towards security, control, public order policing and the militarization of the state. Therefore, there needs to be a radical redirection of expenditure towards well-funded community alternatives, staffed by well-trained, fully committed staff. Even in pre-virus times this has not been the case.  Allied to this is the fact that the number of ex-prisoners dying in the community is already disproportionately high. An influx of new prisoners into the community will only be detrimental unless radical policies are put in place to respond humanely, urgently and empathically to them.

On March 25th it was reported in the media that one possible option under consideration by the government was the release of some sentenced prisoners (50 pregnant women prisoners), release of a small number of other prisoners on licence and the possible rehousing of remand prisoners in bail hostels.  Whilst these policies are to be welcomed (and are certainly much more humane than the lockdown of prisoners) they do not go far enough.   Commentators such as Eric Alisson and the charity INQUEST have suggested more radical alternatives to the current situation. INQUEST’s proposals include:

a) An immediate release of all those held in immigration detention centres, in line with recommendations made in the British Medical Journal by key health professionals in the field.

b) Relieving the pressures within prison system by closing child prisons (Secure Training Centres and other facilities holding children) as soon as practicable. 

c) Prompt release into the community and relevant support services for women in prison, alongside increased funding for women’s centres and other specialist support services as a priority. 

d) Dramatic reduction of the population across the rest of the prison estate, with consideration of options to release all those who safely and reasonably can be. This should be done with input from (and funding provided to) community and voluntary sector services providing support for people on release. Nobody should be released into destitution or poverty or faced with a lack of health and welfare support. 

Second, there needs to be a radical transformation in how prisoners are regarded, not just in relation to the current coronavirus crisis but when the crisis has abated. For the last two centuries, they have been regarded as less than human, as less eligible subjects who were undeserving of, or entitled to, decent health care services. There was, in effect, no ethics of care. In practice, this has meant that prison regimes have always been inherently unhealthy and demonstrably unsafe for prisoners which, in turn, has had an often devastating impact on the physical and psychological health of prisoners who have remained outside of the social democratic orbit of care, compassion and protection which those on the outside the prison’s walls have as a right, at least in theory. In areas such as deaths in custody, this has led to prisoners being blamed for their own deaths either because they have allegedly had some kind of abnormal characteristics which have propelled them into self-inflicted death or they have died ‘naturally’.

However, as INQUEST has pointed out: ‘no death in prison is natural’ as the ‘failure to treat prisoners with decency, humanity and compassion is a “consistent feature” of deaths [inside]’. In their evidence to the Health and Social Care committee in relation to ‘natural’ deaths in prison INQUEST pointed to ‘serious lapses in the delivery of, and access to, healthcare’. They included, ‘failures to make urgent referrals where it is suspected that prisoners might have cancer or a failure to “review and treat abnormal blood test results.”  The Committee went on to note that it had

…….received similar complaints in response to our call in Inside Time. For example, one prisoner informed us of the death of his friend who complained repeatedly to healthcare services within the prison about pain he was experiencing. When healthcare services finally did help “it was too late, he had cancer and only had weeks to live.” (ibid)

This is a key point not only for critiquing the statistics around deaths in prison but more broadly in the present coronavirus crisis. Health statistics, like all social statistics, are social constructions. Therefore, while deaths may well be put down to the underlying condition of the individual in fact, such deaths may well be caused by institutional structure of power. In short, such deaths are preventable. As an example, on March 17th in an interview in The Guardian, a consultant cardiologist pointed out that in the previous week, a 79-year old woman was admitted ‘for an elective, non-urgent procedure. She was then diagnosed with Covid-19, which, he says, “she almost certainly acquired on our wards”. She was put on a ventilator but died on Monday night. “I’m sure she will go down as an elderly patient with underlying conditions, but she should have lived to 90,” he said’.

Therefore, there needs to be a political, cultural and social shift away from the criminal (in)justice model that current prevails and which has abjectly failed to protect prisoners and indeed the wider society both from conventional crime and also the rampant criminality of the state and the powerful who enjoy a culture of immunity and impunity not afforded to the powerless. This means developing structures of democratic accountability based not on criminal (in) justice but social justice for all. At the same time, the prison system should be be abolished in its present form, the prison building programme should be stopped and the radical alternatives discussed above should be implemented. Coupled with a less hypocritical understanding of what crime is and who the ‘real’ criminals are, and the removal of the rabid social divisions and gross inequalities  in wealth and power that scar the social landscape and destroy lives, these radical alternatives will ensure the health, safety and protection of the whole society, including prisoners and their families.

This blog was first published by New Socialist on 26th March 2020

Coronavirus, the Johnson Government and the ‘Deference-to-Science’

At HERC we publish blog articles covering a wide range of issues that broadly relate to harm, evidence, crime and justice. In keeping with the critical position of HERC, our aim is to highlight all sides of the debate and to facilitate a discussion so that all voices are heard on the issue.

In this article, Steve Tombs considers the early approach taken by the UK Government to the unfolding Coronavirus crisis. Steve Tombs is Professor of Criminology at The Open University.

As I write, new developments unfold almost minute-by-minute regarding the all-encompassing coronavirus pandemic. There is no doubt that by the time you read this, any empirical reference points I might have included here will be out of date – there will be more diagnosed and suspected cases, more deaths, more volatile movements on the stock-markets and central bank efforts to control these, not to mention, across the globe, increasing closures, shutdowns and lockdown of communities, travel routes and mass gatherings amidst news reports of celebrities and leading politicians who have tested positive for the disease. This is so fast-moving that no snapshot analysis of the harms associated with Covid-19 can do justice to what is, in the experience of any of us reading this, an unprecedented global phenomenon.

What is of interest, however, and what may endure for those interested in Governmental responses to social harm is the early approach taken by the UK Government to the unfolding crisis. The latest, and highest formal point in this, came late on Thursday 12 March, when UK Prime Minister Boris Johnson followed up the third ‘COBRA’ meeting in a week with another sombre, set-piece press conference. It is to this and what it means for Governmental approaches to harm, evidence and regulation upon which I wish to focus here.

The “worst health crisis in a generation”

In the context of Government interventions in social life across the globe of a kind and on a scale never before seen, the response of the Johnson Government has been, by comparison, at best pedestrian, at worst non-existent. For a Government which only 48 hours ago announced what some had hailed as the most Keynesian budget in a generation, the approach to the pandemic has been distinctly laissez-faire.

Credit: Frederic Lewis / Archive Photos / Getty Images / Universal Images Group; source: Britannica Image Quest

The Johnson Government had spent the day trailing the ‘fact’ that the country had moved from a ‘contain’ to a ‘delay’ phase, the latter being one in which we as a population were being primed for significant disruption. Yet that ground-laying was surprisingly at odds with the concrete measures set out by Johnson. In fact, and in full, these were as follows:

“From tomorrow, if you have coronavirus symptoms, however mild – either a new continuous cough or a high temperature – then you should stay at home for at least 7 days to protect others and help slow the spread of the disease.

We advise all those over 70 and those with serious medical conditions against going on cruises and we advise against international school trips.”

And in his closing statement, the PM reiterated the message of the preceding weeks:

“it is still vital, perhaps more vital than ever – that we remember to wash our hands”.

Such a response seems entirely at odds with the way in which the PM had introduced the press conference, referring to the “worst health crisis in a generation” which had led him to warn: “I must level with you, level with the British public, many more families are going to lose loved ones before their time.”

The appearance of science?

How, then, to make sense of this?

Firstly, we must understand the framing of the approach, typified at the press conference but characteristic of the Government’s response to the emerging pandemic over weeks. In his speech and then in response to questions, Johnson continually deferred to ‘the science’ and ‘the scientists’.

This deference was achieved visually in his being flanked by the government’s Chief Medical Officer, Prof. Chris Whitty, and the government’s Chief Scientist, Sir Patrick Vallance – as had been the case with previous press conferences on the matter earlier in the week. Not just this, but in the brief series of questions that were allowed following the three set-piece speeches by Johnson, Vallance and Whitty, the visuals were also reinforced – or at least that was the attempt – by a frankly somewhat ludicrous ‘sombrero’ type graph. A diagram on a flipchart, this was claimed to represent what an epidemic looked like – a flat lead in with a significant spike which, if not ‘flattened’, it was warned, would  overwhelm the country’s ability to cope and lead to ever greater death and emmiseration.

There was no sense as to what data had been used to construct the ‘graph’. Indeed, although minutes before the press conference, figures of 596 diagnosed cases  and 10 fatalities as a result of the virus in the UK had been released, Vallance estimated at the conference that “between 5,000 and 10,000 people in the UK are thought to have the virus now”, albeit virtually all undiagnosed, and not to be diagnosed, as it was also announced that testing in the community for the virus would from that point be halted. All of which places a great deal of emphasis on the epidemiology and the ’modelling’ to which all three men constantly referred  – and led some to wonder, what is it about UK data, science, epidemiology and modelling which is virtually unique when compared to that of every other country which has dealt with or is dealing with the same disease?

The discourse of science?

Given these discrepancies, the role of ‘science’ in the Governments approach seems at least  questionable. But this science-basis was reinforced discursively, consistently and constantly framing the Government’s approach as a scientific not a political matter. This had been evident for weeks but was perfectly captured in the set piece speeches at the press conference, and then the questions that followed. Thus, in his opening speech there, Johnson stated variously:

  • “the Chief Scientific Adviser will set out the best information we have on that in a moment”
  • “the Chief Medical Officer will set out our lines of defence”
  • “we are not introducing this [school closures and banning large gatherings] yet for reasons Sir Patrick will explain”
  • “ .. the scientific advice ..”
  • “at all stages, we have been guided by the science, and we will do the right thing at the right time”
  • “the scientific advice [on closing schools now] is that this could do more harm than good at this time”
  • “ .. the best scientific advice ..”
  • “ .. we will continue to provide, as soon as we have it, as much clear scientific and medical information as we can ..”

So there is a key framing going on here – that the Government’s position is a-political, driven by, based on, and ‘all about’ the science. But this, of course, is to obscure some two centuries of anti-positivist social science which theorises and describes how science is always an effect of what questions are asked and what data is gathered to answer them,  always to be interpreted in highly value-laden ways, always and unavoidably infected by economic, political and social interests. It is, frankly, a ludicrous way to present ‘data’, not least by a Government in the midst of an unfolding crisis.

Nudges in the right direction?

Photo by Frederic Lewis/Archive Photos/Getty Images; source: Britannica Image Quest

As well as the attempt to root it in ‘science’,  we also have to view the Government’s approach to the virus in a second context, one entirely in keeping with the broader, longer term trajectory in government regulation in the UK. This stretches back at least four decades. It is a  trajectory towards less regulation, less law, less enforcement, less intervention in social life, at least where these might affect the dominant institutions of our society and how these operate – all of which is claimed, perversely, to produce better outcomes in terms of social protection.

Look again at the strictures set out by Johnson to ‘flatten the curve’ as we move into the ‘delay’ phase – to use the quickly commonplace, but quasi-scientific jargon: wash your hands, self-isolate for ‘at least’ 7 days, don’t go on international school trips and avoid cruises if you are over 70. These all responsibilise – they place the primary onus of protection on individuals themselves with what is often banal or imprecise advice. And advice is key: none of this overly prescriptive (no ‘you must’ or ‘must not’), certainly none of it involves regulation nor law, all of it is based upon attempts to nudge people into modifying their behaviour. And here we get to the heart of the ‘other’ aspect of the scientific approach informing the Government here, namely ‘behavioural science’’.

Following, and partly as a consequence of,  the emergence and consolidation of ‘Better Regulation’ (ie less regulation) at the heart of UK governments through the 1900s and 2000s, the idea of nudging people towards more ‘responsible’ behaviour became ever central to Government thinking about regulation. Nudging – as an element of what is known as ‘behavioural science’ – came to prominence with the work of Richard Thaler, the Chicago economist who was to win the Nobel Prize for economics in 2017, and the Harvard economist Cass Sunstein. The latter had worked in the White House Office of Information and Regulatory Affairs, and his view of state regulation is encapsulated in the title of a 2013 book, Simpler: The Future of Government, which has been characterised thus:

“New principles  … are  transforming government. Countless regulations are being streamlined or eliminated. Transparent review of which rules are working, and which aren’t, is becoming the norm. Citing numerous examples from his years in the first term of the Obama Administration, and projecting forward into a data-driven future, Simpler provides a new understanding of how government can work.”

The approach is one underpinned by an antipathy to state intervention and regulation, as typified in the UK in the work of the Nudge Unit’, established by Cameron in 2010 within the Cabinet Office.  Although now only partly overseen by the Cabinet Office, this has been “working closely with the Department of Health and Social Care in crafting the government response” to Coronavirus. It has been a key influence over  “when to move from ‘contain’ to ‘delay’ phasing. This is based on evidence about duration of compliance.” Public contributions to the issue in the past month have been the blogs How to stop touching our faces in the wake of the Coronavirus (5th March) and Covid-19: how do we encourage the right behaviours during an epidemic? (24th February). This general approach to ‘behavioural government’ – not least on how Government’s should frame messages to the population (hence the focus on scientificity, above) –  is spelt out in a 2019 report, Behavioural Government Using behavioural science to improve how governments make decisions. It will perhaps come as no surprise to learn that Dominic Cummings, the controversial Chief Adviser to the PM, is closely associated with what he refers to as the ‘behavioural and experimental economics’ initiative.


The deference-to-science approach may be a genuinely held commitment by PM Johnson and his Government. Or, it may be an abrogation of political responsibility, with more than an element of political back-covering. It is certainly, compared to approaches to managing coronavirus taken in other countries across the world, including our closest neighbours and our major European comparators, very much a leap of faith. Is it really based upon the best science, epidemiological and behavioural? Or is it an attempt to delay immediate measures which appear on balance more likely to provide social protection but which at the same time may do two things very quickly: expose the frailties of chronically underfunded national health, public health and public services infrastructures, all subjected to severe austerity cuts for over a decade; and bring grinding to a halt business-as-usual, risking further devastating effects to a stock market which on the same day as Johnson’s press conference had experienced its largest single loss since so-called Black Monday in 1987.

Amidst all the uncertainties associated with coronavirus, there is perhaps only one thing we can be sure about in terms of the Government’s approach to its control: only the test of time will judge its efficacy; and we will be the Guinea pigs.

The Poor Get Prison… Grenfell as a Site of Crime?

At HERC we publish blog articles covering a wide range of issues that broadly relate to harm, evidence, crime and justice. In keeping with the critical position of HERC, our aim is to highlight all sides of the debate and to facilitate a discussion so that all voices are heard on the issue.

In this article, Steve Tombs considers the differences in the treatment of powerful and less powerful groups by the criminal justice system since the fire at Grenfell Tower. Steve Tombs is Professor of Criminology at The Open University.

Justice after Grenfell?

Today, almost exactly two and a half years after the fire at Grenfell Tower which killed 72 people and irrevocably devastated the lives of hundreds if not thousands, the criminal justice system is nowhere near fulfilling its dominant promise – that it might deliver justice to the victims, bereaved and the wider affected community.

Yet talk of ‘crime’ and ‘justice’ had proliferated in the days and weeks following the Grenfell Tower atrocity.  For example, it did seem even in its very immediate aftermath that there was a prima facie case of corporate manslaughter in relation to the fire, as there very quickly emerged strong and mounting evidence of negligence, of cost-cutting, and of a string of warnings being dismissed and thus of a knowledge of risks at the very top of the Royal Borough of Kensington and Chelsea Council (RBKCC), the Kensington and Chelsea Tenants’ Management Organisation (KCTMO), and perhaps also implicating some of the private contractors involved in refurbishment and maintenance.

Indeed, in July 2017, weeks after the atrocity, the Metropolitan police sent a letter to residents saying:

After an initial assessment of that information, the officer leading the investigation has today notified Royal Borough of Kensington and Chelsea and the Kensington and Chelsea Tenant Management Organisation that there are reasonable grounds to suspect that each organisation may have committed the offence of corporate manslaughter, under the Corporate Manslaughter and Corporate Homicide Act 2007.

This announcement did not exclude possible charges against the main contractor, Rydon, and some 60 companies who had played significant roles working on Grenfell over the years. Indeed, by September 2017, the criminal investigation had identified 336 companies and organisations linked to the construction, refurbishment and management of the tower.  At that point, charges of gross negligence manslaughter against individuals were also said to be a possibility. Then, in June 2019, on the eve of the second anniversary of the atrocity, the Met stated that 13 people had been interviewed under caution in relation to “individual gross negligence manslaughter offences, corporate manslaughter offences and health and safety offences committed by organisations and individuals.”

Image courtesy of Gerry Popplestone (Creative Commons)

The Long Haul towards Prosecuting the Powerful?

At that point, in June 2019, the Met’s criminal investigation had already gathered 45 million documents in digital form as well as 14,500 physical exhibits. Perhaps unsurprisingly, then, the Met have warned that any charges will not be determined  until at least 2021. Personally, I would be amazed if any corporate or individual manslaughter charges would be laid as soon as that; past experience tells us to expect such charges to emerge later. Of course, past experience also tells us that in the vast majority of cases where such charges may be laid, they are not – or, where they are, prove to be unsuccessful, such are the inabilities of criminal law to deal effectively with large corporate bodies or the powerful individuals who occupy senior positions within them.

Finally, it should be acknowledged that, also in June 2019, US lawyers representing some of the Grenfell survivors and bereaved filed a class action in Philadelphia under product liability law. The civil suit names three US based companies: Arconic and Celtotex, who between them manufactured and supplied the cladding which had been disastrously fitted to the exterior of the tower in 2016, during its refurbishment prior to the fire; and Whirlpool, the manufacturer of the plastic-backed fridge-freezer which was believed the likely trigger for the fire. Indeed, despite the company’s unsupported and frankly egregious evidence to Phase 1 of the Inquiry that it believed a lit cigarette had mysteriously entered the window of the fourth floor flat to start the fire, the report on  Phase 1 of the Inquiry has concluded that, “Although some questions remain unanswered, the evidence, viewed as a whole, leaves me in no doubt that the fire originated in the large fridge-freezer”. Within months of the civil case being announced and with disgusting irony, it was calculated that one of the companies, Arconic, had already spent “£30m on lawyers and advisers defending its role in the disaster in an outlay that dwarfs the amount spent on the panels a public inquiry has determined were the main cause of fire spread”. At the time the lawsuit was opened, it was reported that “the legal process is expected to take several years”.

Image courtesy of Justice4Grenfell

Convicting the Poor

Yet it is not the case that all parts of the criminal justice system have been so slow to crank into decisively punitive action. In fact, it was within a couple of weeks of the fire that the first conviction related to it was recorded – Omega Mwaikambo had inexplicably posted photos of a Grenfell victim on social media, and was jailed for 12 weeks. This was the first of a steady stream of Grenfell-related convictions which, at the time of writing, total 22 successful prosecutions involving 21 separate defendants.

It is worth looking in a bit more detail at these cases, cases which have proceeded virtually entirely below the radar of any public or academic scrutiny (the latter with one notable exception). Almost all were forms of fraud – effectively, people securing being housed in  emergency accommodation and/or receiving financial assistance on the basis of falsely claiming that they had been resident in the tower at the time of the fire. The sums of money at issue in the frauds – for accommodation, food, travel and other emergency costs – are reported as ranging from a few thousand pounds to a couple who claimed up to £125,000. All received custodial sentences, ranging from 18 months to six years – sentences which, taken together, totalled in excess of 70 years jail time.

Most of those convicted fit a pattern: they are poor, marginalised individuals,  overwhelmingly non-white, many of whom were born outside the UK – places of birth appearing in media reports include Bangladesh, Grenada, the Ivory Coast, Jamaica, Portugal, Tunisia, the United Arab Emirates, Vietnam and Zimbabwe.  They are also often referred to in the media reporting of the cases as “unemployed”, “squatters”, “homeless”, and, most pejoratively of all, as “illegal immigrants”.  

There are exceptions. One of those convicted for fraud was quite different to other defendants – Jenny McDonagh had been a finance manager at the RBKCC, in which capacity she stole nearly £62,000 in pre-paid credit cards intended for victims. She was tried for this and a previous offence – she’d stolen £35,000 from the NHS in her previous job – and was sentenced to five-and-a-half years for these two offences in September 2018.

There were also three people convicted for non-fraud offences, including Omega Mwaikambo (above). The second, Reiss Morris, has been convicted for two separate offences. First, Morris, bereaved by the fire and a local campaigner in relation to it, was attending a vigil to mark 100 days since the fire when he threatened the deputy leader of Kensington and Chelsea Council; in October 2017, he was convicted for using threatening words or behaviour with intent to cause fear of or provoke unlawful violence, receiving a 12-month community order involving 100 hours unpaid work, ordered not to contact Cllr Taylor-Smith for a year, and to pay him £100 compensation, as well as £85 costs. Then, in May 2019, he was jailed for 8 weeks having threatened a firefighter, putting his hands around his neck . Fellow campaigners failed in their attempt to have him released to mark the second anniversary of the fire on 14 June, 2019. The only other non-fraud conviction was of Eamon Zada. In March 2018, police searching the burnt out tower block had found cannabis cuttings, butane gas canisters and an oven in his flat, reported as a ‘cannabis oil factory’ in the media. Zada received a 12 week prison sentence suspended for 18 months, was forced to do 200 hours unpaid work, 40 days of rehabilitation activity, and had to pay a £115 victim surcharge and £85 costs.

‘Crime’, Power and the Capitalist State

Image courtesy of Steve Tombs

Let us enter some caveats to this rather bald analysis of the different speed and intensity with which the criminal justice system has moved against the relatively powerless compared to the powerful in the wake of the Grenfell Tower fire. It certainly isthe case that potential manslaughter and other charges that might be levelled at the powerful may be complex and require significant evidence trawling and “Grenfell would represent, by a very large margin, the biggest and most complex corporate manslaughter case ever brought in the UK”. So it remains that these investigations may ultimately lead to prosecutions, even convictions, even if the history of such cases hardly gives cause for optimism. So, too, while defrauding funds collected for Grenfell victims might appear to be particularly deplorable, and none of this is to excuse this fraud, there is hardly a moral equivalence between the dispossessed – those consistently at the sharp end of state violence and coercion – seeking to secure somewhere to live or cash for food when compared with the life and death decision made by the richest council in England seeking to make what for them was a tiny saving in switching from less to more flammable cladding. Thesepoints made, the rapidity and punitiveness with which the criminal justice system has targeted marginalised offenders in the wake of the atrocity also provide a crucial context for understanding why the fire happened where and when it did in the first place.

Thus, as Davis and Moore put it in their analysis of three post-Grenfell convictions, 

Although criminal justice may claim to be blind it appears to have no trouble differentiating between the powerful and powerless. Since Grenfell it has done what it is good at – disciplining the poor. The cases described have been directed at working class people of colour. All cases have received swift ‘justice’. Determining guilt has been easy, the sentences harsh and those identified as ‘criminals’ publicly shamed.

Nineteen further convictions later, that observation can be underscored significantly. As the oft-quoted saying goes, criminal laws are like spiders’ webs: “They’ll restrain anyone weak and insignificant who gets caught in them, but they’ll be torn to shreds by people with power and wealth”. In many respects, this observation is the very essence of critical criminology. It is the obviousness which explains how the rich get richer and the poor get prison. It reveals the role of the criminal justice system, with the prison at its centre, one highlighted by abolitionists from Mathiesen to Sim as a capitalist stateinstitution which serves to punish, discipline and control, sometimes to the point of death, those deemed and cast aside as ‘unproductives’. But like everything else that is obvious, it bears recalling, repeating and documenting. It is a truism of a society characterised by searing levels of inequality that could not be illustrated more glaringly than in the state’s legal responses to Grenfell.

This blog was originally posted by Liverpool John Moores University’s Centre for Crime, Criminalisation and Social Exclusion on 6 December at:

OU’s Legal Eagles on Prison Radio

At HERC we publish blog articles covering a wide range of issues that broadly relate to harm, evidence, crime and justice. In keeping with the critical position of HERC, our aim is to highlight all sides of the debate and to facilitate a discussion so that all voices are heard on the issue.

In this article, Hugh McFaul discusses the Open Justice radio project Legal Eagles. Hugh McFaul is Director of the Open Justice Centre and Senior Lecturer in The Open University Law School.

In ‘Beyond the Gates’ Steve Tombs and Zoe Walkington highlight the important role The OU has played in opening up educational opportunities to students in prison. Of course, this longstanding commitment to providing access to higher education goes to the heart of the OU’s founding ideals of being open to people, places, methods and ideas. However, it also provides a great foundation to develop innovative ways in which OU students studying inside and outside prison can work together. An innovative example of this is the Open Justice Prison Radio Project Legal Eagles which features on this week’s Radio 4 Law in Action programme.

Hugh McFaul, Open Justice Centre and Sarah Couling, OU law student outside HMP Altcourse with BBC Radio 4 journalist Joshua Rozenberg after recording for Law in Action.

The project was established by the Open Justice Centre  in 2017 and brings OU law students into HMP Altcourse to work with prisoners to promote public legal education. Students travel to the prison in north Liverpool to agree legal topics that will be dealt with in a special Legal Eagles broadcast on the HMP Altcourse radio station. The production of the programme is a collaborative effort, with OU law students leading on researching answers to the prisoners’ legal questions and the prison radio team using their skills on the production of the broadcast. Participants in the project feature in the Law in Action programme which gives an important insight into the strength of the relationship between The OU and educators working in prisons.

Legal Eagles is one of several Open Justice prison projects which aim to provide opportunities for learners based inside and outside prison to collaborate on public legal education projects. We have been working with the St. Giles Trust since 2017 to provide support to prison-based peer advisors. The St Giles programme involves final year OU law students making up to four prison visits to work with groups of Peer Advisors, under the supervision of qualified lawyers, to identify and research areas of law that relevant and useful to the wider prison population.

Recent examples include:

  • In HMP Send, OU students developed a housing toolkit that included information about current housing legislation. This was a useful, practical and quality resource package that the Peer Advisors use to provide specific and in-depth housing advice to other prisoners. Prisoners do not have access to the Internet so a toolkit like this is especially useful.
  • In HMP Cardiff, the topic chosen by the Peer Advisors was family law, including issues around contact orders – This was particularly useful as many male prisoners are estranged from their families and need advice and support on how to re-connect on their release.
  • In HMP High Down, the project concentrated on producing resources that enabled the Peer Advisors to give advice on IPP sentences, licence conditions and the parole process, all areas of advice very much in demand in that prison.
The Open Justice Centre’s partnership work with the St Giles Trust has been shortlisted for a national pro bono award.

A key aspect of the success of the project has been the truly collaborative nature of the work undertaken by OU students and the prison-based Peer Advisors:

The Open Justice students have given our Peer Advisors in the prisons a real opportunity to develop, learn and become more professional but more than anything they have provided a forum where students and prisoners can meet as equals, learn from each other and discuss a whole range of relevant issues. The sessions I have observed have been the liveliest and most stimulating I have ever witnessed inside a prison.

(St. Giles project leader)

OU students have responded very well to the challenge of taking part in the project and have described the experience as transformative:

I didn’t anticipate, the effect that this journey that I was about to embark upon would have upon my life as both a law student and a person.  My fellow students, The Open University tutor, the inmates who we worked with and the staff at the prison, made this experience one that I will never forget, and the experience is a must for any law student.

(OU law student participant)

Programmes are planned in six prisons in England and Wales for Spring 2020 and, subject to funding, we plan to in the increase the number of prisons included in the project in 2021.

Beyond the Gates

At HERC we publish blog articles covering a wide range of issues that broadly relate to harm, evidence, crime and justice. In keeping with the critical position of HERC, our aim is to highlight all sides of the debate and to facilitate a discussion so that all voices are heard on the issue.

In this article, Steve Tombs and Zoe Walkington discuss the Open University’s role in delivering education to students in prison. Zoe Walkington is a Senior Lecturer in Psychology and Steve Tombs is a Professor of Criminology, both at The Open University.

The Open University is 50 years old this year, and as part of its celebrations we were keen to reflect upon and champion something that we feel has been a vital contribution of the Open University in its history – the education of students in prisons.

The OU first opened to 22 students in two prisons in 1971; and there are now close to 2,000 learners studying with the OU across 150-plus 150 prisons and some 50 Secure Hospital Units. Almost a third of these study on modules and programmes in the arts or social sciences.

While the OU is not now unique in providing education to students in prison, we are by far the largest provider in this context. This is something of which we are very proud. That is why we developed the idea for a film that would reflect the experiences of some of our students studying in prison. At the same time, Beyond the Gates raises awareness both of the obstacles faced by those studying in a prison environment and about the issues we, as a university, face in trying to provide prisoner education within the current political context.

The Virtual Campus is a secure intranet system which has been developed for use in prisons

OU students in prison are also great testimony to the benefits of learning together. In the film, we capture the voices of some of our Associate Lecturers, many of whom find the experience of working with students in prisons to be both moving and humbling. The film also captures the vital work of the OU Students in Secure Environment (SiSE) programme. SiSE works proactively with students in prison, to widen participation to all areas of our curriculum, and to try and provide the same learning experience for students in prison as for those ‘on the outside’. We’re proud to work in an institution that is open to some of the most marginalised learners in our communities, confined in places that are perhaps at best boring and monotonous, at worst degrading, violent and inhumane. Studying can, we hear in the film, take a student’s mind, for a while, metaphorically ‘beyond the gates.’ And the benefits of that study are something from which the student can benefit when they are, quite literally, beyond the gates, walking free, with choices to make and fulfilling lives to lead.

CSI: current research into the impact of bias on crime scene forensics is limited – but psychologists can help

At HERC we publish blog articles covering a wide range of issues that broadly relate to harm, evidence, crime and justice. In keeping with the critical position of HERC, our aim is to highlight all sides of the debate and to facilitate a discussion so that all voices are heard on the issue.

In this article, Lee John Curley and James Munro discuss the role of bias in crime scene forensics. Lee John Curley is a lecturer in Psychology at The Open University and James Munro is a Psychology Researcher at Edinburgh Napier University.

When a jury decides the fate of a person, they do so based on the evidence presented to them in the courtroom. Evidence obtained from forensic analysis, such as DNA analysis, is often interpreted as strong evidence by jurors.

This perception of forensic evidence is enhanced by popular TV shows like CSI: Crime Scene Investigation, where physical evidence is used to solve murders in a “whodunit” showdown between deductive cops and crafty criminals covering their tracks. All it takes is the right evidence to piece the story together.

But recent research suggests that the reality of forensic analysis is that it can be subjective and fallible. For instance, forensic evidence can sometimes be ambiguous because of factors such as the presence of DNA on samples that originates from more than one person.

When forensic evidence is ambiguous, contextual information (such as knowledge of a confession) may influence how forensic examiners evaluate the evidence. This distortion in their evaluation is called contextual bias and has been stated to be a reason why miscarriages of justice occur.

Our research agrees with this recent research that contextual information may influence the decisions of forensic examiners. But this may not necessarily be a bad thing. We believe it is premature to remove context from forensic analysis. Contextual bias on the part of a forensic examiner does not necessarily mean that errors will be made.

It is difficult for psychologists in the UK to make recommendations about the effects of context on forensic examiners because the research to date has been fairly limited, particularly in the the way it has been conducted.

For example, some studies had a very small sample size. Some lacked a control group. In others, accuracy was not measured. This means that the researchers could not know for certain if participants would have performed differently if no contextual information had been available to them. So it has been difficult to generalise about the effects of contextual bias on forensic examiners’ decisions.

Bias does not equal error

But our study presents the idea that contextual information does not necessarily always lead to inaccurate decision making.

First, forensic evidence will be generated from both the crime scene and the suspect, meaning that the fingerprints left at a crime scene are more likely than not to match the fingerprints of the suspect. For this reason, contextual information (such as knowledge of a confession) that biases forensic examiners towards finding a match may lead to more accurate decisions being made.

Contextual information may also inform the examiner which tests to conduct. If the examiner knows which questions they must answer, then they may avoid worthless tests. But this also means they may overlook something. For example, one piece of research cited a rape-homicide case. In this case, a forensic laboratory was told by detectives to only analyse the evidence for semen samples. This meant that the forensic examiners missed blood samples that turned out to be integral to the case.

Based on this example, researchers stated that contextual ignorance may have more of a negative effect on forensic decisions than contextual bias. This view is supported by psychological studies which have shown that biased decision processes can lead to accurate decision outcomes.

Impact on jury decisions

Despite the potential positive effects, it may remain ethically and legally inappropriate for forensic examiners to use contextual information. For instance, jurors may interpret the different types of evidence, such as a confession and forensic evidence, as being independent of one another.

But if contextual information such as a confession aids the interpretation of forensic evidence, jurors may incorrectly think that each piece of evidence independently supports the other when this is not actually the case. This means that jurors could be overestimating the chances of a defendant being guilty.

Our review suggests that concerns relating to the study of contextual bias in forensic examiners – small sample size, no accuracy measure and failure to use a control group – makes it difficult for implications and recommendations to be drawn.

We suggest that future research employs the skills of both forensic examiners and cognitive psychologists. Then that both skill sets can be used to create realistic experiments. Examiners have the necessary knowledge of both lab environments and forensic evidence, but we believe that access to this knowledge will help psychologists design more rigorous experiments targeted towards the study of contextual bias in forensic examiners. Only then will we discover can proper conclusions be drawn about whether contextual bias is a help or a hindrance.

This article was originally published by The Conversation on the 29th of October 2019, at:

Illicit drug markets and the exploitation and criminalisation of young people

At HERC we publish blog articles covering a wide range of issues that broadly relate to harm, evidence, crime and justice. In keeping with the critical position of HERC, our aim is to highlight all sides of the debate and to facilitate a discussion so that all voices are heard on the issue.

In this blog post, Dr Keir Irwin-Rogers discusses the harms of prohibitionist drug policies. Keir Irwin-Rogers is a lecturer in Criminology at The Open University. 

For the past five years, much of my work has focused on the harms associated with prohibitionist drug policies. In short, my concern is that our current prohibitionist approach results in far too many young people being violently victimised and criminalised as a result of their involvement in illicit drug markets.

In 2018 alone, 6,383 young people between the ages of 10 and 24 were cautioned or proceeded against in court for the production, supply and possession with intent to supply Class A, B and C drugs. While we lack sufficient data to make precise estimates of the amount of serious violence directly or indirectly linked to illicit drug markets, research suggests that street level drug dealing is playing a central role in the recent rise in knife crime.

Based on a six-month period examining content uploaded by young people to five major social media platforms, supported by interviews and focus groups with young people and a range of adult professionals, I sought to address some key questions around young people’s involvement in illicit drug markets: for example, why do young people become involved in drug distribution, and to what extent is their involvement predicated on adults’ use of threats and coercion?

Tracking the accounts of dozens of young people who self-identified as ‘gang involved’, I collated a database of hundreds of photos and videos uploaded to social media platforms in which the account users created content that displayed the fast money and the luxury consumer status symbols they had acquired through their involvement in drug distribution (see Figure 1).

Figure 1: Consumer status symbols and money associated with involvement in illicit drug markets

A number of high-profile commentators, including MP Ann Coffey, have sought to highlight the role of threats and physical violence in forcing young people to participate in illicit drug markets, particularly concerning the phenomenon of county lines. While the data I collected also revealed cases involving shocking levels of violence and physical coercion, in many cases the presence of violence and coercion was unnecessary.

Indeed, the idea that adults are primarily dependent on strong-arming young people into drug distribution was refuted not only by the content on social media, but by young people’s accounts in interviews and focus groups, which highlighted that the combination of status, respect, excitement and fast money associated with drug dealing was more than adequate in ensuring a constant flow of young people into street-level drug distribution.

The narrative suggesting a pivotal role for threats and physical coercion is prone to underplaying a range of structural factors that create the conditions in which it is relatively easy for adults to attract young people into drug distribution, without needing to resort to intimidation and violence.

For example, in London alone, there are over 700,000 children growing up in poverty. Alongside these high rates of child poverty, we have concerning rates of school exclusions: in 2016-17, 7,720 pupils were permanently excluded from mainstream schools, with an additional 381,865 were subject to fixed-term exclusions.

With rates of child poverty and educational exclusion at these levels (in addition to a range of other structural challenges that blight the lives of many children), it is naïve to think we can stem the continual stream of young people into illicit drug markets by cracking down on violent and coercive gang leaders.

I often hear people arguing that another means of keeping young people away from drug dealing is to provide those involved, or ‘at-risk’, with wrap-around support – in fact, a few years ago I conducted research for a social business that was engaged directly in this line of work. Most of the time this work is incredibly resource-intensive and ultimately unsuccessful – youth workers will readily concede that the pull factors are just too great to contend with – but admittedly, sometimes a young person will be supported out of drug dealing and into a job or further education; of course, this is fantastic news for that particular young person.

We invariably ignore, however, the fact that the gap left by the young person we have just helped will almost immediately be filled by another – most likely one of the tens of thousands of young people growing up in poverty and excluded from mainstream education. In short, there is an ample supply of young people ready to become involved in street level drug distribution with only a small nudge needed from someone already involved.

Although motivated by good intentions, these care and support tactics are fundamentally flawed from the outset. If I’m being cynical, however, they do provide a continual stream of funding for public and third sector organisations, which pays the salaries of those purportedly involved in solving the problem. Similarly, the police receive huge sums of money to supposedly tackle the drug trade. Yet, despite billions of pounds of taxpayers’ money being spent on suppression and enforcement in recent decades, the size of the illicit drugs market has continued to grow (and is projected to grow in future years).

Like it or not – and many people don’t – the only feasible way of preventing young people being drawn into street-level drug distribution – and consequently of reducing the criminalization and violent victimization of thousands of young people every year – is to legalise and regulate the drug markets.

While a £5-6 billion illicit drug market continues to exist in the UK, neither an increase in the severity of criminal justice enforcement, nor enhanced levels of care and support, will prevent the flow of vulnerable young people into street level drug distribution. Pretending otherwise will prolong the suffering and misery of those embroiled in the toxic trap of illicit drug markets, vast inequalities, and a rampant culture of hyper-competitive consumer capitalism – a trap which I discuss in more detail in a forthcoming article in Critical Criminology.

This blog was originally posted as a Centre for Crime and Justice Studies Comment on 8 October 2019.