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.