8 The Criminal Justice System

8.1 Many drug misusers come into contact with the criminal justice system through committing offences associated with possession of illegal drugs, or the financing of a drug habit. In our Part 1 report, we made a number of recommendations aimed at reducing the spread of HIV among drug misusers in prison. In this report, our interests range more widely to include the treatment of drug misusers who have HIV-disease by the police, the courts and the probation service. In this chapter we assess the response of the criminal justice system to HIV-disease and make recommendations as to how policy and practice should develop.

The Police Service

8.2 For most drug misusers, the initial, and most frequent subsequent point of contact with the criminal justice system is the police service. In many areas the police already play an important role in local inter-agency liaison through District Drug Advisory committees. In the light of HIV-disease, it is particularly important that every opportunity is taken to encourage drug misusers into contact with drug services. To this end we recommend that the police should refer drug misusers with whom they come into contact to local drug treatment services, whether or not they have been charged with a criminal offence.

8.3 The police are in the difficult position of dealing with alleged and actual offenders who may at any moment prove troublesome and whose HIV status will not usually be known. An assumption should therefore be made that any offender may be infected, and appropriate infection-control procedures observed in all cases. We have heard evidence that in some areas the police have been issued with over-elaborate protective clothing to deal with suspected seropositives, and that on arrest detainees have been given disposable clothing. Fortunately, as understanding of the nature of HIV-infection has increased, such practices have diminished. Not only are they unnecessary, but perhaps more importantly they are likely to deter offenders from admitting to drug misuse, and coming forward for help and advice.

8.4 With the continuing use of police cells for remand prisoners, the police are acting as custodians in ways which replicate the role of Prison Officers. The extent of this is such that many prisoners remanded from London courts are being held a considerable distance away. It is likely, therefore, that remand prisoners with HIV-disease may be held in areas where there has so far been little or no known incidence of HIV-disease and where police surgeons are unfamiliar with its manifestations, unlike their counterparts in London and parts of Scotland who have had to confront the problem at an earlier stage. All police surgeons should therefore make a conscious effort to look for indications of drug misuse, should be prepared to consider the full range of treatment options — including the prescribing of substitute drugs — as set out in the guidelines sent to all doctors in 1984, and must be fully briefed on how to address issues relating to HIV-disease.

Courts

8.5 The Advisory Council views with concern the steady rise in the numbers of drug misusers who are imprisoned. As long ago as 1979 it urged that drug misusers be remanded to treatment facilities rather than to custody where medical reports were required prior to sentencing. We therefore greatly welcome the proposals for non-custodial disposals for drug misusing offenders, combined with a variety of treatment programmes, which are made in the recent Green Paper, "Punishment, Custody and the Community" (Cm 424). Such schemes would have particular value for drug misusers with HIV-disease in terms of both preventing the spread of HIV-infection within prisons, and enabling such individuals to receive the medical and other care they require. We therefore recommend that in encouraging the greater use of existing noncustodial options, and in the development of any new options, it should be recognised that there is a particular value in such disposals for drug misusing offenders.

8.6 However, if these proposals are to be translated into practice, there will have to be substantial developments on several different fronts in addition to any changes in legislation that will be required.

8.7 All those concerned with law enforcement and sentencing will need to understand how few drug misusing offenders have been in contact with services, and why it is important to promote such contact. Above all, they will need up-to-date information on the availability and type of local services. However, even before any legislative changes are made, sentencers should be encouraged to make the most of existing non-custodial sentences for drug misusers.This will not come about automatically — the involvement and advice of the Lord Chief Justice, the Judicial Studies Board, the Home Office, and the Magistrates Association will be needed.

8.8 Second, those serving the court — probation officers and duty solicitors — will need good information about and liaison with local drug services if they are to make realistic and persuasive recommendations for remand or sentence. There may be value in each Probation Area nominating a senior Probation Officer to ensure that this information and liaison is forthcoming, as for example has happened to some extent in the West Midlands.

8.9 Third, many drug agencies have been reluctant in the past to accept clients under court orders. A change in attitude is needed so that services are willing to adopt an alternative-to-custody role. This will apply not only to rehabilitation services, as in the past, but increasingly to community-based services too. The capacity of services to fulfil this function will have to be increased as will their ability to undertake court work such as appearing on behalf of their clients. The time-consuming nature of this work should not be underestimated; neither should the difficulty of combining any perceived "punishment" role with a treatment and rehabilitation role. However, the Lifeline induction programme in Manchester has for many years successfully worked closely with drug misusing offenders and the Courts, to enable clients to be diverted from custody to helping agencies in appropriate circumstances. Agencies will be unable to provide this service without additional resources, so if drug misusers are to be diverted from custody to drug agencies then resources should be similarly diverted. Clearly the Home Office has some financial responsibility in this area to help drug services take on the responsibilities of assessment, representation in court and subsequent help for drug misusing offenders.

8.10 Fourth, drug misusers — many of whom are charged with non-drugs offences — must be more willing to identify themselves as such to sentencers. We have received evidence to indicate that where there is local confidence in the sentencing attitudes and practices of the court, drug misusers may be more ready to identify themselves.

8.11 The evidence we have received so far indicates that little or no thought is currently being applied to the specific question of whether the advent of HIV-disease should influence prosecution and sentencing practice for drug misusers, and if so how. There appears to be an unchallenged assumption that the presence of asymptomatic HIV-disease should make no difference to a person's sentence. In view of the potentially serious consequences of imprisoning people who are infected with HIV, we are disturbed that no policy is being actively formulated on this.

The Probation Service

8.12 The probation service is increasingly supervising drug misusers and, particularly in some city areas, is in touch with many with HIV-disease. Establishing links with other agencies is most important, especially those relating to housing, education and employment as well as specialist drug agencies. Probation officers have a key responsibility to try to ensure equitable access to community-based services for their clients, especially those drug misusers with HIV-disease who will often not be the most welcome of referrals.

8.13 Issues of confidentiality are complex in many aspects of probation officers' work. They include the question of sharing knowledge of HIV status with hostel wardens, landladies (including those offering supported lodgings), spouse, community service officers and community service beneficiaries. The general principle that the decision rests with the client should operate, but some of the detailed practicalities are being considered by a working party of the Association of Chief Officers of Probation.

8.14 In the Court setting, probation officers need to know where they stand in relation to mentioning HIV-status in a social inquiry report. If someone is sentenced to custody, a copy of the report goes to the Prison Department and may be seen by staff other than social or health care workers. If a defendant wishes to avoid the possibility of wider disclosure of HIV status within the criminal justice system it should not be mentioned in a social inquiry report. In one City court, a helpful practice has developed whereby HIV-status is made
known to Magistrates via a doctor's letter which is returned to the defendant.

The Prison Service

8.15 In both this report and our Part 1 report we have devoted considerable attention to the prison system, for a number of reasons. First, prisons contain large numbers of drug misusers, and can be said therefore to be major institutions in the care and management of drug misusers. Secondly, because of this large population who have misused drugs, they will contain a higher proportion of seropositive individuals than in the wider population. Thirdly, within the prison system there exists the potential for rapid spread of HIV-infection among inmates. We are very conscious that prison staff were one of the first groups in society forced to face up to the challenge of looking after people with HIV-disease. The close confines and heightened tension of penal institutions make the isues involved especially stark for both staff and inmates.

8.16 In Part 1 we welcomed the Prison Department's newly developed policy on the throughcare of drug misusers. Depending as it does on co-ordination between the Prison Medical Service and the Probation Service with outside agencies playing a part in the counselling and support of inmates, it mirrors in many ways the pattern we are recommending for the care of drug misusers with HIV-disease in the outside community. We therefore reiterate our welcome for this policy as being both opportune and appropriate to the care and management of drug misusing prisoners with HIV-disease. We recognise that its introduction came at a difficult time, coinciding as it did with the change in working practices introduced under the `Fresh Start' initiative. Nonetheless there are promising signs that it is getting underway. We hope that the Prison Department will ensure that momentum is maintained. But we must reiterate also that the successful implementation of this policy depends on enhanced training for prison medical officers and the probation service; and on improved access for non-statutory agencies.

The extent of Injecting Drug Misuse in Prisons

8.17 Recent surveys of injectors have found that between 7% and 17 % state that they have shared syringes in custody during the last twelve months. Any injecting equipment that is smuggled into prison is frequently re-used many tens — even hundreds — of times by many different people. Action is desperately needed to discourage inmates from this dangerous practice. Efforts are already being made to educate inmates about AIDS and drug misuse, which we fully support. But further to this, we believe that prison medical officers should consider whether a range of treatment options — including the prescription of substitute drugs such as oral methadone — could be utilised to reduce harmful behaviour within the prison setting.

Viral Infectivity Restrictions (VIR)

8.18 In the mid-1980s Prison Service Management recognised that AIDS in prisons was a problem that would have to be tackled. Prison officers understandably became anxious about contracting the disease. At that time, a lot less was known about how the virus was transmitted, so the extent to which prison staff were at risk from infection was not known. The Prison Medical Service responded in the way that seemed best at the time. In October 1985, it issued guidelines to institutions in England and Wales indicating the need to place all prisoners with HIV infection or AIDS under Viral Infectivity Restrictions (VIR). This was an extension of similar arrangements made for inmates infected with Hepatitis B. Interestingly, VIR was and is not considered necessary in Scottish prisons, possibly in part because Scottish prisons are less overcrowded than those in England, with shorter periods spent on remand.

8.19 The guidelines on VIR set out a range of restrictions which could be applied, at the discretion of the medical officer concerned, to inmates known to be HIV antibody positive. However, medical officers frequently interpreted this guidance as meaning that all the restrictions should be applied to all inmates on VIR. Prisoners on VIR were in effect isolated under the supervision of the prison medical staff, and excluded from PE, games, and any work which involved sharp implements or food preparation; in practice this often meant that no work was available. In September 1987 further guidance was issued which emphasised the clinical discretion of medical officers in the management of individual cases, particularly with regard to PE and games, although it made clear that prisoners identified as HIV carriers should be located in single cells or should share with other HIV antibody positive inmates.

8.20 The Prison Department advocates that prison inmates with HIV-disease should, wherever possible, be on an ordinary location and take part in ordinary regime activities. We entirely agree, believing that the continuation of VIR benefits neither inmates nor staff.

8.21 There are arguments against abandoning VIR, but we believe that they can all be countered. First, there is the concern that other prisoners will be at risk of infection if they are placed in cells with HIV positive people.
Against this:

—    their cellmate(s) may well be HIV positive but either not know it or have decided not to declare it;
—    there is a limit to which the Prison Department can protect one prisoner from another. If they have been given advice on safer sex and basic hygiene it can be argued that prisoners must ultimately be held responsible for any ill-advised behaviour;
—    if it is known that HIV positive prisoners are in the normal regime (as in reality some are anyway) then prisoners may relate to each other more responsibly than is the case with the false reassurance which VIR represents.

8.22 Secondly, it might be argued that other prisoners will be at risk of infection if HIV positive inmates participate in work and PE. However, restrictions on activities such as these are not needed because they are based upon an incorrect understanding of the nature of the virus. It must be stressed that the overwhelming epidemiological evidence is such that transmission of this virus only occurs sexually or by injection. If maintenance of morale among people with HIV-disease delays the onset of symptoms, then prisoners should clearly be allowed to participate in work and PE for their health's sake, unless there are underlying risks to others. Anxiety surrounds the possibility of accidents involving people with HIV disease. However, normal health and safety regulations should be applied in relation to body fluid spillages from all inmates.

8.23 Thirdly, there is an argument that non-medical staff are entitled to know which inmates are seropositive. The Prison Service in England and Wales takes the view that the maintenance of good management and high morale demands that certain staff, on a need to know basis, be entrusted with knowledge of inmates' HIV status. This is contrary to the Scottish position where it is generally accepted (in theory, occasionally the system breaks down in practice) that only medical and nursing staff need to know a prisoner's HIV status, and, with the occasional exception of the prison governor, no other staff should be told. We support the Scottish view.

8.24 Fourthly, escorting police officers may be told which prisoners are under VIR. However, escorting police officers are at no risk of infection unless there is a serious disturbance during the escort. In that event, as in those already mentioned, it will become increasingly unlikely that someone known to have HIV-disease will be the only one infected in a group, and police officers should assume that all inmates may be seropositive.

8.25 If the introduction of VIR was principally for the benefit of seropositive prisoners, that also may be seen as mistaken. The only positive feature of VIR for inmates with HIV disease is that they can provide mutual support as they are all in the same condition. However, it is equally possible that collective depression can be the result, particularly if restrictions are attached to participation in work, PE and games.

8.26 Another major disadvantage for HIV prisoners under VIR is their loss of confidentiality. In practice, while VIR does not necessarily imply HIV, this is the assumption that prison staff make. Confidentiality is a complex issue and the principles are discussed in detail in Chapter 3 (paragraphs 3.12 to 3.15).The number of non-medical staff likely to know an inmate's VIR status means that strict medical confidentiality within prisons, no easy matter anyway, does not therefore operate in practice. Clearly, inmates under VIR can feel stigmatised, and this provides another disincentive for drug misusers to identify themselves.

8.27 In historical terms the introduction of VIR is understandable; by 1988 it has become clear that a change of approach is needed. The long term continuation of VIR will become both impractical — as numbers of seropositive inmates increase — and undesirable. The World Health Organisation also holds this view. In its statement on AIDS and prisons it states that the isolation or segregation of seropositive prison inmates is neither necessary nor desirable.

8.28 With the benefit of improved knowledge of HIV disease, it can now be seen that if the introduction of VIR was principally to reassure prison staff that the problem was being properly managed, then it was based on a false assumption. Those inmates who both know and inform staff that they are HIV positive will be only a minority of those infected. Attempts to isolate them risks giving false reassurance both to staff and other prisoners who may therefore be less vigilant than is necessary in matters of hygiene. It is therefore very much in the interest of prison staff that the artificial distinctions created by VIR are not maintained. The only sensible approach in prison, as in the rest of society, is for everyone to relate to others on the assumption that they may be infected with the virus.

8.29 We recognise that VIR cannot be abolished overnight; both staff and inmates will require considerable explanation and reassurance about this change in policy. The training implications of this sensitive but vital change require serious consideration. We therefore recommend that the use of VIR for known seropositive inmates should be phased out gradually in conjunction with suitable education and reassurance to both prison staff and inmates about the risks of HIV-infection and how to avoid them.

Antibody testing

8.30 The question of whether or not to test for the virus is a particularly sensitive one in prison. In theory counselling leaves the decision to the prisoner, although we have heard evidence that some pre-test counselling in prisons has been inadequate. If VIR ends, the important principle that testing be voluntary and with informed consent may be more easily upheld. Regardless of whether or not inmates are tested, and whatever their known sero-status it is essential that they receive advice about reducing risky behaviour.

Inmates who become ill with HIV-disease

8.31 Once an inmate becomes ill with HIV-disease, he or she will require treatment in the prison hospital. It is a fundamental principle that people in prison hospitals should have access to the same level of care as people in other hospitals. Prison hospitals should be in a position to offer a whole range of services for drug misusers with HIV-disease, including zidovudine and the prescription of substitute controlled drugs. However some of the opportunistic infections that can strike people with HIV-disease are insidious and easily pass unnoticed in their early stages. Prison medical staff will be seeing an increasing number of people with symptoms, so it is important that they have access to specialist advice. Links should be forged with local hospital physicians who have experience of treating HIV-disease. It is vital that good medical records are maintained so that in the event of the individual being transferred to an NHS hospital, or another institution, suitable on-going care can be provided.

8.32 There will be phases between episodes of illness when inmates are well, and may be transferred from the prison hospital back into the normal regime. A decision on an inmate's suitability for transfer should be the responsibility of the Prison Medical Officer. Confidentiality should be maintained as far as possible. At all times, Prison Medical staff should ensure that medical records are only seen by Medical and Nursing staff.

8.33 We have heard that inmates taken to NHS hospitals for specialist examinations are frequently chaperoned to the extent of being deprived the privacy of a confidential examination. Unless a prisoner is considered to be very dangerous, s/he should be allowed to speak to, and be examined by, hospital physicians in complete confidence.

8.34 When a prisoner with HIV disease becomes seriously ill then, as with other serious illnesses, transfer out to an NHS hospital or early release to family or friends are considered. We welcome the statement made recently by the Director of the Prison Medical Service for England/Wales, that no person should die of AIDS in prison.

Release from Prison

8.35 An ex-drug user with HIV-disease can be vulnerable on release from prison. S/he may have no contact with any service, friends or family, nor any strong attachment to a locality. Even if abstinent whilst in prison, there may be a strong desire to start using drugs again as soon as possible. Counselling on risk-reduction and on maintaining health may be of particular importance at this time. It may be only on release from prison that the full implications of living with HIV-disease are realised.

8.37 It is vital that the release of inmates with HIV-disease is well prepared. In prisons where the new policy of throughcare for drug misusers is operating effectively, the necessary links with outside agencies will have been established to ensure a continuity of care and support on release. Whether or not the policy is in place, we recommend that the Prison Medical Officer ensures that an inmate with HIV-disease is referred to both primary and specialist medical care on release. The probation service together with any outside agency which has been involved with the inmate's support in custody, should ensure his referral to those community services which will cater for his accommodation and other needs. Probation officers should explain to prison inmates which services might help them, and how, and offer to make introductions. It may be helpful to bring in a specialist counsellor shortly before release, to address any anxieties or information needs that an inmate may have. Contact at this stage with a specialist drug service may also be valuable. This will require an understanding of both drug misuse and HIV-disease, and a good up-to-date knowledge of services which can offer help.

8.38 Ideally, probation officers would provide this service for all drug misusers leaving prison, since many will be seropositive without knowing it so should receive advice on drug problems and reducing risky behaviour. Where positive serostatus is known, need for health monitoring and advice and psychological support should be addressed. If an inmate is actually ill, the Prison Medical Service should ensure that responsibility for medical care is transferred to a suitably experienced doctor.

Conclusion

8.39 HIV-disease brings to light many complex issues for the criminal justice system, and highlights dimensions to existing problems. In addition to the specific recommendations already made, we strongly suggest that each component involved in the administration of justice should study, delineate and publish practice guidelines for its members on how to handle these issues; and should ensure that their policies and practices are disseminated across the constituent units of the criminal justice system. Failure to do so will lead to inconsistency, which is the enemy of justice, and will inevitably leave practitioners floundering as they face early experience of these issues in practice.