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?