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.