Testing prisoners for psychoactive substances

Prisons and Courts Bill – in a Public Bill Committee at 2:45 pm on 29th March 2017.

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Question proposed, That the clause stand part of the Bill.

With this it will be convenient to discuss new clause 6—Testing prisoners blood following assault—

“Testing prisoners blood following assault

‘(1) The Prison Act 1952 is amended as follows.

(2) After section 16B insert—

0 “Power to test prisoners blood

‘(1) If an authorisation is in force for the prison, any prison officer may, at the prison, in accordance with prison rules, require any prisoner who is confined in the prison to provide a sample of blood for the purpose of investigating assaults including spitting and biting, carried out by the prisoner.

(2) If the authorisation so provides, the power conferred by subsection (1) above shall include power—

(a) to require a prisoner to provide a sample of urine, whether instead of or in addition to a sample of blood, and

(b) to require a prisoner to provide a sample of any other description specified in the authorisation, not being an intimate sample, whether instead of or in addition to a sample of blood, a sample of urine or both.

(3) In this section—

“authorisation” means an authorisation by the governor;

“intimate sample” has the same meaning as in Part V of the Police and Criminal Evidence Act 1984;

“prison officer” includes a prisoner custody officer within the meaning of Part IV of the Criminal Justice Act 1991;

“prison rules” means rules under section 47 of this Act”

(4) A person commits an offence if that person fails to comply with requests to provide samples under subsection (2).

(5) A person guilty of an offence falling within subsection (4) shall be liable on summary conviction to—

(a) imprisonment for a period not exceeding 51 weeks,

(b) a fine not exceeding level 5 on the standard scale, or

(c) both.””

This new clause to the Prison Act 1952 gives prison officers the power to require a blood sample where the prisoner is accused of certain assaults.

Photo of Holly Lynch Holly Lynch Labour, Halifax

It is a pleasure to serve under your chairmanship this afternoon, Mr Stringer, and I take this opportunity to put on record my thanks to the outstanding Library and Clerks, who have been incredibly helpful in assisting me in preparing the new clause. I support new clause 6. In the event that a prisoner spits at or bites a prison officer, the new clause would give the prison governor the power to request a blood sample from that prisoner. Refusal to provide a sample would become an offence in and of itself.

The new clause follows similar work that I have been doing with police officers and other emergency service workers, where spitting and biting have been on the rise as a means of assault. Not only is it a horrible act, but spitting blood and saliva at another human being can pose a very real risk of transmitting a range of infectious diseases, some with life-changing or even lethal consequences. Arina Koltsova, a law enforcement officer in the Ukraine, died just last year after contracting tuberculosis from an offender who spat at her while she was trying to arrest him. I have sought practical and proportionate ways to improve the situation for those who face such risks as part of their job.

Over the past 15 years there has been a steady but dramatic increase in the number of reported incidents of prison officers being spat at or bitten. In 2000, there were 35 recorded incidents of spitting. By 2015 this number had increased to 394. Over the same period biting went up from 89 incidents to 291. I want to share the stories of two police officers who were spat at: while I appreciate that the Bill deals exclusively with prison officers, I am trying to convey to the Committee the very human impact on our public servants, as well as their families. This is the same regardless of which public service is being provided.

PCs Mike Bruce and Alan O’Shea of West Midlands police both had blood and saliva spat in their faces while trying to arrest a violent offender. They both had to undergo antiviral treatments to reduce the risk of contracting communicable diseases, and they faced a six-month wait to find out whether the treatment had been successful. During that time, PC O’Shea was advised that he could not see his brother, who was undergoing cancer treatment, because the risk of passing on an infection was too high. He was also advised not to see his parents, as they were inevitably in regular contact with his brother. PC Bruce had a false positive result for hepatitis B, and for six months until conclusive test results came through, he was understandably reluctant to be close to his wife or young children, fearing for their wellbeing. His wife and children also had to be tested because of his false positive result.

While PCs Bruce and O’Shea are police officers, their harrowing experiences will be similar to those of prison officers up and down the country who are currently undergoing antiviral treatments, because, as it stands, they are powerless to seek clarity about the health of the prisoner at the time of the incident. At the moment, if a prison officer is spat at, they can take a blood sample from an individual only if that prisoner gives permission. Needless to say, the prisoner often deliberately seeks to prolong the distress and anxiety exerted on the officer for as long as possible by refusing to grant permission or provide a blood sample. This new clause would deny them the ability to torment a prison officer in this way and would restore the balance of power.

Let us bear in mind that any prisoner can spit. They do not need to go to the trouble of acquiring or fashioning an offensive weapon in order to inflict life-changing consequences on another person; they can simply use their own bodily fluids. Regardless of whether the spitter has a communicable disease or not, the inability to determine that at the time of the incident is leaving prison officers with no choice other than to undergo antiviral treatments and face an agonising six-month wait. I have checked with the Prison Officers Association, which confirms that a prison officer would be expected to be at work during that six-month wait and could be asked to return to their duties on the same wing as the individual who has spat at or bitten them. We could put a stop to that with this new clause and restore the appropriate balance of power, dignity and peace of mind to prison officers. Measures such as this are already being used in Australia to protect public sector workers, and it is worth mentioning at this point that this new clause is intended to complement new clause 5, which would create a stand-alone offence of assaulting a prison officer. We will have chance to debate the merits of that later in Committee.

I heard the words of the Minister this morning and I am satisfied that he accepts that retention of prison officers is a problem. However, while the Bill goes a long way towards giving governors more responsibility and increases the scrutiny upon them, I do not believe that it goes far enough in addressing the pressures that governors face in prisons. There is a real danger that the Bill will shift responsibility away from the Government and on to the governor, without giving them the resources to bring about the improvements that they want to deliver. This clause would be a cost-effective way of making prison officers that much safer, and I believe that that focus is missing from the Bill. It is intended to serve as a deterrent and would have a positive impact on safety, and therefore on the retention of prison officers and staff. I hope that Members will support this new clause.

Photo of Yasmin Qureshi Yasmin Qureshi Shadow Minister (Justice) 3:00 pm, 29th March 2017

The Opposition support my hon. Friend’s new clause. It is important that prison officers should be able to work in a safe environment and have the right to know if they are being exposed to any infectious diseases.

Before I sit down for the last time today, I want to make a brief observation about clause 22 and the proposal to simplify the legislation so that testing can be done for all drugs. Testing alone is not an adequate response to the problem of drugs and psychoactive substances in prisons. Although it is important, it can only be of limited value because not all prisoners can be tested regularly; far greater resources would have to be provided.

The Prison Reform Trust has said that testing can be partial, but must be intelligence-led. The Howard League states that,

“drug testing alone does little to reduce drug use in prisons. Recent HMIP reports have found that overcrowding and a shortage of officers mean that intelligence-led drug tests often do not take place.”

Testing must therefore be intelligence-led. Again, that requires greater resources than are available at present.

Photo of Sam Gyimah Sam Gyimah The Parliamentary Under-Secretary of State for Justice

I want to pay tribute to the incredible work that our prison officers and support staff do every day. They work in an incredibly challenging environment and do a very brave job indeed. The new clause highlights some of the more challenging circumstances that they face when an offender spits or bites a prison officer. I also want to put on the record now that I recognise the additional worry and stress that prison officers can face waiting, as the hon. Member for Halifax has mentioned, often for several months to discover whether, in addition to the assault they have suffered, they have contracted a transferable medical condition. I therefore welcome the debate that that raises. I know that the hon. Lady has raised this issue before in relation to assaults on emergency workers. The only concern, and why we will resist the new clause, is that, as currently drafted, I can see some legal and practical difficulties, which I will outline.

A detailed regime applicable to securing samples from prisoners already exists under the powers set out in a Prison Service instruction in the Prison Act 1952. The powers enable testing for illegal activity and testing for drugs either by randomised samples or where there is a suspicion of drug use. Section 16B of that Act provides a power to test for alcohol. Changes in clause 22 of the Bill extend testing powers to psychoactive substances. Testing can be voluntary or mandatory and is normally conducted by urine testing and other non-invasive testing methods.

It is not clear to me, however, where the main focus of the power in the new clause lies. Is it for the detection of crime—proving the assault—or is it to provide information quickly to the prison officer involved about the risk of a communicable disease? A testing power without specific safeguards does not serve to understand what the purpose of a test is.

Also, significant practical issues have to be considered. Under PACE, other than urine tests, all intimate samples, including blood samples, can be taken only by a registered medical practitioner or registered healthcare professional. A blood sample cannot be taken by a police officer under the PACE regime in a similar situation. Prison officers are simply not trained to take blood samples. They are not medical professionals, and the sterile medical conditions required are not always available in prisons.

I would also be concerned to avoid situations in which prison officers, owing to a lack of medical training and the absence of a provision requiring prisoner consent in taking blood samples, found themselves accused of assault.

We need to consider what impact the use of the power would have on the relationship between prisoners and prison officers, which is crucial to successful offender management. The safeguards on consent, testing processes and data protection are needed for practical and legal reasons. Without sufficiently circumscribed criteria giving rise to the power to take samples; without suitably qualified staff to take the samples; and without proper training of staff and fair and proportionate penalties for non-compliance, the power is unlikely to be compatible with article 8 rights, and the Government cannot support it.

Having said that, I want to make some additional points about what can be done now. As we set out in our “Prison Safety and Reform” White Paper, we are committed to improving the safety of prisons for all who live and work there. We do not tolerate any behaviour against staff that undermines their essential work. Staff must have the confidence that assaults against them will be met with a robust and swift response.

To that end, we are taking an evidence-led approach to improving prison safety. I have already mentioned the 2,500 staff in the new key worker regime that we are rolling out. I believe that increased numbers will also enable more staff to be available on wings, to increase staff confidence in the support that they have available from colleagues, and that they will also act as a deterrent to assaults by prisoners on staff.

Additional staff will also mean more predictable regimes, reducing prisoner frustrations and providing opportunities for purposeful engagement. We already have a well established process for sanctioning violence in prisons. A range of sanctions is available, from downgrading privileges, segregation and adjudications. Cases that are serious enough are heard by an independent adjudicator, who has the power to add up to another 42 days to a prisoner’s sentence.

Governors are also required by the published adjudications policy to refer more serious assaults to the police for investigation. It is worth stressing that an assault that involves biting may be charged as a more serious offence of assault occasioning actual bodily harm, rather than the lower level common assault, depending on the nature of the injuries sustained. Spitting and biting can also be considered as aggravating factors within the offence, meriting a more severe sentence. Any sentence imposed should also, in accordance with sentencing guidelines, be served consecutively to the existing sentence.

Finally, there are also some technical issues relating to the penalties for failing to comply with a test. I do not want to labour the points, but I think that the hon. Member for Halifax has raised some important matters in the debate and, as I said at the outset, I completely understand the thinking behind the new clause. I sympathise with the intention, but given the legal and practical difficulties in the drafting, we cannot support it at this point. I therefore urge the hon. Lady to withdraw the new clause.

Order. When we have exhausted the debate, we shall vote on clause 22. The vote on new clause 6, if there is one, will happen later in the proceedings.

Photo of Holly Lynch Holly Lynch Labour, Halifax

I thought that the Minister’s response was constructive, and I am grateful. I want to respond to some of the issues he raised; I hear his concern. The new clause is about an extension of the powers to test, which currently have a focus on drugs, and on identifying them in a prisoner’s system; however, there is a key gap with respect to identifying whether someone has a communicable disease.

As to the intention, I appreciate that the evidence in question could contribute to a case brought against a prisoner for biting or spitting at a prison officer; however, it is about establishing in a timely way whether a prison officer would need to embark on anti-viral treatment. That is our key focus. I entirely agree that prison officers would not be qualified to take blood samples from a prisoner and should not do it; what was done would need to involve NHS-qualified staff.

I understand the Minister’s points about shortcomings in the drafting of the new clause, but I am not entirely satisfied that the measures that he has outlined deal with the issue comprehensively enough; we shall therefore reflect on that before there is an opportunity to vote later in the proceedings.

Question put and agreed to.

Clause 22 accordingly ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Guy Opperman.)

Adjourned till Tuesday 18 April at half-past Four o’clock.