Saturday, 2 May 2020

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.                             

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