With the disjointed and chaotic response by courts and prisons to the Covid-19 emergency, Benjamin Knight looks at a system that is failing the very purpose for which it exists and posits that there are solutions but they are too politically bold for politicians.

We are all (hopefully) following the Government’s advice about staying home, protecting the NHS and saving lives and many are referring to this as a “lockdown”. Those in the prisons of England and Wales (and all over the world) are experiencing a true lockdown and the consequences are horrific.

As the general restrictions of public movement are restricting the activities of the courts, hearings are being held by video and telephone calls. The main practical problem with that, as with police station attendance, is that courts were slow to act and well-meaning courts started to do things their own way. An odd mish-mash of older versions of video software, mixed and incorrect information for participants, concerns about which hearings will and won’t go ahead have all caused headaches.

The biggest problem, however, is the lack of facilities for prisoners to speak to their lawyers.

I have spoken to several prisons – several have furloughed visits staff and are not even answering the phones – this week. I have been told that staff are worried about order and discipline as tensions mount and those on remand struggle to speak to their lawyers.

One of our local prisons told all inmates that only social visits were cancelled due to Covid-19. This was untrue and, in fact, all visits are cancelled.

Prisoners have access to phones but these are not secure or appropriate for the taking of instructions and there is no facility to have solicitor and counsel in the same call, of course.

The Scottish Prison Service tweeted on 3rd April 2020 (though it appears to have been deleted since) that they had trialled the use of video conferencing for prisoners to liaise with their lawyers but the test had “been unsuccessful”. It was not clear what had failed, however.

Another local prison – one that had done a fantastic job of making in-person visits safe prior to the lockdown – spoke to me of frustration with the Powers That Be. The fairly senior officer at the prison told me that there had just been a meeting in which the prison pushed hard for a simple video system be made available or, ideally, the existing link system should be opened up as had been hinted at by the MoJ last week. Nothing could be done as yet, it seemed.

But Plea and Trial Preparation Hearings (PTPHs) are still taking place. There is no opportunity to take instructions prior to this – especially when indictments are not ready until just before the hearing – and trial dates set. This is filling-up the already-chocablock trial lists and possibly needlessly.

Something has to give. Either laptops in visit rooms or the opening of the videolink system to external users is a must. It is not “simply” a matter of human rights; it is vital to ensuring that the courts pre-coronavirus logjam does not become unsolvable.

Releases from prison are a sensible and necessary step

With three prisoner deaths, a totally unknown number of Covid-19 cases amongst inmates, and a prison healthcare regime that is beyond substandard at the very best of times, we must force the Government and the judiciary to have a rethink about how and why we use prisons.

There is, at the time of writing, at least one petition to the Government with over 20,000 signatories seeking the release of non-violent offenders. Indeed, the prison population this week (w/c 30th March 2020) is done by about 1,100 inmates. That is the largest drop in a very long time. There has been no published policy that might result in this unless it is as a result of a drop in the charging of new offences.

We must start to monitor the offending on bail statistics to see whether there is an increase as plotted against the use of bail. If there is not a commensurate increase in the former, the Government needs to be pushed away from its obsession with locking people up before conviction. It may be a vote-winner for the Right especially but it is expensive; it is dangerous to health; it is an obstruction to the administration of justice; it is ethically unjustifiable when trials are not being heard promptly.

Most criminal practitioners will also have encountered cases when the prosecution has a weak case and will almost certainly have to accept alternative pleas or even offer no evidence but where the defendant is remanded in custody. In that scenario, defendants are wising-up to the fact that this may be an attempt to punish them or keep them “off the streets” without due process. The courts backlog is playing into the hands of this strategum or, at the very least, the impression that this abuse is taking place.

The truth of the matter is that successive governments have tried all sorts to reduce the amount that the CJS costs. The legal profession and the associated agencies have held the system together under siege for far too long and it is arguably just the political bent of the senior end of the professions that has presented definitive direct action to rebalance the CJS.

When you have tried reducing offences charged, cutting legal aid,fiddling the legal aid system to diddle lawyers out of money for work they have done, cutting court sitting days, and selling-off the courts themselves -as well as selling off the infrastructure to contractors of poor quality and with appalling employment practices – you have to accept that the CJS cannot take any more of this.

A true cut to the costs of the CJS would be cutting the numbers of people remanded in custody and those serving prison sentences for non-violent offending. The right-wing press loves to dog-whistle about the cost of keeping somebody in prison but is full of fake fury when it comes to being sensible about who actually needs to be in prison. A bold government needs to change its ways and use the statistics to stand its ground with the press.

UPDATE: as at 6th April 2020, prisons are being allowed to release certain categories of prisoner. The Government states that, “Risk-assessed prisoners who are within two months of their release date will be temporarily released from jail, as part of the national plan to protect the NHS and save lives.”

This move, whilst welcome, is said to be to benefit the NHS, and “brave prison staff”. Heaven forbid that it should also be for the benefit of protecting prisoners who are in a captive situation with poor hygiene conditions and where, in some cases, they are surrounded by the virus and are frightened by the recent death(s) from the virus in custody.

The Government announcement clarifies that, “Public protection is paramount. No high-risk offenders, including those convicted of violent or sexual offences, anyone of national security concern or a danger to children, will be considered for release, nor any prisoners who have not served at least half their custodial term. Additionally, no offender convicted of COVID-19 related offences, including coughing at emergency workers or stealing personal protective equipment, will be eligible.”

This is all perfectly sensible but the news comes with a few interesting observations. Firstly, the rather sinister observation that, “Prisons are moving towards single-cell accommodation as much as possible across the estate – to limit the spread of infection and the number of deaths.” This is not dissimilar to the Dominic Cummings quote about the Government’s indifference to loss of life.

Secondly, it states, “Working with the judiciary to expedite sentencing hearings for those on remand to reduce the numbers being held in custody.” It is this comment that begs a question: if expediting sentence will result in a reduce in numbers in custody, why are those remand prisoners still in custody at the moment anyway?

The truth of the matter may well be that the use of prison for remand of non-violent, non-sexual, non-Covid-related offending is downright irresponsible at present. I suspect that most involved in the CJS privately agree that those remand prisoners ought not be exposed to heightened risk of infection and death due to offences that would likely result in them being release if sentenced today.

Instead of common sense prevailing, we are seeing police forces actively objecting to bail or bail variations in the name of the draconian Coronavirus Act 2020. I have seen three replies/observations from forces stating that bail should be opposed so as not to spread the virus. This is, put simply, nonsense. If the Government had intended to stop people moving house, it would not be a specific exception to the restriction in statute. If the police wish to stand in judgement of what is and is not “reasonably necessary”, they should ask government to give them that power. At present, they do not have it and should not be interfering with people’s liberty on the strength of a misunderstanding of the law.

France has announced the release of some 5,000 prisoners, while in the US state of California alone, 3,500 are being granted early release. Those countries/States realise that being held prior to conviction is not appropriate unless there is a serious risk of significant harm to the public. We should be doing the same.

The Prison Service claims to have “taken decisive action to ensure prisons are complying with social distancing rules and provided alternative means for prisoners to keep in touch with their families after cancelling family visits.” This is not the experience of the many prisoners contacting family and telling them of poor conditions, cramped confinement, insufficient staff to facilitate the reduction in health risks, and woefully inadequate cleaning and hygiene facilities.

The biggest problem of all is the lack of access to legal representatives.

Whilst the courts are determined to progress PTPHs and sentencing, bewildered defendants are either absent from hearings or able to see but hear nothing of the hearings due to poor implementation of virtual courts. This is an abuse of basic rights and I expect that it will be the subject of significant litigation in the future.

For now though, let us remember that prisoners are people and a nation is judged by the way in which it treats those in its prisons.