Blog: Reflections on training for NPMs on procedural rights in pre-trial detention and on material detention conditions

In June, Jane Kilpatrick attended a training event for European NPMs on preventive monitoring of detention, centred on the European Commission’s 2023 Recommendation on the procedural rights of suspects and accused persons subject to pre-trial detention and on material detention conditions. In this blog, Jane shares insights from the training and discussions with the rest of the UK NPM.

Although an EU Recommendation, and therefore not a framework governing the UK NPM, it provided a useful lens through which to revisit some fundamental questions about our work. What makes a visit preventive? How should minimum standards inform our expectations? How far should NPMs look beyond conditions inside a place of detention to understand why those conditions have arisen? And, perhaps most importantly, what makes a recommendation capable of producing change?

Minimum standards are a minimum, not the standard

The Recommendation brings together standards covering both the material conditions of detention for all detainees and the procedural safeguards for people held in pre-trial detention.

It covers: accommodation and personal space; sanitation; food; healthcare; time outside cells; work and education; contact with the outside world; legal assistance; prevention of violence and ill-treatment; and safeguards for people who may be particularly vulnerable.

Our discussion clarified an important distinction between how NPMs and the CPT use standards and laws, and how these are used by the European Court of Human Rights (ECtHR) and national Courts.

The Recommendation outlines that detainees should normally have at least 6m² in a single-occupancy cell and 4m² per person in a multi-occupancy cell, excluding the area occupied by sanitary facilities. It also recognises the ECtHR’s 3m² threshold in shared accommodation. The Court’s case law treats less than 3m² as giving rise to a strong presumption of an Article 3 violation. The CPT, meanwhile, maintains its minimum standard of 4m² per prisoner in multiple-occupancy cells.

The ECtHR is ultimately deciding whether particular circumstances have amounted to a breach of the Convention. In contrast, the CPT’s task is preventive: it seeks to encourage conditions in which ill-treatment is unlikely occur and has therefore continued to reiterate its 4m² standard. Minimum standards should be a starting point for preventive analysis and scrutiny, rather than an aim.

Are procedural rights an NPM issue?

A thought-provoking discussion concerned pre-trial detention, or remand, and the extent to which NPMs should comment on safeguards that might be implemented before a person is effectively deprived of their liberty, especially since NPMs do not intervene in individual cases.

However, the consequences of systemic patterns on conditions in detention certainly are relevant to NPMs, including for example the impacts of increased use of and longer pre-trial detention on prison overcrowding. This is a reminder of the interconnectedness of rights; a procedural issue which appears principally to concern Article 5 ECHR (the right to liberty) can have significant consequences for people’s treatment and conditions in detention, thereby engaging article 3 ECHR.

While NPMs need to consider remit, expertise and use of (often scarce) resources, the discussion outlined where looking further at the causes of conditions may become an NPM concern.

Visits are only part of the preventive cycle

Related to this was discussion of NPMs’ non-visiting functions (i.e. education, advisory, cooperation).

There are obvious resource implications in commenting on legislation or policy, engaging with professional bodies, analysing data or contributing expertise to training. But these activities may also address causes that cannot be resolved through recommendations to an individual establishment.

For example, an NPM interested in the use of pre-trial detention might combine:

• analysis of relevant laws and policies against international standards;
• statistics on the scale and duration of detention;
• evidence gathered during preventive visits;
• interviews about people’s experience of procedural safeguards;
• analysis of the experiences of groups in potentially vulnerable situations; and
• engagement with bodies such as Bar Associations or those responsible for judicial and professional training.

Importantly, contributing to training does not necessarily mean becoming a training provider. An NPM could, for example, use evidence from preventive visits to inform a module on de-escalation or proportionality, or examine whether existing training adequately addresses risks found repeatedly during visits.

The UK NPM model gives us considerable collective expertise across different types of deprivation of liberty to use in such educational, advisory or cooperative endeavours.

Recommendations should make change possible

Another key discussion was the quality of recommendations. A useful recommendation should make it possible to understand:

1. What action is needed?
2. Who is responsible for taking it?
3. What might implementation require, including resources?
4. Over what timeframe should change happen?
5. Is the proposed action actually within the recipient’s competence?

That sounds straightforward, but it poses useful questions when reviewing the UK NPM’s own recommendations. Is the action specific enough? Have we addressed the cause rather than just the symptom? Are we repeatedly directing recommendations to an organisation that lacks the power to implement them?

Under OPCAT, recommendations form part of a dialogue. Article 22 requires the competent authorities to examine NPM recommendations and enter into dialogue on possible implementation measures.

Follow-up therefore involves more than recording whether a recommendation has been accepted. The training distinguished between monitoring implementation, assessing the degree of implementation, stimulating implementation, and evaluating whether implementation has actually produced the intended improvement.

That last point is particularly important. An action being completed is not necessarily the same as the risk being reduced. There is also a difficult judgement about persistence. When should an NPM keep pressing, and when should it allow an authority time and space to implement change? Repetition can be important, but recommendation fatigue can itself impede improvement.

Annual reports can be instruments of prevention

At this time of the year, I was naturally most attentive to the training on annual reports… NPM annual reports function both as a further mechanism to highlight systemic issues and make system-wide recommendations, and as a tool for dialogue and influence.

The “annual” nature is particularly useful, to track the key themes or recommendations of the last annual report, note what has changed and what has not. An annual report is also an opportunity to engage government representatives, committees, civil society and international organisations in the ongoing effort to create positive change, as the UK NPM does every year.  At the top of my mind when drafting the UK NPM’s annual report each year, is “what do the NPM organisations want particular readers to do differently, after reading this report?”.

AI

The group briefly discussed the increasing use of algorithms and AI in decisions affecting detention. If an automated system influences where people are placed, how risks are assessed, or what restrictions they experience, understanding that system may increasingly become part of understanding the environment in which deprivation of liberty occurs.

For preventive bodies, this creates challenging questions about expertise, transparency and evidence. While we do not need to become data scientists, we may increasingly need to be capable of asking informed questions about how automated decisions are made, what data they rely upon, whether particular groups are disproportionately affected, and where human accountability sits.

The Council of Europe has launched guidance on AI (the HUDERIA Methodology and Model), which assesses the risks and impacts of AI systems with regard to the protection and promotion of human rights, democracy and the rule of law.