Today’s question is about the release of prisoners – see Thalia Anthony ‘Why releasing some prisoners is essential to stop the spread of coronavirus’ The Conversation, March 18, 2020. This question comes from the Northern Territory and my correspondent has been

… wondering what the legal mechanism is for release in an emergency. I see the power to give people directions to leave premises / locations under the NT Emergency Management Act.

I also see – from searching below, that there is something called ‘executive release’ of prisoners in the UK. I haven’t found info about the source of that power.

I wonder if you happen to have any pointers…?

I am given links to reports from the UK:

Prisoners ‘may’ be released if COVID-19 breaks out in jails SkyNews, March 15 2020 ‘Steve Gillan, head of the Prison Officers Association, says previous governments have actioned “executive release of prisoners” in the past.’

The USA:

Alene Tchekmedyian, Paige St. John, Matt Hamilton ‘L.A. County releasing some inmates from jail to combat coronavirus’ Los Angeles Times, March 16, 2020.

Marco Lucas, ‘Ohio Jail Eyeing Possible Release Of Hundreds Of Inmates Due To COVID-19’ International Business Times, March 16, 2020.

And Iran

‘Iran releases 54,000 prisoners temporarily to limit coronavirus spread’ SBS News, 4 March 2020.

In the Northern Territory the relevant legislation is the Public and Environmental Health Act 2011 (NT). That Act provides for emergency powers during a declared public health emergency. The Chief Health Officer (CHO) may (s 52):

(1) … may take the actions (including giving oral or written directions) the CHO considers necessary, appropriate or desirable to alleviate the public health emergency stated in the declaration.

(2) The actions the CHO may take include any of the following: …

(d) evacuating persons from an area or a particular place…

(3) The directions the CHO may give include directions requiring any of the following:…

(b) a stated person to remain in, or move to or from, a stated area or place immediately or within a stated period…

Further, s 53(2):

An authorised officer assisting the CHO may use the force that is necessary and reasonable to do any of the following: …

(b) prevent entry into or close off an area or place;

(c) remove a person from an area or place…

Prima facie that would look like a power to order the evacuation of a gaol. They could not direct a prisoner to leave the gaol as he or she would not be able to leave the prison (if you can just walk out of prison, it really is minimum security). Presumably however the CHO could direct the prison authorities to evacuate prisoners from a gaol and an authorised officer could (save that prisons are designed to resist forced entry) enter the prison to remove person and to close off the prison.

Putting aside the logistic issue that prisons are designed to stop people coming in, or going out there are other issues. Ordering the evacuation of a prison is not the same as ordering the prisoner’s release. A prisoner under sentence would still be under sentence so could, consistent with such an order, be moved to another place of incarceration. I cannot see that the CHO has the power to order that prisoners are released even if he or she can order that a particular prison be closed.

When a judge sentences a person to a period of imprisonment, the management of that prisoner is a matter for the prison service administration. The judge does not determine where or how the prisoner serves his or her sentence. For example, in the Correctional Services Act 2014 (NT) s 38 says ‘The Commissioner [of Correctional Services] is to determine at which custodial correctional facility a prisoner is to be held’.

The Commissioner cannot simply decide to end the sentence of a prisoner but he or she can (s 109):

(1) … authorise a prisoner to be absent from a custodial correctional facility by issuing to the prisoner one of the following (a leave permit):

(a) a general leave permit;

(b) an interstate custodial leave permit;

(c) a foreign legal matters leave permit;

(d) an administrative home detention permit.

(2) A leave permit authorises the prisoner to be absent from a custodial correctional facility in accordance with the terms and conditions of the permit.

Section 118 says:

The Commissioner may issue a permit (a general leave permit) to a prisoner that authorises the prisoner to be temporarily absent from a custodial correctional facility for a purpose the Commissioner considers appropriate.

A general leave permit remains in force (s 110) for ‘a period the Commissioner considers appropriate having regard to the purposes for which the permit is issued.’ Whilst on leave a prisoner must (s 111):

(a) … must obey all reasonable directions of the Commissioner, a correctional officer or a probation and parole officer;

(b) the prisoner must not commit an offence;

(c)any conditions prescribed by regulation;

(d) any conditions specified in the permit

That is not called ‘executive release’ but that is what it is. Governments are divided between the legislative, judicial and executive branch. The legislative branch is the parliament, in this case the Parliament of the Northern Territory. The judicial branch is the judges and the courts. The executive branch is the government departments and public service. The Commissioner of Correctional Services is part of the executive government.

The Parliament may make a law saying some conduct is criminal. The executive government (police and DPP) may allege that a person has committed the crime. The person (the accused) may deny that. It is a court, the judicial arm of government that determines whether or not the executive has proved the case beyond reasonable doubt and determines the sentence. If the sentence is one of imprisonment the prisoner is placed into the custody of the Commissioner (s 8) ie the executive government.

A prisoner must be released on the expiration of his or her sentence (s 61) or could be released on judicial order (eg by a court of appeal setting aside their conviction or sentence). If they are released by the Commissioner it must follow that this is executive release, it is release on the decision of the executive government applying the law made by the legislature.

In context the Chief Health Officer could order the evacuation of a prison if that was necessary to manage the public health risk, but that would not compel the Commissioner to release the prisoner. The Commissioner could transfer them to another prison or make other arrangements for their custody.  The Commissioner could also choose to grant the prisoner leave; if they are on leave, they remain under sentence.

One would imagine it would never come to the CHO ordering the Commissioner to do anything. One hopes that with an all of government response the CHO and the Commissioner would talk and the Commissioner would take the CHO’s advice and if that meant giving leave to some prisoners to reduce the gaol population that would be within the Commissioner’s powers under the Correctional Services Act 2014 (NT)