Prison Sentencing During Covid-19. Why the Courts Must Accept the Realities of the Situation

While the prison population may gradually be falling - this week dipping under 80,000 for the first time since 2006- it needs a much more substantial reduction if prisons are to start to exit their lockdown and put in place more humane but Covid secure regimes. 

Like any residential institution, prisons are high-risk environments for the spread of infectious disease. They are full of people in already poor health. Doing as much as possible to keep people out of such environments is a sensible public health policy in an emergency like this. 

There is a more principled reason for putting – and keeping -fewer people behind bars. This relates to those exceptionally harsh conditions which prisoners now face as a result of the measures deemed necessary to safeguard their health. Put bluntly, since imprisonment has become a more onerous punishment than it was, so its use should be reserved for more serious offences than previously; and the length of custodial sentences which are imposed should be reduced to reflect the greater pain that they inflict on those who serve them in the current conditions.

The Lord Chief Justice ruled in April that confinement in cells for 23 hours a day, lack of visits and anxiety about the risk of the transmission of the virus mean “the impact of a custodial sentence is likely to be heavier during the current emergency than it would otherwise be”.  

He pointed to the long-standing principle of taking such an impact into account in sentencing practice, both in deciding whether an immediate custodial sentence is called for at all and if so for how long.  Last week, Lord Burnett told MPs that he had absolutely no doubt that from the beginning judges have been alive to the issue.  “I am confident” he said, “that it is a basic principle of sentencing practice of which all sentencers will be well aware”.  But are they?

There doesn’t seem to be very much at all about this basic principle in the Guidelines produced by the Sentencing Council.  The Guidelines do make clear that:

* the impact of punishment is likely to be felt more heavily by a child or young person in  comparison to an adult
* offenders over 18 who are immature and who have a mental disorder or learning disability may find it particularly difficult to cope with custody and 
* courts can take account of the greater impact which imprisonment will have on an offender with a physical disability or a serious medical condition- though worryingly, the Overarching Principles on sentencing say that “the court must impose a sentence that properly meets the aims of sentencing even if it will carry the clear prospect that the offender will die in custody”.   

It’s also the case that for offenders on the cusp of custody, imprisonment should not be imposed where there would be a disproportionate impact on their dependants. One of the factors indicating that it may be appropriate to suspend a custodial sentence is if immediate custody will result in significant harmful impact upon others. Significant harmful impact on prisoners themselves is not however a factor.   

Nor do "current prison conditions" yet appear on that list of factors, notwithstanding the Chief Justice making it clear that they should be taken into account in deciding whether to suspend a sentence.

Lord Burnett's judgment confirmed a long line of Court of Appeal cases going back 40 years which encourage sentencers to take account of adverse conditions- overcrowding in particular- in deciding whether to lock someone up and if so for how long.  In 2007 Lord Phillips was explicit that the “prison regime is likely to be more punitive as a result of prison overcrowding”, which also hinders or prevents “the valuable work of rehabilitation that a prison should normally provide”. 

In spite of these cases, Guidelines do not point courts clearly enough towards considering how a prisoner will actually experience the penalty they impose, whether it is impoverished due to overcrowding or other difficulties.

Indeed, many believe that “courts ….properly sentence blind to the size of the prison estate”.   But as Lord Woolf put it, while the government not the courts are responsible for providing prison places, “the courts must accept the realities of the situation”.  That situation is that severe hardships resulting from the crisis apply now and for the foreseeable future to everyone in prison.

The logic of today's "current realities" dictate both that the custody threshold is moved upwards and sentencing tariffs moved downwards.   The Sentencing Council, one of the few criminal justice organisations to remain largely silent during the COVID crisis needs to take action.

The Council has amended its guideline on common assault to tell courts to treat as an aggravating factor “threats or activity relating to transmission of Covid-19”. But it has so far done nothing to reflect the more punitive nature of imprisonment as a response to this or any other offence.  

Reducing the numbers in prison. Opening the back door hasn’t worked – it’s time to shut the front.

While thankfully the spread of Coronavirus in prisons is so far less than many have feared, the success has come at a high price. Cellular confinement, previously a disciplinary punishment, has become the order of the day. There are no social visits and opportunities for education, training and work are much reduced. 

Such has been the changing impact of imprisonment during the emergency that the Chief Inspector of Prisons describes children being allowed out of their cells for as little as 40 minutes a day in a "generally positive" report . In three local prisons, he found that to minimise spread of Covid19, prisoners were being asked to endure "extreme restrictions", with the vast majority locked up for nearly the whole day.

It’s becoming clear across the board that only a substantial reduction in the number of prisoners will enable the social distancing required to allow something approaching normal service – notwithstanding its limitations - to be resumed.  And social distancing may be needed for many months to come.   

Prison numbers have come down- 3% since January – paltry compared to a fall of 70% in the (albeit much smaller) population in Immigration Removal Centres. But without more action, as lockdown is eased and activity in the Courts resumes, demand for jail places could increase. The criminal justice system needs to stay alert to this. 

Fewer than a hundred prisoners have so far been freed on Temporary Release, predictably given the byzantine regulations governing its use. 

If the exit hasn’t been opened very wide to allow people out of prison, perhaps it’s time to push the front door further closed to block their entry.    

The Chief Justice has indicated that harsher jail conditions means courts should send fewer people to prison and reduce the time they spend there. Hopefully his judgment has been brought to the attention of sentencers; in any event the Sentencing Council need to issue an addendum to their Guideline on the imposition of community and custodial sentences.  

At the very least, “current conditions in prisons” need to be added to the list of factors for courts to weigh up in considering whether it is possible to suspend a prison term.  Better would be a strong – but rebuttable -presumption in favour of suspension of all prison sentences of two years or less. 

Even a modest shift here would make a difference. Last year, of the 76,000 sentences of immediate custody imposed by courts, 58,000 were for two years or under – and therefore capable of being suspended.

The Council should also give guidance on how the heavier impact of a prison sentence should affect sentence length. Why not a discount on the going rate for most offences? Some might object to such an arithmetic approach but it’s the one taken to calculating discounts for early guilty pleas. Without it, nothing much may result.

Prisoners already serving sentences also deserve compensation for the heavier conditions– perhaps an equivalent discount- though that would require legislation. Three years ago, in Romania, following repeated violations of the European Convention on Human Rights, a system was introduced in which six days were taken off a prison sentence for every 30 days served under improper prison conditions. Could something similar be worked up In England and Wales? 

Courts also need to be restrained from remanding so many defendants in custody during the crisis. Some of the spare electronic tags purchased for early release cases could be used to monitor more people on conditional bail. The Sentencing Council has no mandate here, but one way or another, courts will need to be firmly steered away from the use of unnecessary pre-trial detention.

Perhaps this is something that the Justice Committee could put to the Lord Chief Justice when they question him next week?    

Criminal Justice – The Need for a New Normal

Covid 19 and the requirements of social distancing are obviously placing great pressure on the institutions which deal with wrongdoing- police, prosecutors, courts, prison and probation services. They have all had to adapt not only their ways of working but their priorities. If it’s true that in the midst of every crisis, lies great opportunity, should some at least of these adaptations form part of a new normal, once the pandemic is over?

For example, the CPS has told prosecutors that they should be proactive in discharging their ongoing duty to review cases -in particular whether the public interest lies in continuing to take a case to court. Guidance has reminded prosecutors that where appropriate they may decide to discontinue proceedings or offer an out of court disposal instead. With more than four out of five offenders sentenced in courts last year receiving a fine or discharge -sanctions which do nothing to rehabilitate them or compensate victims- there’s scope in the future for the police and prosecutors to issue more in the way of cautions, community resolutions and warnings, whose use has been falling in recent years. Focussing the work of the courts on the most serious and persistent criminality will make sense when resources are tight.

On sentencing, the Lord Chief Justice has this week ruled that “the current conditions in prisons represent a factor which can properly be taken into account in deciding whether to suspend a sentence. Judges and magistrates can therefore, and in our judgment should, keep in mind that the impact of a custodial sentence at the moment is likely to be greater during the current emergency than it would otherwise be.” This echoes a 2007 ruling from one of his predecessors Lord Phillips that “when considering the length of a custodial sentence, the court should properly bear in mind that the prison regime is likely to be more punitive as a result of prison overcrowding.” Let’s hope that the current ruling has more of an effect than did the earlier one. 

  

There have been restricted prison regimes across the board since 24 March -no education or training, social visits, access to gyms, religious or general association and very limited employment. So courts will not need to investigate whether and to what extent adverse conditions exist in the particular establishment to which a particular offender might be sent -a factor which perhaps made Phillips’ ruling difficult to apply in practice. 

But once the Coronavirus crisis is over, the prison crisis won’t be. The principle of courts taking greater account of the real-world impact of punishments when sentencing should be one to stay in the long term.   

Finally, on prisons, despite the very impoverished experience facing prisoners, one silver lining of the Covid cloud is a growing recognition of the need to reduce overcrowding in general and in particular the use of single cells for more than one prisoner. On Friday, the prison system had a usable operational capacity of 83,872, 1633 lower than the week before. While this may seem odd given that the Prison Service is creating more cells and taking over Medway Secure Training Centre, the reduction probably reflects less doubling up in single cells. 

The Prison service has started to redesignate its measure of capacity on the basis that single cells should hold one prisoner. While this may seem a technical - and obvious- point, it holds the prospect of a more honest approach to the assessment of overcrowding- the cancer as Lord Woolf once said,  that eats at the ability of the prison service to achieve its object of protecting the public from crime.   

At the end of March, the prison service reported that it had a good, decent standard of accommodation for just under 76,000 prisoners. An Institute for Government report this week estimated that the prison population could drop to 70,000 by September 2020 if the crisis lasts for six months.  The report estimates that it could return to 88,000 by March 2024. 

We need to find a way of avoiding that becoming the new normal.                             

Well Done or Too Rare? Why MPs need to ask about the Early Release of Prisoners

Questions in Parliament on Monday for Justice Secretary Robert Buckland and his ministerial team. No doubt MPs will want to know how the various elements of the justice system are adapting to the demands of lockdown, but it is the prisons about which they should be most concerned. In particular, they should ask why plans to reduce the population -considered necessary to minimise infection risks for prisoners and staff - are progressing so slowly.   

The overview of the eligibility criteria for the End of Custody Temporary Release scheme, published on Friday, offers some clues. The process looks complicated, with prisoners having to meet four sets of conditions if they are to be released on an electronic tag up to two months before their normal release date.

There are the legal parameters set out in the Statutory Instrument- basically a prisoner must be serving a standard determinate sentence with an automatic release point or be in custody for fine default or contempt. There are criteria set out in Directions from the Justice Secretary. So far he has issued two of these- on 7 and 24 April setting out exclusions and requirements relating to the offence committed by the prisoner, the length of sentence and the risks they pose.  A list of prisoners eligible for release based on the legal and Direction Criteria is being drawn up nationally.

Prisoners on the list must then be assessed locally to see if they fit so called Policy criteria- do they have suitable accommodation? Can their healthcare, including any Covid-19 considerations, be safely managed post-release? In bold type, it’s stated that “Fundamentally, they must not present a level of risk of harm, reoffending, failure to return or other significant challenge that cannot reasonably be managed in the community.”

There is a very strong presumption that prisoners who do not meet these policy conditions should not be released “unless there are exceptional circumstances to depart from this”.  The local assessment process includes some additional issues - previous failures on ROTL and behaviour such that the Governor considers it unlikely that the individual can be trusted to complete the licence.  Final decisions on release are not however made by the Governor but centrally on behalf of the Secretary of State to maintain consistency in decision-making.

Looked at one by one, many of these considerations look reasonable. For any Temporary Release provisions , the Secretary of State must be satisfied that there would not be an unacceptable risk of a prisoner committing offences or failing to comply with conditions whilst released; and the arrangements should not undermine public confidence in the administration of justice.

But taken as a whole, the process they give rise to looks cumbersome, demanding and unrealistic. How, for example, can Governors ensure that a release would not put the offender or others at any health or Covid-19 risks?  Surely the lockdown is in place precisely because we are all subject to such risks.

There are some apparent inconsistencies too.  The 7 April Direction requires prisoners to be assessed as having a low or medium Risk of Serious Harm level- but the overview guidance says that the process aims to ensure that “only …the appropriately low-risk are released”.  

Puzzling too is why despite a presumption that those who meet the statutory and policy criteria should be released, “not everyone who meets the eligibility criteria has to be or will be released”. The government says that releases may be targeted at specific prisons to relieve particular pressures in relation to Covid19. It’s true that overcrowding is concentrated in local prisons. But with the system 6,000 above its uncrowded capacity, it’s hard to see why anyone who meets the rigorous criteria for being allowed out should not go home- subject to the stringent conditions spelled out in the guidance.  This would give much needed breathing space to prisons of all kinds which are trying to manage with 80% of their staff at work.

Moreover, the most recent policy framework for Release on Temporary Licence makes much of Procedural Justice – the idea that when people believe the process of applying rules is fair they are much more likely to respect and comply with authority willingly . For prisons in this public health emergency, this would seem to be more important than ever. 

Under the Ash Cloud

Stuck in Lisbon on the way back from the 2010 UN Crime Congress in Brazil, the offer of a lift into Northern Europe seemed to good to miss. At Salvador airport, I had run into my friend Tapio Lepii Seppala who ran the national legal policy research institute in Helsinki.  He had attached himself  to the official Finnish delegation (the Minister of Justice Tuija Brax , her husband , special adviser and  senior civil servants) for whom the Finnish embassy in Lisbon was plotting a 4000 km  road trip home, under the ash cloud.

To my slight surprise, Tapio followed up the next day with a text to say that the minibus was hired-  for 16,000 Euros. They would happily drop me off near Paris. There was a catch.   They had to wait a few hours for their former President Marti Ahtisaari who was flying in from Venezuela and needed a ride home too.  The Nobel peace prize winning international peacemaker had been lecturing, it emerged later, in Iceland when the volcano erupted – and together with his assistant and bodyguard had embarked on an ambitious trip to circumvent the ash via New York, Caracas and now Lisbon. After some uncertainties- the bus had no toilet – I was invited to meet them all outside the VIP lounge at Lisbon airport.

We set off at 4 pm, joined by a couple of other Finns (ex minister Suvi Anne Siimes and a finance ministry official) who had been corralled together by the embassy -and three drivers. Two of the party had been up all night with what was politely referred to as stomach flu but spirits were otherwise high.  The destination for the 22-seater coach was a ferry from Sweden. For me it was less clear. Would a warship in Santander, a Eurostar from Paris or a ferry from Calais offer the quickest way back? Or would a long-distance lorry offer a route home?

Going was slow. Despite the three drivers, we stopped at two hourly intervals for what were mentioned as legal breaks, where sweets and biscuits were bought, and cigarettes smoked. Ahtisaari bought Toblerones to share, and one or two cans of beer were consumed. Long journey conversations followed. Some serious -the justice minister was concerned she would miss Thursday’s discussion of how many nuclear power stations were to be built. Some curious -what is the difference between dinner and supper in English and Finnish? Why are windmill wings shaped as they are? Who would win the forthcoming UK election?

As we meandered into Spain, immediately losing an hour, it emerged to my surprise we would be stopping for the night. Rooms had been booked at an empty conference centre near Valladolid where we arrived at half past midnight. Fortified with a beer at a local bar (but declining the whole crab tapas on offer), we took five hours rest before a 7 a.m. breakfast and 7.30 start. I was too late for HMS Albion, so Paris beckoned.

Climbing through the Pyrenees brought dozing, reading and political conversation worthy of the global elite I had unwittingly joined – what to do about Polisario and the Western Sahara - why Cyril Ramaphosa would have made a good South African President, Tony Blair’s efforts in Northern Ireland. Talk was punctuated with constantly changing ash updates from experts in Helsinki. The Finnish Prime minister called to check on progress. The journey was creating interest in the media.  After a 12-euro prix fixe lunch at possibly the worst restaurant in France, a team photo winged its way into a Helsinki evening paper.

As we headed through the Basque country to the vineyards of Bordeaux, my thoughts turned to where I would get off. We joked about being dumped in a lay-by on the Paris peripherique with the inevitable media questions about what happened to the mystery man in the press photo.  

The drivers and the bodyguard -who seemed in charge of the route - were not sure which way round Paris they would be going and I could not engage them in a serious discussion about my disembarkation. They pored over a map but only to identify a restaurant stop for the evening. We eventually sat down at the Entrecote in Tours where Ahtisaari hosted an excellent diner. Snails, frogs, raw beef and calvados were consumed, stomach flu notwithstanding. I took the opportunity between courses to establish that there was a nearby hotel and a train service to Paris, albeit strike affected of course. This I recognised was the last supper -or was it dinner?

We said our goodbyes and the bus headed off into the night to Germany, Denmark, Sweden- two more days and nights of driving. As I settled to a few hours sleep a text arrived.  All UK airports open. I might well have been better off biding my time in Lisbon.  But despite the continuing discomforts of a 12-hour train and ferry trip to London via Paris, Calais and Dover, I would not have missed the camaraderie of two days in the bus with Finland’s elite.

A Bit More on Scrutiny of Criminal Justice

Secretary of State Robert Buckland appears before the Joint Committee on Human Rights on Monday. He and Prisons and Probation Minister Lucy Frazer deserve credit for making themselves available to Parliamentary scrutiny before and during the recess, even if their evidence has not satisfied those who wish to see bolder action to safeguard the health of prisoners.  

The Committee has signalled that it will be asking him whether, inter alia, that to protect the right to family life for children of mothers in prison, he will institute early release for non-violent women offenders.

As well as pressing Buckland on this specific question, MPs and Peers may well want to clarify how many prisoners altogether have been released on Corona Virus Temporary Release and whether as was reported at the end of last week the scheme had been suspended.  Buckland will probably say that the prison population has fallen by 1,135 in the last fortnight with a proportionately greater fall among women than men. 

But given that the Howard League and Prison Reform Trust have threatened to seek judicial review of Buckland’s limited action to cut prison numbers in part because it is contrary to human rights duties to protect life and health- especially of those most vulnerable to the disease- the Committee has every right to press him on his plans and their implementation .  

The Human Rights Committee should also take an interest in the conditions facing people who remain in detention and how these are being monitored. The UK National Preventive Mechanism, comprising the 21 statutory bodies that independently monitor places of detention wrote to Buckland on 30 March but have not so far published any reply from him.

As well as raising the need to reduce detained populations to mitigate the inherent risk of maintaining people in close confinement, the NPM asked how the government will ensure skype, adapted mobiles and any other forms of contact are available to prisoners in the absence of visits. Harriet Harman should ask for an update on this as well as how the Prison Ombudsman and Independent Monitoring Boards are fulfilling their duties during the crisis.  

The Justice Committee have an opportunity to put similar questions to Chief Inspector of Prisons Peter Clarke on Tuesday when they take evidence from him in their relaunched inquiry on the ageing prison population.  Clarke has so far refrained from making public statements on what prisons should be doing to manage the crisis– ironic given that their inspection methodology across all forms of detention “consists of a series of broad thematic judgements known as healthy establishment tests”.

The Prison Governors Association -who were wrong in my view not to support Clarke’s proposals for one day light touch inspections- were however fully justified in asking him to join with others to seek a significant reduction in overcrowding. I don’t know why he hasn’t done so. MPs should ask him. 

Sir Bob Neill’s committee should also ask whether Clarke has been consulted about the new accommodation that is being constructed at pace to provide hundreds or even thousands of new single cells. If he is going to inspect them, its surely better for the prison service to involve him in their design.

These and many other matters could be raised by MPs - not least Buckland's new shadow David Lammy -in Justice questions scheduled for Tuesday. At the time of writing, they are still on the Order paper, although there's a suggestion they have been postponed.

If that's the case, Lammy should ask an Urgent Question on  the releases at least, as soon as he can.

Quis custodiet ipsos custodes? Update on Scrutiny of Criminal Justice in a Time of Crisis

In these extraordinary times, everyone is having to adapt to the requirements of social distancing- not least the institutions that hold the authorities to account. There’s been much talk today of the need for Parliament to resume as soon and as effectively as possible. Although it’s in recess for another week – normally a period in which neither House meets to conduct business- work has continued not least in relation to criminal justice.

Four emergency Statutory Instruments (SIs) came into force last week; to allow prison governors to release prisoners temporarily; to allow those prisoners to be accommodated in Probation hostels and to access means tested benefits during the period of their release. The fourth enables the increased demand for electronic tagging to be met by a new provider – Attenti .  

There was no opportunity for MPs to debate the measures – and disappointingly no impact assessments attached to the SI’s despite an assurance in the explanatory memoranda that there would be. The Justice Committee were however able to ask questions of Justice Secretary Robert Buckland and Prison and Probation Chief Jo Farrar on Tuesday.  They concentrated on the early release provisions, asking for estimates of the numbers and rates of release, why low risk Category D prisoners were not being prioritised for release, whether all prisoners really need to be tagged.  

The session seems to have formed part of a belatedly established inquiry into the impact of Coronavirus on prison probation and courts,  announced on 31 March – three weeks after the Home Affairs Committee announced their inquiry into Home Office preparedness for Covid19. But at least the Justice Committee has been able to hold two meetings with Buckland and will question prison and probation minister Lucy Frazer this week.  

As well as focusing on how probation is managing to operate in the current climate, Tuesdays’ hearing should also look at three questions that were neglected in last week’s meeting with Buckland.

The first is staffing. Prisons are really struggling with staff either sick or self-isolating. Some staff have been redeployed from HQ into jails and Operation  Quickthorn could be activated to allow troops to backfill "non facing" roles . But under what circumstances would the military be involved, what exactly would they do and under whose authority. Could they assist probation as well?

The second question relates to the 500 new prison places being created, how they will be used and what physical conditions they will provide.  There’s been concern expressed by reformers that expanding capacity in this way will mean that prisoners eligible for temporary release may be kept in prison instead and that the numbers freed will not reach the estimated 4,000 let alone the 15,000 reportedly recommended by Public Health England.

Third, the Justice Committee should ask about the work of the bodies charged with monitoring prisons and probation. Independent Monitoring Boards are continuing to monitor both prisons and immigration detention during the pandemic, though “much of this will necessarily be remote monitoring”. The Prison and Probation Ombudsman cannot read and reply to letters from prisoners who wish to make complaints.   The PPO has also ceased all visits to prisons so their investigation of fatal incidents – including deaths of prisoners from Coronavirus is affected. They “will continue to be informed of all deaths and will open new investigations as normal, but it is likely that we will need to extend our timetables and/or suspend cases until we are able to gather information and investigate safely”.  

Her Majesty’s Inspectorate of Prisons announced this week that they have created – in collaboration with HM Prison and Probation Service (HMPPS) and the Ministry of Justice -an adapted approach for the Coronavirus period, involving short scrutiny visits to prisons. These will focus on core issues such as healthcare, nutrition and hygiene; contact with families, friends and the outside world; legal rights; use of time and the need for meaningful human contact; support for those at risk of self-harm and suicide; and support and risk management for those being released.

What looks like a pragmatic approach from the Inspectorate received short shrift from the Prison Governors Association who consider that the visits are not needed and will put undue pressure on governors and their staff.  Somewhat disturbingly, the PGA’s strongly worded response talked of the "fear of inspection"some of their members have, and the likelihood that no tangible benefits will result from any inspection report. 

Whatever the Governors say, there is no doubt that some form of monitoring must take place. The UN and WHO have stated that monitoring bodies, should continue to have access to places of detention. The Council of Europe’s (CoE) Committee for the Prevention of Torture has said that monitoring by independent bodies remains an essential safeguard against ill-treatment. The question must be not whether inspection visits take place but how.  

The CoE Commissioner for Human Rights argued this week that prisons need a humane and comprehensive crisis plan which should be formulated “in consultation and co-operation with relevant human rights stakeholders, in particular National Preventive Mechanisms, other independent monitoring bodies, national human rights structures and human rights NGOs”.

MPs should ask Miss Frazer whether this is the approach that is being adopted in England and Wales- as a concrete example, are the plans for new build accommodation being discussed in advance with inspectors to check they meet minimum standards? 

This would indicate the kind of collaborative approach which is likely to serve the system best during the crisis and protect the health of those involved in it.