What's happened to the prison population during COVID-19?

Taking a lead from a useful blog by the Scottish Prisoner Advocacy and Research Collective, here I take a look at what we know about the drivers behind this fall and what data we have on it.

The drop

The most recent figures show that the prison population in England and Wales was 79,522 on 3 July. This is a drop of 4,435 people since the recent peak of 83,957 on 6 March. It’s also a drop of 3,095 since the same time last year when the population stood at 82,617. Although large in historical terms, the 5 per cent drop in a matter of months lags far behind the declines in prison populations seen in other European states during the pandemic.

Factors affecting the prison population 

Prison populations are highly dynamic, with daily movements in and out of prisons based on a variety of factors. I highlight the main direct input and output factors below. 

Due to the lag in the data, we won’t have information on precisely what’s happening in terms of criminal justice processes to lead to such a fall for some time. Here I look at what we do know and speculate as to what might be changing in the flows in and out of prison to cause such a fall, using statistics from recent periods.

Input factors

Recorded crime and arrests

If we start from the entry point into the criminal justice system, figures released by the National Police Chief’s Council (NPCC) suggest recorded crime fell by 25 per cent in the four weeks to May 10 compared to the same period in 2019. This includes a 28 per cent fall in rape offences, 30 per cent falls in assault and personal robbery, 36 per cent reductions in residential burglary and 41 per cent decreases in theft from a vehicle recorded by the police. The NPCC say the rate of absence of staff, which would affect the levels of police activity, is low, at 7.3 per cent.

The police recorded 4,239,692 crimes and made 671,126 arrests in the year to 31 March 2019. That’s an average of 353,307 crimes recorded a month, meaning in May this year there were around 265,000 crimes recorded. If that maps straight onto arrests, that might mean there were about 42,000 arrests in May rather than the 56,000 there may have been in the same period the year before.

Official statistics for recorded crime during the lockdown period are due in October.

Crown Prosecution Service charging

On 14 April the Crown Prosecution Service issued guidance asking prosecutors to prioritise the most serious cases, including COVID-related cases, when making charging decisions. This suggests charging decisions where prison terms – and longer prison terms at that – were a more likely final outcome of prosecution are being given precedence. Off-setting this, the guidance also asks prosecutors to consider the impact of the pandemic on the criminal justice system when making charging decisions, seeking to avert the courts where possible. 

Court cases and sentencing trends

There is a lack of real time data 0n court activity, with the official statistics covering the lockdown period not due till November this year.

In evidence to the Justice Committee on 4 May, Chris Philp, Parliamentary Under-Secretary of State at the Home Office and the Ministry of Justice, revealed that for about four weeks from around the end of March to the beginning of April, no magistrates' court trials took place. He said that around 800 magistrates' trials a week took place before the pandemic, and that when they resumed only about a quarter of the number of trials were being listed as before. Similarly, in crown courts, all jury trials were suspended on 23 March, and only began to resume in the week beginning 18 May. 

In further evidence to the Justice Committee on 23 June, Susan Acland-Hood, CEO of HM Courts and Tribunals Service, said that she expects all closed courts to be reopened by mid-July. She also indicated, however, that following risk assessment, magistrates' courts are still operating well under normal capacity, and the number of jury trials going ahead is still small.

In the first three months of 2020, there were 10,630 effective criminal trials in the magistrates' courts, and 2,254 in the crown courts. 

Full trials are only a part of the criminal court caseload. Chris Philp’s evidence to the Justice Committee also indicated that on 27 April, hearings were down by around 50 per cent across the board (i.e. civil, family, tribunals and criminal). Eighty-five per cent of these were done remotely, and roll-out of cloud-enabled hearings has continued.

The latest official data we have shows that in the final quarter of 2019, 329,195 people were prosecuted in courts in England and Wales. 58,276 of these were for indictable offences, i.e. convictions for which make up the majority of prison sentences. HM Courts and Tribunals Service management information (not official statistics) indicated that COVID-19 had a significant impact on caseload in April. In February 2020, receipts of criminal cases to magistrates' courts stood at 124,000. In April they fall all the way to 78,000. That's a decline of a third in a month. Disposals related to criminal cases in the magistrates' courts went from 120,000 in February 2020 to 25,000 in April. That means the rate of disposals for criminal cases compared to receipts fell from 97 per cent in February 2020 to 32 per cent in April. Receipts of criminal cases to crown courts fell from 9,000 in February 2020 to about 3,500 in April, and disposals from about 8,500 to 3,000 in the same period. 

There are two potential COVID-related influences on sentencing to immediate custody.

Firstly, the Lord Chief Justice ruled on 1 May 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. 

The Sentencing Council guidelines were, however, not amended to reflect this.

Secondly, assaults, including those on emergency workers, using the threat of COVID-19 infection (i.e. coughing and spitting) is an aggravating factor in sentencing for which prison is a maximum penalty. Many such incidents have been reported.

Again, real time data isn't available, but looking at the latest official statistics, 18,993 prison sentences were handed down in the three months to December 2019. In the same period there were 7,377 people whose first entry into prison during that time was as a sentenced prisoner.

Use of remand

The fall in police activity will have reduced the number of prisoners remanded in custody. We have no data for the lockdown period, but in the three months to the end of December 2019 there were 9,878 people whose first entry to prison in that time was as a remand prisoner. At the end of March there were just over 10,000 prisoners on remand.

On the other hand, people who are remanded to custody might have to wait longer to be tried due to the reduction in court activity, and applications for bail may take longer. Custody Time Limit cases are, however, reportedly being heard.

Parole/licence recalls

Prisoners released on parole can be recalled to custody for various reasons. There were 6,365 recall admissions to prison in the three months to December 2019. I can find no information about how this has been impacted by coronavirus.

Output factors

Releases

Most prisoners are automatically released halfway through their sentence. 13,375 people on determinate sentences of less than four years were released in the three months to December 2019.

Home Detention Curfew

Plans to extend home detention curfew, so that prisoners could be released 45 days earlier than the current scheme allows, were abandoned in mid-May. On 29 May there were 2,634 people on home detention curfew, a fall of about a hundred since lockdown began. 

Parole

Prisoners serving determinate sentences of four years or more, or indeterminate sentences, can be released on parole. The Parole Board paused all face-to-face hearings and shifted them to be done remotely or by telephone, as well as introducing an intensive paper review process.

Data from the first month of the lockdown suggest the number of releases has not been impacted, with 360 prisoners directed for release in the period of lockdown to 24 April, compared to 240 in an average month before the pandemic. Official figures show that in the final quarter of 2019 there were 2,381 prisoners serving determinate sentences of four years or more and 175 prisoners serving indeterminate sentences who were released on parole. 

Discretionary releases

On 4 April the government announced that up to 4,000 prisoners could be released early to reduce the prison population in response to coronavirus. Low-risk prisoners with less than two months left of their sentence were eligible to be freed on electronic tags.

The latest publicly available figures indicate that only 55 prisoners have been released as part of this scheme, as well as 21 pregnant women and five prisoners on compassionate grounds.

Conclusions

Looking at the data and the qualitative information we have, it is clear that criminal justice processes have been affected by the pandemic across the board. As I've drawn out, the mutual dependencies in the criminal justice system mean the impacts are not in one straightforward direction, and it will take some time to disentangle their significance. 

It does seem clear at this point that significant falls in recorded crime and the suspension of much of court activity have led to an historically sharp drop in the prison population.

There are calls for measures to speed up the clearing of the backlog of cases in courts. In the absence of sentencing reform, however, and with a government reluctant to embark on a substantive programme of early release, what has gone down must go up.

The knife-edge strategy for managing the virus in prisons means this must be avoided as a matter of urgency.

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Note

Some of the official statistics covering the first three months of 2020 are due to be released later in August. We may be able to detect the early inpacts the coronavirus had on these caseloads in these statistics.

If the Ministry of Justice sticks to the normal timetable for the release of these statistics, it won't be until October/November that we get a full picture of what went on during the peak of the pandemic.

I plan to provide further updates as the fuller picture begins to emerge.