During the pandemic, leaders must reiterate that custody is a punishment of last resort that must be reserved for the most serious offences, and must expedite the release of those offenders identified as suitable for early release
The Covid-19 pandemic has had a profound impact on England and Wales’ 80,000 prisoners. Severe regime restrictions have been in place since late March to stem the real threat of an epidemic. Visits have been cancelled (though efforts have been made to provide ‘virtual’ meetings in some establishments). Prisoners are often confined to their cells for 23 hours a day. Educational, vocational and spiritual activities have been curtailed. And residents and their families live in fear of an outbreak taking hold. At the time of writing (23 June 2020) 24 prisoners and nine staff have died from Covid-19 (House of Commons Select Committee Meeting 23 June 2020).
An indication of what these restrictions mean in practice can be found in a report by Her Majesty’s Inspectorate for Prisons when they visited three Category C training prisons in early May. One of the prisons inspected was HMP Coldingley in Surrey. When the regime change came into effect in March, prisoners were allowed out of their cells for 15 minutes a day and could shower two or three times a week. By the time of the inspection, time outside of their cells had increased to about an hour a day for prisoners. Conditions, though, remained grim:
‘Around two-thirds of the population had no toilet or sink in their cell. The lengthy period for which prisoners were locked up had placed additional pressure on the ‘on request’ sanitation system usually only used during the night.
The result was that prisoners, faced with long waits to use the communal facilities, resorted to using buckets in their cells. The situation was exacerbated by the fact that prisoners had to eat their meals in these same cells, and that by the time of this visit hand sanitizer had not been provided.’
In no way is this meant as a criticism of the prison staff whose dedication and drive to ameliorate the situation has often been heroic. Nor does anyone deny that significant restrictions were necessary to avert a potential public health disaster. Public Health England had forecast a ‘reasonable worst case scenario’ of between 1,900 and 2,700 deaths if prison regimes had not changed. The current ‘reasonable worst case scenario’ is 100 deaths. Regime change has proved a successful public health intervention, but there is no denying that the experience of serving a prison term has become far worse over the past three months. What this blog post will do is raise some questions about how the deterioration in prison regimes should influence sentencing in the short term. The two key questions posed are whether the worsening of conditions should affect the initial decision about whether to imprison an offender and, if so, whether the length of the term should be reduced. The conclusion will ask whether the current crisis in prisons may provide an opportunity to challenge current thinking about the ready resort to custody when sentencing offenders in England and Wales.
Should Regime Restrictions Influence Current Sentencing Practice?
The argument suggesting that the changes in regime should influence sentences can be put simply: prison has become more punitive and a failure to reflect this either in choice of sentence or in sentence length means that the offender will receive a disproportionately severe punishment. Someone sentenced to a six-month custodial term in June 2020 will objectively receive a harsher punishment than someone sentenced to a six-month custodial term in June 2019.
The law stipulates that prison must be reserved for the most serious offences. Section 152(2) Criminal Justice Act 2003states that a court ‘must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence’. Sentencers clearly retain considerable discretion in assessing how serious a case is – although they are obliged to follow sentencing guidelines where they exist. There can be legitimate disagreement when quantifying the seriousness of an offence. Most people were appalled recently when Andrew Banks urinated beside a memorial to a police officer killed in the line of duty. Opinion would no doubt be divided as to whether his conduct merited a 14-day prison sentence. The Lord Chief Justice has, correctly, recognised that the exceptional conditions faced by prisoners is relevant in deciding whether a prison sentence is warranted (R v Manning  EWCA Crim 592). It is important that judges and magistrates take heed.
Assuming that custody is necessary to reflect the gravity of an offence, should the length of the term take account of the restricted regime? The Court of Appeal addressed this directly and determined that in the ‘present, exceptional, circumstances it is appropriate to take the conditions under which the applicant is presently being held in custody into account’ (R v Jones  EWCA Crim 764). Nothing in the case report suggests that the prisoner would have been more adversely affected than any other prisoner under a restricted regime which raises the question of whether all prisoners or some prisoners should receive a shorter term? It is a well-established sentencing principle that courts will consider any particular factors which would impact disproportionately on an offender when deciding whether to impose custody. Some offenders would undoubtedly find a restricted regime more challenging than others. However, there is little doubt that the vast majority of prisoners would be adversely affected by the extremely difficult conditions in prison under COVID-19.
A further complication is ensuring parity with prisoners sentenced before the pandemic who are serving their sentences under the current regime. This was one of the concerns raised by the Scottish courts which have refused to reduce the length of a sentence due to the changes in prison regime (HM Advocate v Iain Lindsay  HCJAC 26). A potential solution to this problem would be to introduce a targeted early release scheme, which was the government’s favoured solution. Like many policy targets of late, however, this one has fallen far short: as at 23 June 2020, 175 out of the anticipated 4,000 offenders eligible for Early Custody Temporary Release had been released (House of Commons Justice Select Committee Meeting 23 June 2020). The fall in the prison population since earlier in the year is not due to early release but to inactivity in the courts. It is likely that the prison population will rise again once court activity resumes. This will pose additional strain if the prison lockdown regime continues after courts resume even in a limited capacity. In the short term then it is essential to restrict the flow of people into prison and to enable early release in appropriate cases. This calls for sentencers to be mindful that prison can only be imposed for offences that are so serious that neither a fine nor a community sentence can be justified. If a case does fall into this category, the length of the term should be proportionate to the seriousness of the offence. Imprisonment has become more punitive due to the restrictions on regime and this should be taken into account in determining proportionate punishment. Finally, Early Custody Temporary Release must be expedited.
The Ongoing Debate
It is not known how long a restricted regime will remain in place, but prisons are adapting and, gradually, regimes are expected to return to normal. This is not the point though to stop asking the same fundamental questions about the use of prison: who should be there, and for how long?
Prison use in England and Wales is far higher than in most comparable Western European jurisdictions. Reconviction rates exceed those for people serving other types of punishment, though the reasons for this are complex. The harm to those who serve prison sentences and to their families is well-documented. This information though informs the debate about when prison is appropriate but does not answer it. The debate must also acknowledge the real harm crime causes but should never accept severe punishment as the default response.
The current political climate may not be auspicious for those seeking progressive penal reform. However, other jurisdictions have managed to reduce their prison populations in recent years, sometimes substantially. The number of children in custody in England and Wales has also fallen dramatically in the last decade. A year ago, then Justice Secretary, David Gauke, and Prison Minister, Rory Stewart, were putting forward the case for a presumption against short prison sentences. Notably, neither is now in parliament. The underlying issues will not disappear when prison regimes return to normal. A debate still needs to be had, and many of the big questions remain identical to those being asked during the current pandemic. During the pandemic, leaders must reiterate that custody is a punishment of last resort that must be reserved for the most serious offences and must expedite the release of those offenders identified as suitable for early release. Judges must also heed the Lord Chief Justice and recognise that the change in prison regime must be taken into account when deciding whether a custodial sentence can be justified.