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

In Search of Respect

Gabrielle Watson’s first book, Respect and Criminal Justice, has been published by Oxford University Press.

Gabrielle Watson is the Shaw Foundation Fellow in Law at Lincoln College, Oxford. She was formerly a Leverhulme Early Career Fellow in the Faculty of Law and Postdoctoral Research Fellow in Law at Christ Church, Oxford. She works on topics at the intersection of criminal law, criminal justice, and jurisprudence.

My first book, Respect and Criminal Justice, was published in 2020 by Oxford University Press. It is the newest addition to the Clarendon Studies in Criminology series: the successor to the Cambridge Studies in Criminology series, inaugurated by Sir Leon Radzinowicz—the ‘founding father’ of British criminology—and JWC Turner 80 years ago.

The book offers the first academic study of ‘respect’ in criminal justice in England and Wales, where the value is elusive but of persisting significance. Its publication is especially timely in this political moment, as we reflect on the stark, seemingly intractable problems of police misconduct and deep structural racism, as well as the ongoing threat of COVID-19 and viral contagion in our prisons. Part of the push for criminal justice reform must involve the simple act of listening, followed by the search for robust theoretical ideas with which to frame the debate. In this piece, I reflect on the role and value of respect in prisons.

Owing to some sustained—but ultimately unsuccessful—reform efforts in recent decades, prisons regularly appeal to the word ‘respect’, proclaiming it as a core value in official discourse. Yet, on closer examination, the modern prison’s relationship to respect is not as clear-cut as institutional documentation would have us believe. 

In prisons, respect is a mere slogan. The real value and potential of respect as a critical and regulative ideal has been diminished by the tendency to treat it as peripheral to practical concerns such as target setting, the maintenance of order, and deterrence.

What is respect?

The book begins by attending to the deceptively simple question: what is respect? It turns first to philosophy with its rich Kantian literature on the issue, and its core claim that every human being has a claim to respect no matter what: respect need not be negotiated and cannot be forfeited. But contemporary philosophical accounts complicate matters by identifying respect in a number of ways: as a mode of behaviour, a form of treatment, a kind of valuing, a type of attention, a motive, an attitude, a feeling, a tribute, a principle, a duty, an entitlement, and a moral virtue.

If philosophers cannot agree, it should come as no surprise that prisons in England and Wales—notoriously pragmatic in their approach—have glossed over the meaning of respect. Yet empty appeals to respect distort as much as they communicate. When there is a lack of specificity in understanding and giving effect to respect, it does much to magnify the status inequalities that have come to define imprisonment. It also shows scant regard for the fact that respect—or lack thereof—tends to be felt more keenly by ethnic minority groups and those whose sense of belonging and social possibility in society are precarious.

As part of a reform agenda for the 2020s, prisons must be explicit in their definition of respect if they are to proceed according to—let alone realise—the value. My book offers some suggestions: among them, the idea that respect is both an act and an attitude, that it is ideally reciprocal, that it occurs at both the individual and the institutional level, and is the primary means by which to acknowledge an individual’s intrinsic worth.

Unsavoury punishment

To write a book on respect is an ambitious task, and I spend a good deal of time boundary-drawing in order to render it manageable. Perhaps the most striking illustration of respect—or lack thereof—in the book is to be found in a case study of prison mealtime from the eighteenth century to the present day.

The ritualised preparation and provision of prison food is imbued with considerable symbolic power, and its pivotal role in shaping the daily prison experience has been considerably understated. The dominant narrative in historical accounts of prison mealtime is that, pre-twentieth century, food was intended to punish, debilitate, and degrade. The eighteenth century may have epitomised the most indecent of prison conditions, where a restricted diet was an explicit feature of punishment. Part of the reformative work of John Howard was to offer an incisive critique of the practice of charging prisoners for meals, proposing instead that they be provided with a daily allowance of food. Nonetheless, his vision for respect was strictly minimalist:

‘I am not an advocate for an extravagant and profuse allowance to prisoners. I plead only for necessaries, in such a moderate quantity, as may support health and strength for labour.’

John Howard, The State of the Prisons in England and Wales, with Preliminary Observations, and an Account of Some Foreign Prisons (1777: 33).

By the beginning of the nineteenth century, the experience of imprisonment remained unimpeachably severe. Prison meals had seen no real improvement and consisted chiefly of bread and thin gruel or broths. There was cause for cautious optimism, however, following the introduction of prison inspections in 1835. Prison diet became a national scandal and inspectors made an explicit call for food to no longer act as an instrument of punishment. Advances were made in the quantity—if not the quality—of prison food but an instrumentalist line of thought endured, in part, due to widespread public support for a retributive approach and the prevailing conservative ideology of the period.

By the mid-nineteenth century, prison food had once again been called into question, with leading physicians of the time recommending a substantial reduction in portion sizes on the grounds that the food provided was excessive and insufficiently penal. To provide food sufficient to ensure good health would be to provide conditions of relative comfort, and the extremely poor with a positive incentive to commit crime.

Integral to more progressive developments was the commissioning of a Departmental Committee on Diets and the publication of its report in 1925 (289-292). Following the Committee’s investigation into prison food, the motivation to provide a nutritious diet to inmates was firmly established. The following year, the Committee made further calls for a more balanced and varied diet which included the provision of regular vegetables, the replacement of prison ‘cans’ with aluminium trays and utensils, and opportunities for prisoners to dine in association in the hope that it might cultivate in them a sense of self-respect. These reforms were indicative of a newly configured relationship between the state and its subjects, and a sustained attempt to afford prison mealtime a visibility and form that brought it into line with a society that considered itself to be civilised.

In the decades that followed, prison mealtime was visibly transformed. Prisoners were given increased involvement in menu design, and meals were gradually made available to those with religious, ethnic, cultural, and medical requirements. However, there is compelling evidence to suggest that, in prisons in England and Wales, food—if only implicitly—continues to form part of a penal strategy. Subtle institutional attempts at degradation through food persist, and daily meals serve as painful and periodic bodily expressions of the power that the institution exerts over the individual.

The National Audit Office, for example, noted concerns among prisoners that standards for the storage and preparation of ethnic and cultural food were not met consistently. It seems that prisoners’ lack of trust in this regard was not unfounded. The National Audit Office confirmed several cases in which prisoners had signed up in good faith to receive ethnic meals, which were later found to have been unethically prepared. Four out of sixteen prisons did not store halal meat separately from other meat and, in eleven prisons, kitchen equipment intended for those with Muslim diets was not labelled separately: by no means a peripheral problem in view of the expanding Muslim community in detention in England and Wales.

Such incidents make clear that, in practice, respect is not always reciprocal, whereby prisoners do not—even cannot—respect those responsible for preparing their food. When prisoners are denied ethically prepared ethnic meals, they are likely to become too distracted by the conditions of their confinement to respond respectfully to prison authorities who so unethically denied them respect.

The elusive promise

On 11 July 2018, HM Inspectorate of Prisons for England and Wales published its Annual Report, in which it documented two unannounced inspections that caused deep concern. HMP Wormwood Scrubs suffered from ‘appalling’ (p13) living conditions, violence, an almost complete lack of rehabilitative or resettlement activity, and seemingly intractable problems over repeated inspections. At ‘squalid’ (p5) and fundamentally unsafe HMP Liverpool, inspectors found some of the worst conditions they had ever seen. An impoverished regime, many cells lacked even the basic requirements for health and hygiene and the leadership and management focus on respect was ‘inadequate at every level’ (p15). It appears, then, that respect remains somewhat of an elusive promise.

Although respect is a precious commodity, in our prisons, it need not be utopian. It simply requires a degree of mutual understanding when it is owed to, called for, deserved, elicited, or claimed by another. With a sense of modest realism, the book sets out those challenges in detail—and envisages the advances that could be made—in inscribing respectful relations between state and subject.

Respect and Criminal Justice (2020). Oxford and New York: Oxford University Press. 256 pp.

 

Contact

Dr Gabrielle Watson, Shaw Foundation Fellow in Law, Lincoln College, Oxford.

Email: gabrielle.watson@law.ox.ac.uk

Website: www.law.ox.ac.uk/people/gabrielle-watson

 

Images courtesy of the author

 

Women, History, Invisibility and Prisons

Historical records evidence that the development of female prisons is closely related to the development of male prisons; however, denying a history of female prisoners in its own right fosters a stagnation in the discipline.

S Menis

Women, History, Invisibility and Prisons: A contribution to the Women’s History Month

Susanna Menis is a Lecturer in Law at Birkbeck London University, School of Law. Her recent book provides a revisionist prison history which brings to the forefront the relationship between gender and policy. It examines women’s prisons in England since the late 18th century to the beginning of the 20th century.

Historical criminology research on prisons in England comes across as genderless. Yet, these histories reflect the story of male prisons (Naffine, 1997) – not least because, there have been many historical records to draw upon. When we say the ‘invisibility’ of female prisoners, it is meant to suggest that the experiences and needs of women have been ignored. Many have argued that prisons are ‘a man’s world; made for men, by men’, and as a consequence, women have been subjected to regimes designed to deal with the needs faced by the larger prison population, that of men (Heidensohn and Silvestri, 2012; Priestley, 1999; Heidensohn, 1985). When attempts are made to examine the history of female prisons, because, as put by Zedner (1994:100) ‘to suggest that they [women prisoners] were simply “not foreseen” is patently implausible’ – requests are made for comparative analysis (Garland, 1993; Wiener, 1993). It is this sort of intellectual chastisement that has fostered the reproduction of theoretical frameworks shaped upon ‘a masculinist vision of the past’ (Spongberg, 2002:3).

The historiography of women in prisons in England is small (e.g. Smith, 1962; Heidensohn, 1985; Dobash et al., 1986). These (hi)stories however, have used at face value traditional and/or revisionist prison historiography to contextualise the history of female prisons: hence, failing to reclaim women’s subjectivity to a great extent (with the exception of Zedner, 1994). Instead, historical primary sources evidence that despite their small numbers in comparison to men, penal policy was as concerned, proportionally, with female prisoners as it was with the male prisoner (Menis, 2020).

The discourse of the invisibility of female prisoners has lots to do with the taking at face value, the (hi)stories told about the separate and the silent systems. These were prison regimes imported from America in the 1840s because they were financially convenient, requiring minimal contact with the prisoner. They were adopted inconsistently and interchangeably, initially, in the three national penitentiaries: Pentonville, Millbank and Brixton (Menis, 2020). We know lots about these regimes, because volumes have been written on them. However, what is missing from such narratives is that the few women sentenced to the national penitentiaries were subjected to a specific female-version of the regime; also, the majority of women, because of the nature of their offence, were sent to local prisons, where the two American prison regimes were applied unsystematically.

Social reformers such as Mary Carpenter, clearly acknowledged the importance of having in female prisons a different penal regime than in male prisons because ‘there is a very great difference between the inmates’ (1864: 207). Partly, this was informed by the understanding that imprisonment for women was recognised as a hindrance to social integration and the regaining of respectability for work and marriage purposes. Indeed, female convicts were transferred, towards the end of their sentences, to Fulham Refuge. This was aimed at ‘erasing the considerable stigma of being recognised as a female ex-convict’ (Zedner, 1991:171). As explained by Fulham Refuge’s governor, they hoped that people who might be intimidated by the idea of employing female ex-prisoners could ‘be induced to take them from a benevolent institution such as a refuge’ (Revd J.H. Moran (1854), quoted in Zedner, 1991:182). Also Du Cane (1885:170) considered that ‘these “refuges” were not prisons either in appearance or in discipline—they were homes and intended to afford the advantages of a treatment approaching in its characteristics to that of home influence’. However, from 1888 Fulham was reinstated as a ‘prison’, and for the next eight years female convicts were accommodated only in Woking prison; from 1896 it was only Aylesbury prison housing the small numbers of female convicts: on an average day in 1897, 202 women were recorded as present, having the yearly average reception standing at less than 50 (Report of the Commissioners of Prisons and Directors of Convict Prisons for the year 1896-1897, 1897:10, 43).

Most women, however, were sent to the 65 local prisons around the country. The second Prison Commission report for 1879 and Susan Fletcher’s memoir (1884) provide a valuable insight into the regime applied in these local prisons. By the end of 31 March 1879, only 63 prisons also housed women, and only Westminster gaol was a female-only prison. These prisons could have had a daily average population of as few as one woman (e.g. Southwell) and as many as 500 women at one time (e.g. Westminster and Liverpool). The Report tells us that only Lancaster goal employed women in gum breaking and cotton picking; otherwise, policy informed by (as we identify it now) stereotypical understanding of femininity and womanhood, meant that female prisoners were subject predominantly to employment in housekeeping. Susan confirms that also later in the century, the ‘hard labour’ she was sentenced to was ‘rather a myth’; as far as she was concerned, she ‘did a little knitting’ because she liked it, ‘but not an hour’s hard labour during the twelve months’ (1884:337).

Historical records evidence that the development of female prisons is closely related to the development of male prisons (Menis, 2020); however, denying a history of female prisoners in its own right fosters a stagnation in the discipline. The uncritical assertion of women’s ‘invisibility’ has led researchers to neglect the contribution of policy specifically concerning the female prison population in the shaping of mainstream prison policy. However, let us not confuse ‘bad’ with ‘different’; prison regimes have left much to be desired for, whether you were (are) a man or a woman. When first arriving to Westminster gaol, Susan Fletcher was faced with the ‘filthy horrors of the reception’. She describes in her memoir how ‘all wash from one tank, and wipe on one towel, and the poor women, wild with grief, or crazy with delirium-tremens, are screaming in the reception-cells’. Despite still being served bacon and beans during her stay (in 1879 the Prison Commission requested for these items to be removed), Susan thought that the food was not nutritious; her ring, which ‘fitted so tightly’ when she had just arrived to prison ‘came off very easily’ after only a week in custody. While waiting to progress to a position of trust (e.g. work in the kitchen and laundry), Susan had to spend 23 hours of the day in her cell. In that regard, she said (1884:320-1, 329):

A saint might grow more saintly by such a discipline, perhaps; but even a saint’s body could hardly get more healthy. Common men and women, social beings, with all their best instincts unsatisfied and blighted, must be made worse in every way by such unnatural conditions.

Women’s History Month raises awareness by documenting, acknowledging and celebrating women’s lives; it is about reclaiming historical ownership for experiences which have been kept muted. To find out more including relevant events:

Women Making Waves https://www.rmg.co.uk/see-do/women

Alternative arts http://www.alternativearts.co.uk/womens-history-month/4581216304

Women’s History Network https://womenshistorynetwork.org/

 

References

Carpenter M (1864) Our convicts. London: Longman, Vol 2.

Dobash RP, Dobash ER and Gutteridge S (1986) The Imprisonment of Women. Oxford: Basil Blackwell.

Du Cane E (1885) The Punishment and Prevention of Crime. London: Macmillan and Co.

Fletcher SW (1884) Twelve months in an English prison. Boston: Lee and Shepard.

Heidensohn F (1985), Women and Crime. London: Macmillan.

Heidensohn F and Silvestri (2012) Gender and Crime. In Maguire M, Morgan R, and Reiner R (ed.) The Oxford handbook of criminology. Oxford: Oxford University Press, 5th edn, pp.336-361.

Menis S (2020) A History of Women’s Prisons in England: The Myth of Prisoners Reformation. Newcastle upon Tyne: Cambridge Scholars Publishing.

Naffine N (1997) Feminism and Criminology. Cambridge: Polity Press.

Rafter NH (1983) Prisons for Women, 1790-1980. Crime and Justice 5: 129-181.

Priestley P (1999), Victorian prison lives. London: Pimlico.

Smith A (1962) Women in Prison. London: Stevens & Sons.

Spongberg M (2002) Writing Women History since the Renaissance. Palgrave Macmillan.

Zedner L (1994) Women crime and custody in Victorian England. Oxford: Clarendon Press.

Second Report of The Commissioners of Prisons (1879). London: HMSO.

Report of the Commissioners of Prisons and Directors of Convict Prisons for the year 1896-1897 (1897). London: HMSO.

 

Contact

Susanna Menis, School of Law, Birkbeck, University of London

Email: s.menis@bbk.ac.uk

 

Images: courtesy of the author and permission given by artist, for Woman in a cell © Noriko Hisazumi 2019