Covid and the Penal System

This review reveals some of the ‘behind the scenes’ issues dealt with by the English courts during the Covid-19 pandemic period.

Susanna Menis is a Lecturer in Law at Birkbeck London University, School of Law. She was a member of the Independent Monitoring Boards of Prisons for many years.

News concerning sentencing in the UK during the pandemic period are mixed in tone and expectation. Typical to the media’s lack of restraint in informing the public, we can read headlines such as ‘Criminals handed coronavirus discounts as sentences shortened because of harsh new prison conditions’; and ‘Paedophiles, thugs and drugs dealers have sentences cut because coronavirus makes prisons too harsh’. Other concerns have also been reported, for example that ‘prisoners locked up for 23 hours a day due to Covid rules is dangerous’. The aim of this blog entry is to reveal some of the ‘behind the scenes’ issues dealt with by the English courts during this pandemic period. Some of the prison related concerns that the judiciary came across have been sentencing, prison conditions, release on licence, extradition and early discharge. The following will review the extent to which Covid-19 has affected some of these circumstances.

One of the first stories released by the media at the end of March 2020 was the governmental instruction for early discharge from prison. The conditions for such a release were that the prisoner was of low risk and within two months of their original release date. In the first application for early release that we have a record (6 April 2020), the Queen’s Bench Division made an interesting observation (Chelsea Football Club Ltd 2020). The Court was concerned as to whether the early release scheme might undermine the rule of law. The answer was ‘yes’ in principle, but ‘no’ in practice. It was considered that the scheme was part of a bigger picture of protecting public interests by reducing the burden on the NHS in case of a Covid-19 outbreak in prison. In hindsight, most prisons were able to limit the spread of the Covid-19 first wave, and this was the reason why the scheme was very quickly shelved.

The court also touched on a concern which came up in several forthcoming cases, that is, the balance between more restricted prison conditions and the proportionality of the sentence. It was this that has mainly caught media attention: imposing the lowest threshold of a sentence on individuals which in normal circumstances might not have escaped imprisonment or longer sentences so easily. The restricted prison regimes used to control the spread of the virus meant that prisoners were confined in their cells for longer hours and family visits were not permitted; although similar or worse circumstances were faced by the public, the courts took the pandemic as a factor in determining the suitability of a prison sentence (Manning 2020) – would imprisonment during this period inevitably restrict even more the level of privation of the individual? And should this be taken into consideration?

The courts believed that they should (Manning 2020; Smith 2020; Ranshawa 2020; Khan 2020; Davey 2020); although not without challenge by the Solicitor General (Manning 2020; Gaves 2020; Mohamed 2020; Bastri 2020). Indeed, despite decades of overcrowding, questionable conditions, and doubtful rehabilitative impact on low risk offenders, it is only with the pandemic – ironically, given the safer environment during the first Covid-19 wave – that the courts felt it acceptable to waive a prison sentence and replace it with, for example, a suspended sentence accompanied by any of the range of rehabilitation, prevention and curfew orders. Another eyebrow-raising observation made by the Courts was the rational used to justify a suspended sentence on an offender who ‘posed a high risk to a “known child”’ (Manning 2020); that is, that the curfew imposed was further enhanced by the lockdown forced by the government. Of course, having experienced several lockdowns since, it is clear that the inhibition of this person’s movement would have been but little affected by the lockdown.        

It seems that the courts have started to back down from this reasoning, perhaps because the state of emergency had become the norm by November 2020. However, before this shift took place in England, the Appeal Court in Scotland made its stance clear earlier in June 2020 (HM Advocate, 2020). Accordingly, in the context of the pandemic, coughing in jest justified a longer prison sentence. This court response to the approach taken in England was first, that opting for a suspended sentence instead, and ‘take account of the emergency as a reason for discounting – would only serve to discriminate against those who might have been given a short term sentence before lockdown’. Second, the court thought that by now, prisons had found ways to mitigate the conditions dictated by the pandemic. For example, they were told that Inverness prison was about to implement a ‘virtual’ family visits scheme. It is difficult to tell whether this case had any effect on the English courts as it was only cited once and not in relation to the pointers mentioned above. Nevertheless, since November 2020, the English courts have showed greater reluctance in allowing the initially applied lax approach to sentencing (Strong 2020; Gaves 2020; Mohamed 2020). 

Although apparently less newsworthy but perhaps most significant, the last two questions faced by the courts during this period concerned extradition and immigration bail. The travel restrictions meant that several extraditions had to be postponed. The issue at hand was not so much the longer detention period that followed, but rather what was considered to be an unlawful detention – habeas corpus. The courts clarified that there was no case to answer. The original detention was set by a judge following lawful legal procedures; this was the case also for the order authorising the postponement of the extradition term (Cosar 2020; Verde 2020). Referring to an EU decision on that matter, it was explained by the court that postponing these extraditions was justified on a serious humanitarian reason and that this was a situation beyond states’ control (EU Council Decision 2002/584/JHA Article 23).

Different has been the case for immigration bail. Individuals granted bail from immigration detention to an approved premise had their rights mostly compromised during this period. The lockdowns and social distancing experienced meant that approved premises have struggled to meet the increasing demands– particularly detrimental in cases of immigration. Here, the Home Secretary for the Home Department was delaying removals due to lack of suitable accommodation, leaving people in detention for longer than justifiable. Applications for interim relief to urge action, were framed around the violation of the Hardial Singh principles concerning lawful detention in the context of immigration. The Courts recognised the impact of COVID-19 on these situations stating that it ‘made an already difficult task virtually impossible’ (Mahboubian, 2020); however, it was also stated that the need to avoid false imprisonment was not mitigated by the pandemic (Merca 2020; Ko 2020; CN 2020; Diriye 2020; Tutaj 2020; Mahboubian 2020).

Almost reaching a full year of life under pandemic conditions, initial media focus on punishment and justice is dwindling. Unsurprisingly, attention is now shifted towards crimes committed in the context of Covid-19. Still, in the background, the criminal justice system is facing a real struggle in balancing public interests against individual liberties.

Case reference

Chelsea Football Club Ltd v Nichols [2020] EWHC 827 (QB)

R. v Manning (Christopher) [2020] EWCA Crim 592

R. v Peter James Smith [2020] EWCA Crim 1014

R. v Randhawa [2020] EWCA Crim 1071

 R. v Khan [2020] EWCA Crim 1617

R. v Davey  [2020] EWCA Crim 1448 

R. v Gaves [2020] EWCA Crim 1728

R. v Mohamed [2020] WCA Crim 1745

R. v Basri [2020] EWCA Crim 1218

HM Advocate v Lindsay (Iain) [2020] HCJAC 26

R. v Strong [2020] EWCA Crim 1712

Cosar v Governor of HMP Wandsworth [2020] EWHC 1142

Verde v Governor of Wandsworth Prison [2020] EWHC 1219

R. (on the application of Mahboubian) v Secretary of State for the Home Department [2020] EWHC 3289 

R. (on the application of Merca) v Secretary of State for the Home Department [2020] EWHC 1479

R. (on the application of Ko) v Secretary of State for the Home Department [2020] EWHC 2678

R. (on the application of CN) v Secretary of State for the Home Department [2020] 10 WLUK 85

R. (on the application of Diriye) v Secretary of State for the Home Department [2020] EWHC 3033

R. (on the application of Tutaj) v Secretary of State for the Home Department [2020] EWHC 3579

R. (on the application of Mahboubian) v Secretary of State for the Home Department [2020] EWHC 3289

Susanna Menis, School of Law, Birkbeck, University of London, Malet Street, London WC1E 7HX

Email: s.menis@bbk.ac.uk

Images: Courtesy of author

Reforming the Mental Health Act? A Criminal Justice Perspective

A discussion of the White Paper Reforming the Mental Health Act and what the proposed reforms mean for the criminal justice system.

Megan Georgiou is a postgraduate researcher at the University of Surrey. Her doctoral research explores mental illness in prisons and the ways in which health and justice services are shaped and organised to meet the needs of people in prison with a mental illness. Robert Meadows is a professor in the Department of Sociology, University of Surrey. His research is currently focused on artificial intelligence and mental health and public health responses to sleep.

Published in December 2018, the Independent Review of the Mental Health Act 1983 set out recommendations for government on how the Act required change in both law and practice. The recommendations centred around the notions of modernising mental health services and empowering individuals to have more say in their own care and treatment. It recognised that the way we understand and treat mental health has developed significantly in recent decades, as have public attitudes, however the law has largely remained grounded in a system established in 1959.

The White Paper Reforming the Mental Health Act, published in January 2021, has proposed a range of changes to address the review’s recommendations:

The reforms centre around:

  • Giving patients more control over their care and treatment and promoting dignity and independence.
  • Ensuring the needs of people with learning disabilities and autistic people are better met.
  • Addressing the disproportionate number of people from black, Asian and minority ethnic backgrounds detained under the Act.
  • Ensuring people with a serious mental illness who come into contact with the criminal justice system benefit from the proposed reforms.

It is this last group that we are interested in here, and specifically those in prison. The prevalence of mental health issues in prisons is significant, with an estimated 90 per cent of people aged over 16 years experiencing a mental illness, addiction or personality disorder. Incidents of self-harm and suicide reached record highs in recent years, with the most recent figures reporting 70 self-inflicted deaths in the year to September 2020 and 61,153 self-harm incidents in the 12 months to June 2020. The suicide rate in prisons is around ten times higher than in the general population. The rising number of prison suicides is attributed to cuts in staffing and budgets, too much time in cells, a punitive regime and overcrowding, as well as increased levels of violence and deterioration in safety, and restricted access to rehabilitative activities. Reform is therefore needed. However, is this the reform proposed by the White Paper?

With respect to those in contact with the criminal justice system, the White Paper puts forward the following changes:

  • Continuing efforts to support rapid diversion to mental health care and treatment from court or custody as appropriate.
  • Revising the statutory time limit on transferring people in prison who require treatment in a mental health hospital to ensure they are moved within an appropriate timeframe (28 days).
  • Introducing an independent role to manage transfer processes.
  • Extending the statutory right to an Independent Mental Health Advocate (IMHA) to patients awaiting transfer from a prison or an immigration detention centre.
  • Working to eliminate prisons as a place of safety so that people can be transferred directly from court to a healthcare facility, where they can receive a mental health assessment and treatment under the relevant section of the Act.

These do appear to be useful, necessary and welcome changes. However, it is not clear how they will be achieved. At the very least, if these objectives are to be met the consultation needs to reconsider some of the questions it is asking.

Of most import, it needs to ask, ‘how can improvements be made to the infrastructure to ensure the statutory time limit is managed effectively and patients’ needs are met?’ For instance, in relation to people who require transfer from prison to a mental health inpatient service, existing DHSC Good Practice guidance states that the transfer should take place within 14 days after the first assessment has taken place. Figures from 2016-17 indicate that only 34 per cent of people were transferred in time and 7 per cent of people waited for more than 140 days. The change to 28 days, extending rather than the claimed ‘speeding up’ of the process, does not address the root causes of the initial failures to meet the targets and what needs to be put in place to rectify them. As recognised in a 2008 report, bed occupancy levels and barriers/facilitators to timely progression throughout the secure mental health system must be addressed for the system to function as intended. It also emphasises the need for effective multi-agency working and transfer coordinators to ensure the smooth running of the process.

Further to this, many of the more complex proposals lack detail and clarity as to when they might come into play. Throughout the document there are remarks of “…we will not commence this provision until X is properly embedded” or “…we are not planning to legislate immediately due to X”. It also states that the reforms are subject to affordability and will be subject to future funding decisions, including the Spending Review 2021. Given these uncertainties, perhaps a useful question for the White Paper to ask is ‘how can we convince that we are committed to making meaningful change to mental health legislation, especially within the criminal justice system?”

Ultimately, the proposed reforms are welcome, but it remains unclear whether they can go far enough in addressing the various and multifaceted issues that exist within the criminal justice system in relation to mental health. Significant reform is required to provide people in prison with a package of care that is suitable to their needs and follows them throughout their pathway. Until then, equivalence of outcomes for people receiving healthcare in prison with those in the community will not be achieved.

Megan Georgiou, University of Surrey
Email: m.georgiou@surrey.ac.uk
Twitter: @meggeorgiou

Robert Meadows, University of Surrey
Email: R.Meadows@surrey.ac.uk
Twitter: @RobertMeadows16

Images: Courtesy of authors