Scrutiny of Justice in a Time of Crisis

Good news that the government plans to reduce pressure on prisons by releasing 4,000 low risk prisoners up to two months early.  Credit’s due to the excellent work of the Howard League and Prison Reform Trust among others in pressing the Ministry of Justice to do the right thing.  And on the government side, one has to admire the tactic of wheeling out Michael ‘Prison Works’ Howard to provide political cover for an administration that pre-Covid 19 made so much of the need for prisoners to serve longer spells inside before release.    

But is today’s announcement enough? The uncrowded capacity of the system was 75,380 at the end of February and last Friday the population was 82,589.  So even if numbers fall by 4,000, many prisons may still struggle to avoid enforced cell sharing.     

There are other important questions to be clarified.  Do all the released prisoners really need to wear electronic tags? Is there capacity to achieve that?  What are the strict conditions prisoners will have to adhere to?  What will be the process for assessing eligibility? And most important when will it start?

The government’s press release says that the releases will be phased over time but can start from next week. It also says that the “Statutory Instruments to allow these releases to take place will be laid on Monday.” 

But Parliament is in recess so it’s not clear to me at any rate what procedure will be used to sign them into law. Surely some scrutiny of the government’s proposals is required before it’s done.

As it happens, on Tuesday the Committee will hear from Justice Secretary Robert Buckland about COVID19 and the justice system but “due to restrictions on Parliamentary capacity, partly caused by the virus, the meeting will be held online and in private. A summary note will be published shortly after.”   

This doesn’t seem good enough. On the same day the Transport Committee will be questioning Secretary of State for Transport on the impact of Coronavirus on UK transport. The session will take place virtually and will be broadcast live. There seems no good reason why the Justice Committee meeting should not be scheduled at a time when it can be broadcast too. There is considerable public interest not only in the release but the search for publicly owned sites which can be used to house temporary prison accommodation.   

It may seem churlish to complain about the lack of public involvement when politicians, officials and public servants in all departments are facing such extraordinary pressures. But as Penelope Gibbs has shown in respect of courts, without scrutiny, things can go wrong despite the best of intentions – and sometimes even because of them. Allowing independent access to justice institutions should remain an important priority.  

Chief Prison Inspector Peter Clarke was probably right to suspend his team’s inspection programme but promised to “seek alternative ways of fulfilling our obligation to monitor, understand and report on the treatment and conditions in prisons and places of detention”.  I’d like to see a set of expectations drawn up on how prisons should be dealing with the crisis and some kind of independent monitoring of how they are doing particularly in respect of medical care. For example, the Prison Rules require a medical practitioner “to report to the governor on the case of any prisoner whose health is likely to be injuriously affected by continued imprisonment or any conditions of imprisonment. The governor shall send the report to the Secretary of State without delay, together with his own recommendations”. How is this being interpreted?

Some input is needed too from the Sentencing Council to ensure a more sparing use of prison is made by judges and magistrates during the crisis. The experience of imprisonment is undoubtedly harsher at the moment with no work or education and more time in cell. Should this not be reflected by courts reducing sentence lengths and wherever possible suspending prison sentences? More radically still, the MoJ should enable custodial sentences to be deferred where a defendant has been on bail. The advantage of releasing low risk prisoners from the back door of prison will be eroded if low risk offenders continue to enter through the front door of sentencing.    

Specifically, the Council should say something about the sentencing of offences related to the Corona Virus Act 2020 or to the emergency more generally.  Justice Committee Chair Bob Neill said last week that he thought Justice Secretary Robert Buckland would want the courts to deal with these “swiftly and condignly”. But that’s less a matter for Neill and the Justice Secretary than it is for the Council who should urgently give it some more measured consideration.