Sentencing reform needs to be part of the ‘new normal’

Helen Mills
Monday, 11 May 2020

COVID-19 means we are going to have to do things differently. Prison sentencing included.

At least 11 European countries have restricted new arrivals into prison since March. As the grid below details, governments have opted to postpone or suspend new prison sentences for some, or in some jurisdictions, all of those sentenced to immediate custody.

Whilst these measures vary in scope, all are responding to the same underlying phenomenon in this health crisis. Prisons, with their large through-flow of prisoners and staff coming in and out on a daily basis, act as ‘epidemiological pumps’ for the spread of COVID-19. Restricting sentencing to reduce those going in has a key function in stemming this flow and reducing the risk of the virus spreading.

The UK government has yet to restrict those entering prison. The need for imminent government action on this back in March was overtaken by events.

Court activity

The restrictions in place to maintain social distancing, cumulating in measures including the pausing of all Crown Court trials, have been in place since 23 March. One result of this decision is far fewer people were sent to prison in the last six weeks than would have ordinarily done so. But the case for reassessing prison sentencing is becoming more pressing.

Reduced activity in our courts has been seismic in recent weeks but – rightly – it is temporary.

In Magistrates’ Courts a small but increasing proportion of trials are going ahead. In evidence to the Justice Committee last week it emerged there were no Magistrate Court trials in the period between the end of March and the third week in April. Two weeks ago 80 trials were listed. Last week there were 197. This compares to around 800 trials a week prior to the restrictions. 

The 'new normal' and the criminal justice system

Crown Courts face additional hurdles in the ‘new normal’. Resuming jury trials presents a specific challenge given the need for ongoing social distancing (and as others have shown, virtual courts do not present an unproblematic solution). Whilst progress in Crown Court business will likely be slower and more uncertain than that in Magistrates’ Courts, the question of how this justice process can adapt given current circumstances is firmly on the table, with a judicial committee now in place to make recommendations in this regard.

Functional courts are in everyone’s interest, essential as they are to an operational justice system. News of an increasing number of courts trials resuming must be a significant relief to the legal profession, sentencers and court staff, who have been rightly praised for their dedication and adaption to new ways of working.

But the increase in court activity must also be greeted with some trepidation by those concerned about conditions in prison - sentencers and members of the legal profession no doubt amongst them: What will the increase in court activity mean for the prison population?

What's happening in prisons?

Overcrowded, deteriorating conditions in the prison estate are a long standing issue. Recent years have seen prison inspection reports which, by their own assessment, document conditions no less than scandalous.

The government’s strategy on managing COVID-19 has imposed a severely restrictive regime on top of this. Twenty-three hours a day in a prison cell, no access to courses, education or activities run by charities or outside agencies, no visits from family and friends, and temporary shipping containers used for confinement. Now these measures are in place, no timeframe for lifting them is in sight.

In the face of this bleak picture sentencers should expect to be supported by clear guidance that responds to this reality. Who and why should we imprison in these circumstances?

An old question but one that surely must have a different answer in these unprecedented times.

Sentencing decisions in difficult times

The Lord Chief Justice has said sentencers can, and in his view, should take into account in their decisions about the use of custody the current conditions in prisons and the ‘heavier’ impact a custodial sentence currently carries. And surely many will do so. But this shouldn’t be a matter left to sentencers’ discretion.

Next week: What are the options for the government to act on prison sentencing in response to COVID-19?

Helen Mills is Head of Programmes at the Centre