Britain’s dark history of criminalising homeless people in public spaces

Victoria Cooper and Daniel McCulloch, The Open University

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Image source: özge çağla aktaş/Flickr, CC BY-NC-ND

 

Since the onset of austerity in 2010, the estimated number of people sleeping rough in England has more than doubled, from 1,768 in 2010, to 4,134 in 2016. As the number of homeless people increases, while support services and hostels are diminishing, rough sleepers are becoming ever more visible in British cities.

But rather than finding ways to accommodate the homeless, the UK government has sought to criminalise them. From archaic vagrancy laws, to the more recent Public Spaces Protection Orders (PSPOs), governments have been passing new laws and reviving old ones which result in the punishment of people with no fixed abode.

People without access to land or property are denied the freedom to roam, sit, eat, wash or sleep in public spaces. Or, where local authorities do lawfully permit street homeless people to access and use public spaces (for homeless camps, homeless shelters or day centres), these sites are routinely monitored by criminal justice agencies, bringing the homeless under direct surveillance and control.

Modern day vagrants

The criminalisation of the homeless can be traced back to 1824 and beyond, when vagrancy laws were implemented to control the spread of “urban poverty” at the height of the industrial revolution. During this time, land privatisation was being rolled out on a mass scale, and hundreds of thousands of people who lacked the means to purchase property were displaced from their homes and prohibited from accessing the land they once lived on.

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Sleeping outlawed. Image source: Tyne & Wear Archives & Museums/Flickr, CC BY

 

Vagrancy laws criminalised access to land in cases where there was no contractual relationship, which gave police the power to arrest people who were not legally bound to property or land. These individuals were characterised as “incorrigible rogues” and “mobile anomalies” by the law, and punished with flogging, incarceration and even transportation to penal colonies such as Australia.

Fast forward almost two centuries, and these antiquated laws – and imperious attitudes – are still very much with us. In the period from 2006 to 2014, the number of court cases for “vagrancy-related offences” in England increased by 70% – from 1,510 prosecutions to 2,365. The most noteworthy cases involved three men who were very nearly prosecuted for taking food waste from a supermarket refuse bin, and an operation in Sussex involving undercover police, which led to the arrest of 60 rough sleepers for accepting money from the public.

Hostile streets

This is the work of successive governments. Civil orders introduced under Tony Blair to target “street-crime” effectively led to a clampdown on begging, which sanctioned homeless communities en masse. When the coalition government came to power in 2010, these civil orders were amended to give local authorities even greater powers over what people do in public spaces.

In particular, Public Spaces Protection Orders (PSPOs), brought in under the 2014 Anti-social Behaviour, Crime and Policing Act, allowed local authorities to enforce on-the-spot fines for certain activities. Predictably, local authorities are applying these new powers to target homeless people by sanctioning what they do in public spaces: street drinking, begging, camping in parks, defecating and urinating and in some cases even sleeping.

Not only do PSPOs criminalise the homeless, they also make these tactics appear as a local response to a perceived problem and avoids the exposure and opposition which national measures usually invoke. Yet PSPOs are not a local response: their use is widespread across England, and it’s increasing, with one in 10 local authorities now using PSPOs to criminalise homeless people.

To make matters worse, private owners of commercial land are boarding-up shop doorways, erecting spikes and using possession laws to forcibly remove the homeless from commercial spaces.

The fight for the right to exist

Yet there have been moments of resistance against these anti-homeless measures. Both campaigns by organisations such as Liberty, and individuals like the family who placed cushions over anti-homeless spikes in Manchester, are challenging the punitive measures adopted by local authorities. In some areas this has led to the successful withdrawal of PSPO proposals.

In austerity Britain, these movements are gathering momentum and stirring up indignation about the uneven distribution of wealth, property and land. Some resistance movements are even occupying empty properties to make space for homeless people and homeless communities themselves are documenting their own daily struggle as they fight for the right to exist in public spaces.

Homelessness itself is not yet a crime, but anti-homeless laws and strategies are restricting homeless people’s freedom, and turning everyday activities into punishable offences. Yet survival defines the daily lives of homeless people, and in the face of oppression they will find new ways to expose the violence and prejudice they encounter in the every day.

 

This article was originally published in The Conversation, at: https://theconversation.com/britains-dark-history-of-criminalising-homeless-people-in-public-spaces-74097

Learning lessons from the past: What the Government can do right now to do to radically reduce the prison population

 

David Scott, The Open University

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The prison system is now widely considered to be in crisis, with the most recent damning revelations coming from a BBC documentary about Sodexo run jail HMP Northumberland

Source: Chroniclelive.co.uk

 

Prison does not work. Prisons are antiquated institutions that are particularly ill-suited to dealing with people with complex social needs or in response to people who have perpetrated acts of violence.  More than half of adult prisoners are reconvicted within one year of release; there were record numbers of self-inflicted deaths in 2016; and there have been a spate of highly visible prison disturbances across the country in recent months.

 

These and other intractable problems – such drug taking, mental ill-health, demoralised staff, violence, fear, insecurity and difficulties in maintaining order / control – were all exposed in the BBC Panorama programme on HMP Northumberland earlier this week.

 

Reducing prison populations in the past

The Average Daily Prison population in England and Wales stands today at 85,000 people and this is more than double what it was in December 1992.  The current prison population is also an incredible eight times higher than that of the late 1930s.  In 1908 more than 200,000 people were sent to prison that year, largely for very short sentences.  The Average Daily Population was 22,029 that year.  Yet, by 1918 the Average Daily Population had more than halved to 9,196.

 

By the late 1930s the Average Daily Population had stabilised at around 11,000, significantly with less than 40,000 people sentenced to prison each year.  The Average Daily Population was to fall below 10,000 again shortly after the start of World War Two.

 

The prison population in England and Wales was dramatically cut through diversion schemes; genuine alternatives in place of prison sentences; the abolishment of imprisonment for debt; and by allowing time for fines to be paid by offenders.

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Lady Constance Lytton, a suffraggette, prisoner and sister in law of Liberal prime-minster

Source: npg.org.uk

 

The main reason the prison population collapsed, however, was because there was a political commitment to do so.  There was recognition among politicians that prisons were brutal institutions that did not work.  In the late nineteenth and early twentieth century a number of wealthy and influential people experienced imprisonment – suffragettes, prisoners of war, conscientious objectors to World War One, political prisoners and those imprisoned for their (homo)sexuality.

 

Rich and influential former prisoners, like the suffragette Lady Constance Lytton, who was sister in law to a former Liberal prime-minster, talked openly and wrote about the pain and unnecessary suffering generated by prisons.  As such a bad conscience about using prisons was created among the political elite.  Despite many changes in prison policy over the last 100 years, prisons remain in many ways the same today.

 

The current government agenda

The Conservative government will shortly release its new Prisons and Courts Bill.  It is set on the path of building five new ‘super-sized’ prisons and increasing capacity of the prison estate by 10,000 places over the coming years.

 

Yet, the historical and contemporary evidence overwhelmingly shows we cannot build our way out of the humanitarian disaster unfolding in our prisons on a daily basis.  What is required are policies, like those of 100 years ago, that can immediately reduce the prison population.

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HMP Berwyn under construction in 2016

Source: Wrexhamprison.com

 

Alternative policy proposals

The policy suggestions are simple but not easy.  A starting point would be to halt plans to build the five new mega-prisons.  There should be an immediate prison building moratorium.  A clear and unequivocal message should also be sent to the judiciary that in cases of relatively harmless offences or where the person who has broken the law has considerable vulnerabilities, that a prison sentences should, if at all possible, be avoided.

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The call for penal reductionism is sometimes referred to as “playing the get out of jail free card”

Source: pinterest.com

 

The age of criminal responsibility should be raised as soon as possible to 16 years and diversion schemes introduced which keep young people out of the criminal process.  Petty but persistent property offenders should be dealt with in their own community through schemes that help build a collective sense of safety and redress for the harm done, as well as fostering notions of respect and responsibility for all.

 

The vast majority of women prisoners have been sentenced for petty and non-violent offences and could be released through probation, home monitoring or amnesties.  Sentencers could also pilot the introduction of prison waiting lists for women offenders.

 

Residential therapeutic communities have been shown to work in addressing problematic behaviours and drug usage and could be expanded to help deal with the estimated 45,000 ‘problematic drug users’ in prison.  There should also be further priority given to diverting people with mental health problems from the criminal process.

 

Politicians and members of the public need to once again recognise that prisons are places of intense pain, harm and suffering.  Rather than defending the size of current prison populations, our high ranking politicians and members of the judiciary should profoundly regret the existence of the prison at all.

 

Public education, informed rational debates and deep-seated reflections on exactly what the prison is and what it does to people, are urgently required.  Perhaps then, calls for a radical reduction in prison population will be warmly welcomed.

Prison deaths: a case of corporate manslaughter?

Steve Tombs, The Open University

 

Attention has finally fallen on the crisis of safety in British prisons. It shouldn’t be a surprise to anyone. Some argue that prison has always inherently been, and remains, a place of degradation which is systematically generating suffering and death. A place where the victims are overwhelmingly prisoners – a fact that might be obscured by the loud voices of the Prison Officers’ Association.

On the other hand, there is something peculiar in this present crisis. It feels like a perfect storm of rising prisoner numbers, cuts in staffing, widespread demoralisation among prisoners and staff, all combining to deliver evidence of a record year for killing and self-inflicted deaths.

In this context, but specifically following the news of the fatal stabbing of Jamal Mahmoud at HMP Pentonville in November 2016, Emily Thornberry, the local MP, called for an investigation into whether an appropriate “duty of care” had been extended to the deceased during his time at the jail. Indeed, one commentator noted that Mahmoud’s death had come “as little surprise given the substantial rise in violence at the troubled local prison over recent years”, violence which had been documented in “report after report”.

Caught in the Act

Such a call seems appropriate and timely. In 2011, the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHAct) was extended to the prison service, so that a prison itself, through the actions or inactions of its senior management, can be held to account for deaths within its walls.

A prosecution under the Act requires a failure in the way in which the organisation is managed or organised which amounts to a gross breach of its duty of care. This in turn requires evidence that the failure fell “far below what can reasonably be expected”. That may include consideration of the “attitudes, policies, and systems of accepted practices” of the organisation, while a substantial element of the failure must be at senior management level.

Now there is no doubt that the Act was introduced ostensibly and primarily to deal with the failure of common law manslaughter to hold large, complex, profit-making companies to account for multiple fatality disasters. In this respect, it has hardly been a success. Thus, at the time of writing, over eight years after the CMCHAct came into force, there have been 19 successful prosecutions under the Act – none, arguably, against a company of the size and complexity that could not have been prosecuted under the pre-existing common law.

But is there a case for testing the Act in the context of deaths in prison? I would argue that there is, on at least two counts.

Sharp practice? Alex G./Flickr, CC BY-NC-ND

Danger zone

First, prisons are especially dangerous places. According to HSE data released last month, fatal injuries (as opposed to fatal illnesses) to workers in 2015/16 totalled 144. Almost a third of these (43) occurred in construction, with the other most dangerous sectors being agriculture and manufacturing (each with 27 recorded fatalities). Notwithstanding the significant limitations of HSE data, such figures pale into comparison when compared with the numbers of killings and self-inflicted deaths in British jails.

In 2011, the year the Act was extended to cover prisons, there were 190 deaths in prison; this year, there have been over 300. All in all, since 2011, there has been a consistent, year-on-year increase in the numbers of such deaths, which total nearly 1,400 for the period. It seems almost inconceivable that none of these 1,400 deaths involved at least sufficient evidence for a prosecution to be taken under the CMCHAct.

Second, we know, and have long known, that it is precisely “attitudes, policies, and systems of accepted practices” which generate deaths and violence in prison. Just as we also know that some institutions are more poorly managed than others.

It is, sadly, also too easy to identify clusters of deaths in specific jails. For example, there have been 17 self-inflicted deaths at HMP Woodhill near Milton Keynes since 2013 – the latest, 41-year-old artist David Rayner, was found in his cell on August 25.

Bleak outcomes. sean hobson/Flickr, CC BY

Ignored recommendations

More generally, a constant stream of inquest findings, inspectorate, investigation and monitoring reports, and inquiries into prisons from Baroness Corston to Lord Harris, reveal consistent failings and are able to produce rigorous, evidence-based recommendations to protect the health and safety of prisoners and staff in British jails.

The vast majority of these have been systematically ignored. But the fact remains that this volume of evidence would strongly indicate that in the case of many deaths in prison, management was likely aware of risks to which they failed to respond, a key element of the senior management failure test under the law.

Many deaths in prison are the result of gross breaches in the duty of care through attitudes, policies and practices woven into the fabric of the prison service. The time is overdue for the CMCHAct to be tested there. This is not to imply that effective reform of prisons can come through the law. In fact, the best way to reduce prison violence is through an explicit policy decision to make prison the last resort of sentencing policy in an effort to massively reduce the prison population. It now stands at a near-record level of 85,000, and England and Wales have the highest imprisonment rate in Western Europe.

However, a successful prosecution under the Act would provide a powerful, symbolic message that the routine, systematic deaths of those to whom the state and the prison service has a duty of care cannot continue without legal accountability.

 

This article originally appeared in the Conversation on the 1st of December at: https://theconversation.com/prison-deaths-a-case-of-corporate-manslaughter-69729

 

Of Dangerous Nexuses and How to Survive in a Post-truth World

Giulia Zampini from the University of Greenwich presents thoughts on the Harm and Evidence Research Collaborative conference

 

The Harm and Evidence Research Collaborative (HERC) at the Open University organised a launch event on 9th November, 2016. The one day conference was free to attend, opening its doors to scholars across disciplines, students, third sector and campaigning organisations. As the name suggests, the aim of this collaborative is to establish cross disciplinary and cross field networks to investigate the harm and evidence nexus in relation to various aspects of the criminal justice system and beyond. Following the zemiology turn in criminology, replacing crime with harm is regarded as a useful way to shift the focus away from narrow definitions of crime and criminal justice towards broader engagement with the notion of harm in pursuit of social justice. In their own words,

HERC’s research can be summarised as “evidencing harm and harmful evidence” which encompasses a range of areas such as the use of evidence in the criminal justice system and the harmful practices of public and private institutions. The notion of harm is increasingly central to new initiatives in policy and practice. However, policy-makers and practitioners fail to regard their own institutional practices as harmful to health and wellbeing and fail to recognise that institutional neglect can severely impact on people’s life chances.[1]

Scholars and campaigning organisations alike hope that by ‘evidencing harm and exposing harmful evidence’ change should follow. In other words, there is an assumption that producing and exposing evidence of harmful institutionalised practices – ‘speaking truth to power’ – will eventually result in change for the better. In an ideal world, public institutions should be responsive, accountable and open to change. However, in reality, institutions are perceived as stubborn, neglectful, and blind to their own failings. Thus, state institutions are regarded as harmful, and not evidence-informed.

For someone who spent a great deal of time thinking about evidence, what it means to people, how it is constructed and how it is used, I am painfully aware of the manners in which it can be at once emancipatory and treacherous. If evidence is always granted an emancipatory role – if evidence is assumed to provide better, fairer, more neutral grounds for justifying claims in seeking change – then there is a risk that it becomes misleading. Though evidence is often portrayed in the evidence/policy nexus as the thing that will make policy fair and just, the reality is that there is a complex interplay between evidence and policy, and that evidence is neither neutral nor apolitical. Similarly, the relationship between evidence and harm should not be conceived as a linear one, but as a complex interplay; we must critically engage with both sides. A key aspect of my own work has been to understand the ways in which evidence is (mis)understood and (mis)used by institutions whose putative role is the prevention of harm. More important, I question what can and should be done when we realise, as we increasingly are, that these institutions are responsible for causing the most harm?

Professor David Nutt, keynote speaker for the day, is a classic example of a scientist who has taken on the task of producing and using evidence as political ammunition to question an institutionalised truth that has caused immense harm, namely that ‘drugs are bad, therefore they should be criminalised’. His solution to address this simplistic logic was to compare harms, not only across a variety of legal and illegal substances, but also by comparing activities as mundane as horse-riding with illegal activities such as ecstasy consumption. When confronted about this comparative choice by a politician – for whom the thought of comparing a legal activity with an illegal one was unacceptable – a painful truth became clear: the idea that harm is not tied to the legal status of an activity is simply unthinkable. Indeed, the illegal-because-harmful nexus has been sustained for decades despite being misleading and dangerous. Harm must be understood as a much more complex, multifaceted and non-linear process. The intricate design and comprehensive nature of the harm index developed by David Nutt in collaboration with other scholars – motivated by his persistent efforts to shift the debate from criminality to harm – has gone somewhere to addressing this. This work has also gained Nutt the reputation of a maverick in political circles. And yet, he has attracted the attention of portions of the public, contributing to bring this debate outside policy and science.

The modern state and its institutions have continuously positioned themselves as protectors of their people from harm, so any evidence to the contrary (of which there is plenty; i.e. that the state and its institutions cause a great deal of harm) is seldom well received. It is often when people and communities are personally affected by harms perpetrated by institutions, as the case of justice4paps made clear, that they mobilise to attempt to change the culture and practices within them. And yet, as in the case of this campaign seeking justice by exposing police brutality, communities are routinely silenced and discouraged from pursuing change. In the end, the most harm is suffered by those who are institutionally and positionally weaker in society; the marginalised, the homeless, sex workers, LGBT communities, ethnic minorities, refugees and asylum seekers. These groups were at the very heart of the discussions throughout the day, as they embody the very contradictions that exist within a democratic state. That is, a state moved by the values of inclusion and universal rights but governed through social, economic and cultural hierarchies. This discrepancy lies at the very essence of our contemporary politics; something that was felt even more acutely on the particular day of the conference as we absorbed the news that the US had elected Donald Trump as its leader.

Narrative after narrative, paper after paper, it was clear that both institutions and majorities in the nation-state go through a process of ‘explaining away’ and re-legitimising every time they are questioned and critiqued. Focusing on symptoms rather than causes, never engaging with the systemic nature of the problem, and routinely shifting the burden of responsibility away from the system and toward the individual: these are favourite tactics, which also lie at the very foundation of the modern criminal justice system. Jo Phoenix’s contribution, highlighting the struggles of legitimation involving sexual deviants, was a timely reminder of the limitations of the sociology of deviance in accounting for what happened after decades of moral and political struggles: only those who could adapt to hetero/mononormativity were mainstreamed and welcomed into the licit and moral economy, leaving the ‘sluts’ and the ‘paedos’ stuck in the landscape of immorality and criminalisation.

During the panel on gendered and racialized harms, I was reminded once again that evidence is a double-edged sword. One of the panellists noted that the World Value Survey was used to evidence British tolerance in a radio debate, which reminded me of Trevor Phillips’ argument that Britain is the least racist country in Europe (because the levels of integration – measured by mixed parenting as main indicator – are higher than anywhere else). To use evidence in this way is extremely dangerous; it panders to the belief that we are on an exponentially growing curve of progress, and that things can only get better. The World Value Survey is an invaluable tool, but it remains a data set that needs to be carefully interpreted. It is paramount that we make clear the difference between data and evidence. Data never speaks for itself. Evidence is a construct; it is built from our interpretation of data. It is our responsibility to be open and honest about this process of interpretation and construction.

In an age where every statement from policy maker and pundit alike needs to be justified as evidence-based, or at least notionally evidence-informed, our transformative efforts need to be rooted in openness and engagement; we must not fall into the trap of hiding behind the false neutrality of evidence, or else we risk further polarising debates. If both we and our political opponents are making supposedly evidence-based claims, then how can anyone judge the validity of those claims with any level of confidence (particularly considering many people do not know how evidence is constructed in science)? Perhaps, it is not incidental that we are increasingly living in this ‘post-truth’ regime. The public is saturated with contradictory truth claims. The world of science is often too complex, pessimistic, and full of caveats and uncertainty to provide people with that (false sense of) protection the state offers.

Safety and security are among the cornerstones of the modern state. They served to justify its creation and its expansionary aims, and continue to be used to justify its existence, running concurrently and in opposition with democratic liberal values of inclusion and universal rights. This paradoxical state of inclusion/exclusion is what we currently find ourselves in at every level of political engagement, and with every group that challenges our sense of stability, security, and identity. Going further in our struggle for inclusion and universal rights, we must find strategies to address the divisiveness of current politics. Else, we run the risk of alienating and excluding people who will likely turn to the state and its rising populist leaders in search of protection and the very inclusion and rights we seek to obtain.

 

[1] http://www.open.ac.uk/researchcentres/herc/events/exploring-harm-and-evidence

This post was originally published on the University of Greenwich Law and Criminology Research blog at http://blogs.gre.ac.uk/lawandcrim/2016/11/22/88/

Disclaimer: The opinions expressed in this blog are the author’s own, and are not necessarily representative of the University of Greenwich or any of the organisations mentioned in this post.