Effect of Coronavirus Lockdown on Electronically Monitored Curfew Conditions of Bail

William Staunton asks: Are We All Being “Punished” by Lockdown and What is the Impact of Lockdown on Bail?

William Staunton

In a recent Crown Court bail variation application, where the issue was a proposed change of bail address, the prosecution objected as is their wont/right. That objection raised an interesting question about how some judges view bail conditions – especially during the covid-19 pandemic.

The matter ultimately for trial was a Section 18 Offences Against the Person Act 1861.

The Defendant had lived at the proposed address, whilst on bail in the same proceedings, without problem.

The Judge kindly anticipated that point and ruled accordingly but then went on to raise a new concern:-

What about the curfew? We are all locked-up at night so why should this defendant have the benefit of a Qualifying Curfew? … He is not being punished by the curfew.”

The defence advocate, clearly taken aback, having not anticipated this judicial intervention, stumbled to observe:-

  1. The public is not absolutely prohibited by lockdown from leaving home between certain hours (e.g. essential nocturnal dog-walking, trip to shops, shift workers, etc).
  2. The Defendant’s bail conditions had been imposed to deal with specific risks identified.
  3. A curfew condition is not intended to punish.

The Judge was steadfast in his approach and ruled accordingly – reducing the hours to less than nine hours per day (therefore a non-qualifying curfew in the event of a custodial sentence).

CPS Guidance on Bail Conditions notes :-

Conditions of Bail should only be imposed in order to address any risk that would be inherent in granting unconditional bail.

In the case of a night-time offender, nocturnal curfews are a useful means of reducing the risk of reoffending, but they are not solely used in such matters and can seek to achieve reduction in other risk factors.

In relation to the “Qualifying Curfew”, if convicted and being sentenced, a defendant is entitled to have time spent subject to an Electronically Monitored Curfew (EMC) taken into account. This only applies if the EMC is for a period of “not less than nine hours in 24 hours”.

Section 240A of the Criminal Justice Act 2003 provides:-

The court must direct the period subject to [qualifying] curfew (EMC) to count as time served.

This appears to be a recognition that those subject to qualifying curfews and who find themselves facing custody upon conviction are entitled to know that the limitation placed on their liberty, by being confined to quarters for over a third of their day, will be taken into consideration by the court. It is not a matter of discretion for a judge. (NB: even though the time must count, it must still be positively ordered to count.)

Punishment must fit the crime

A person facing criminal proceedings is presumed innocent unless proven otherwise. Therefore, periods on remand or subject to stringent bail conditions are not punishment. They are to manage the risk of the defendant whilst in the community.

It is plainly just to all allow such periods on EMC to affect the actual time to be served, if subsequently a custodial sentence is imposed.

Breach of a condition of bail has clear consequences as a court is likely to remand in custody if the breach is proven.   

The general public is not so constrained. The public is not being “punished” by lockdown imposed, as it is, for reasons of public health. This is so, notwithstanding the conspiracy-theorists and self-proclaimed “freedom activists” taking to the streets of late. 

Conclusion

One can understand the Judge’s instinct and sense that the EMC amounted to a “windfall injustice” in the case before him. He should, however, have reminded himself of the purpose of such conditions.

Those subject to EMC can be expected to feel excluded; looking out at the world going about its business/having fun. However, they may feel less deprived due to the national restrictions on those activities, even when not accused of any crime. 

The Court of Appeal has already moved away from the reduction in sentence/stepping back from prison sentences due to the harsh prison conditions in 2020/2021. The oft-cited case of R v Manning [2020] (as well as other cases in that line of authorities) has been limited by a later line of authorities, to make sure that would-be appellants understand that they will not receive “time off” because they were sentenced before the pandemic and have been having a hard time of it since. In fact, Manning really only provides support for a decision to pass something other than an immediate custodial sentence in a case where one might otherwise be expected/deserved.

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