Criminal Justice in a Time of Crisis

In their excellent briefing paper Coronavirus: Health care and human rights of people in prison, Penal Reform International recommend that during the crisis “Criminal justice systems must adapt the way they operate to prevent doing harm”.

Much of the discussion so far in the UK has been about whether to postpone trials to reduce risk of disease among those involved; and how to protect people in prison from transmission.

On court hearings, the government have decided that Crown Court trials expected to last more than three days will not commence, and more cases will be heard remotely using video technology. On prisons, the government are looking to increase the numbers of prisoners eligible for release on Home Detention Curfew. While both seem sensible measures, they don’t go far enough and in the case of early release don’t address the fact that far too many prisoners have nowhere suitable to go if and when freed.

What’s needed is a systematic approach which looks to reduce demand on the system as a whole allowing it to focus on its core priorities. For police and prosecutors this means diverting many more minor cases away from the courts.

Many Police Forces have recently moved to a two-tier approach of Community Resolutions and Conditional Cautions but in the current crisis the full range of options – simple cautions, fixed penalty notices, drug warnings – should once again be made available.  In 2018 almost half a million court convictions resulted in low level penalties such as fines or discharges. Many of these could have been dealt with through out of court disposals. The CPS is supposed to prosecute only where it is in the public interest to do so. Given what the public interest currently demands, prosecutors should ensure that out of court disposals have been fully considered before agreeing to take a case to court.

Where prosecution is unavoidable, steps need to be taken to reduce custodial remands to a minimum. In 2017, of those who were remanded in custody pending trial or sentence in magistrates' courts, 58% did not go on to be sentenced to prison - over 13,000 people  – and more than one-quarter of people remanded in custody in the Crown Court did not receive a custodial sentence. Without action, postponing Crown court hearings could lead to an increase in the number detained awaiting trial. Bail, with or without conditions (including electronic monitoring) needs to be encouraged wherever possible as an alternative.

At the end of last month, Wormwood Scrubs in West London held 1053 prisoners, not only well over its uncrowded capacity, but unusually, more than its operational capacity -the total it can hold taking into account control, security & the proper operation of the planned regime. A quarter of its population are on remand- increasing that number just now would be reckless.

As for sentencing, courts should be encouraged by the Sentencing Council to suspend prison sentences as much as possible. If unsuspended imprisonment is deemed necessary, convicted persons who have been on bail before court should be permitted to defer their custodial term for six months.  Probation staff should be encouraged to recall people on licence to prison only when they present a risk to the public.

This kind of demand reduction strategy is arguably sensible at the best of times but looks essential over the coming months.  There are ministers in the government who straddle the Home Office and Ministry of Justice. They together with the Law officers and Judiciary need to get on and implement it.