Sentencing reform needs to be part of the 'new normal': Part two

Helen Mills
Thursday, 21 May 2020

What are the options for the government to intervene in prison sentencing in response to COVID-19?

In England and Wales, as in many other countries, it has been roundly acknowledged that the number of people held in our overcrowded prison estate needs to be reduced to slow the spread of COVID-19.

Initially Public Health England advised a 15,000 reduction to achieve single cell occupancy. It has more recently modelled for a 5,000 reduction in numbers, on the basis that the Prison Service has adopted a number of other measures to control the spread of COVID-19 including creating 2,000 temporary cells and a highly restrictive prison regime.

Last month, the government suggested up to 4,000 prisoners would meet the criteria of their early release scheme. This was in addition to the 70 imprisoned women pregnant or in Mother and Baby Units that the Ministry of Justice had already announced would be eligible for early release. These remain the only announcements about how prison numbers would be reduced

In evidence at the Justice Select Committee last week, Prisons Minister Lucy Frazer said 81 prisoners had been released thus far. It is in this context, that members of the Committee, amongst others, have questioned the Government’s commitment to these reductions and sought to clarify a clear timetable for when this is anticipated to be met.

Creating 5,000 – 5,500 ‘headroom’ in the prison estate is a target the government is still committed to, according to Frazer. She cited the 3,000 reduction in prison numbers thus far as evidence of the government’s progress in meeting their intentions. But this drop shouldn’t give a false sense of security about the government’s grip on this crisis.

The drop in prison numbers

The most significant factor in the drop in prison numbers to date has been vast court closures due to social distancing restrictions. This reduction has happened in spite of the lack of a meaningful government strategy to manage numbers. The Scottish Prisoner Advocacy and Research Collective (SPARC) make a similar point about the situation in Scotland in their useful analysis of prison reductions there.

The Justice Committee, amongst others, have questioned where this leaves the early release scheme. 

How will the government’s target fare once court activity increases?

Criminal Crown Court trials resumed on Monday at a few of the largest Crown Court buildings. Whilst progress in court activity is likely to be gradual, it will be increasing over the coming weeks and months.

There is an increased risk of a future outbreak in prisons, according to Public Health England, if the numbers coming into prison compromise prison resources. Its advice back in April described:

In the absence of a vaccine or effective treatment, risks of large outbreaks in the prison estate will remain. These risks may be escalated later in the year relating to relaxation of wider community restrictions, some return of normal police and court activities, with consequent impacts on prisoner flow which may exceed capacity of Reverse Cohorting Units.

There are also the implications of the government’s strategy for managing the spread of COVID-19 for conditions in prison. The Lord Chief Justice has said sentencers can and should take into account in their sentencing the restrictive regime currently in place. That:

Those in custody are, for example, confined to their cells for much longer periods than would otherwise be the case – currently, 23 hours a day. They are unable to receive visits. Both they and their families are likely to be anxious about the risk of the transmission of COVID-19.

Sentencers looking for clear guidance from the government about how they should use prison in the context of COVID-19 are likely to find the government wanting.

At last week’s Justice Committee hearing, Lucy Frazer expressed a commitment to achieve ‘headroom in the prison estate’ and to ‘sentence people to sentences handed down’.

This sounds a lot like passing the buck on the vital question of how prisons should be used in this period.

Other countries have already thought about this in their responses. Eleven of our European neighbours have deferred or suspended prison sentences in response to managing the spread of COVID-19, as described in last week’s post.

Intervening in sentencing is not alien to this government. Their manifesto committed them to tougher sentencing. Why do interventions only ever go upwards? Why can’t they intervene to reduce, defer or suspend?

What could the government do?

In terms of decisive action, what could the government do?

Deferring prison sentences – postponing the potential of custody until a future point – is an option. However, deferral raises issues around its practical implementation in a crisis it is now clear is likely to last months and years not days and weeks.

This leaves the option of suspending prison sentences - a custodial sentence served in the community - or of converting sentences of immediate custody to a community based sentence. Here the Ministry of Justice can look much closer to home for guidance.

Last year the department was on the cusp of publishing a green paper to tackle what it had termed the problematically high use of short prison sentencing. It was shelved days from publication. Its release at the time was overtaken by the election of Boris Johnson as party leader and his arrival at Number 10. The then Justice Minister David Gauke, in his final speech in the role, indicated a bar on prison sentences of up to six months and presumptions against those under 12 months was being considered. Perhaps it’s time for the department to dust that report off?

The first stage of the government’s approach to managing COVID-19 in prisons has significantly relied on circumstances. During the second stage, it looks like the government will place heavy burdens on those working in the criminal justice system, sentencers among them. We all deserve better.

Helen Mills is Head of Programmes at the Centre