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

A surprising decrease in individual cybercrime victimization amid COVID

American criminologists see a surprising decrease in cybercrime amid COVID-19

Photo of Parti
Photo of Dearden
Photo of Hawdon

Katalin Parti studies cybercrime, victimization, school violence, and sexual violence.

Thomas Dearden studies cybercrime, victimization, white collar crime.

James Hawdon studies cybercrime, online extremism, and runs the Center for Peace Studies and Violence Prevention at Virginia Tech.

The COVID-19 pandemic has radically altered life, killing hundreds of thousands across the globe and leading many countries to issue “stay-at-home” orders to contain the virus. Based on the reports and alerts of crime agencies such as the FBI and Europol, as well as journal articles warning about the rapid rise of cybercrime, we anticipated that COVID-19 would affect victimization rates as people spent more time at home and less time in public. The pandemic may also affect victimization differently depending on the type of crime. For example, street crimes appear to be decreasing while intimate partner crimes are increasing.  We considered a third type of crime: cybercrime. This research is probably the first theoretical consideration of how a pandemic can influence routine activities and the first empirical evidence concerning how cyber routines and cybervictimization have changed after the pandemic.  

Given the well-known relationship between routine activities and criminal victimization, it is likely that COVID-19 will influence victimization rates. As people spend more time at home and less time in public, the convergence of motivated offenders, suitable targets, and guardians upon which criminal victimization depends (Cohen and Felson 1979) is undoubtedly altered. Evidence suggests that street crime rates are declining, as major cities across the US report decreases ranging from 30% to 42% following the implementation of stay-at-home orders (Coyne 2020; Jacobs and Barrett 2020; Shayegh and Malpede 2020). Treating the pandemic as a natural experiment, we investigated how the changes resulting from reduced social interaction have affected the rates of cybervictimization. We compared pre-pandemic rates of victimization with post-pandemic rates using datasets designed to track cybercrime. We found that the pandemic had not radically altered cyber-routines nor changed cybervictimization rates.

Cybervictimization change as routine activities change

The pandemic has resulted in people spending more time online and this would increase the potential victim’s visibility to likely offenders. Indeed, research indicates that the proportion of users who access the internet only from home is positively related to cybertheft victimization (Song, Lynch, and Cochran, 2016). However, simply spending more time online may not necessarily result in a greatly enhanced probability of being victimized because overall time spent online is likely less important than the specific online activities in which one engages. Risky online routines would include surfing the dark web, playing online video games, online shopping, and visiting social media sites would increase the target’s visibility and the offender’s access, and we anticipated that increases in these behaviors would result in higher rates of cybervictimization, as shown in previous research (Bossler and Holt 2009; Bossler, Holt and May 2012; Costello et al. 2016; Hawdon, Oksanen, and Räsänen 2014; Leukfeldt and Yar 2016; Navarro and Jasinski 2012; Reyns, Henson, and Fisher 2011; van Wilsem 2011). Time spent performing other online routines, such as working online or reading the news, may have also increased due to the pandemic, but these activities are unlikely to affect cybervictimization since they would not bring one into “risky” virtual spaces.

We tested cybervictimization on US Census data-based panels

Samples of panels of Americans based on US Census data representing sex, age, race, and ethnicity, were collected pre (November 2019) and post (April 2020) pandemic. In total, 1,109 respondents had usable data in the pre-COVID sample, and 1,021 in the post-COVID-19 sample.

Types of victimizations tested included scams, identity theft, unknown transactions, notification from organizations about data theft, online bullying, online sexual harassment, and malware/viruses. Only one significant difference was found. The post-COVID-19 sample reported fewer notifications by companies that their data had been stolen (χ2=7.97(1), p=.005). In the pre-COVID-19 sample 21% of respondents indicated they had been notified by a company about data loss whereas in the post-COVID-19 sample only 16% indicated they had been notified by a company about data loss. We also examined differences in self-protection measures use in the pre/post-COVID-19 samples using similar chi-squared tests. Only one significant difference was found. While 70% of the post-COVID-19 sample indicated that they used virus software or firewalls, only 66% of the pre-COVID-19 reported that they did (χ2=3.97(1), p=.046). To see the differences in computer behaviors between the samples, we compared pre-COVID-19 and post-COVID-19 computer-related activities. These activities include playing online games, reading news or other articles online, browsing social media, using a computer while working, and shopping online. Only one activity, reading news or other online articles was significantly higher in the post-COVID-19 sample (t=-4.4(2093), p<.001).

In order to examine whether the chances of victimization changed due to changes in daily routines (e.g. working from home), we conducted negative binominal regression. Factors significantly related to lower risk of victimization included time working on a computer (IRR=0.95; p < .005) and all protective behaviors including covering a webcam (IRR=0.70; p < .001), having identity theft protection (IRR=0.78; p < .001), freezing credit (IRR=0.53; p<.001), and having virus protection (IRR=0.74; p<.001). It is worth noting that the COVID index variable was not significant, meaning the post-COVID sample did not affect victimization risk.  

Based on our results, the stay-at-home orders did not radically alter our (risky) cyber-routines, and cybervictimization did not increase. Instead, levels of cybervictimization were nearly identical pre and post-pandemic, and only one type of victimization (being informed that your identity or private information had been stolen) changed; but, contrary to expectations, it decreased in the post-COVID-19 sample. Among the indicators of cyber-routine activities, including playing online games, reading news or other articles online, browsing social media, using computer while working, and shopping online, only reading news or other online articles increased. One online activity, online shopping, even decreased in the post-COVID-19 sample. Among all the specific victimization variables, only one showed a significant difference: there were fewer notifications from companies concerning data theft in the post-COVID-19 sample. In terms of target-hardening behaviors, participants reported using more self-protection (i.e. virus software and firewall) in the post-COVID-19 sample.

Like us, the FBI anticipated that virtual environments will be increasingly affected adversely by cybercriminals (Cimpanu 2020; England 2020; IC3 2020). Research shows a growing level of cybercrime. Cybercrime rates demonstrate steady increase independently of the pandemic (Miró-Llinares & Moneva, 2019). According to Buil-Gil, Miró-Llinares, Moneva, Kemp & Diaz-Castaño (2020) especially online shopping and social media hacking-related victimization increased during the pandemic in the UK. Our research reflects another picture: US individuals sheltering in place in Spring 2020 did not experience more cyber victimization. In some cases, such as getting notifications from companies of identity theft, cyber victimization even decreased.

According to our data, daily routines (Cohen and Felson 1979) have to do with this surprising outcome. People applied more technical protective measures such as firewalls and virus software (capable guardians). Individuals stayed at home together with their families, and other than their daily work done online, likely through their employers’ relatively safe networks, and reading news articles, they did not increase their risky online behavior.

The data might refer to the usual discrepancies between official crime statistics relying on reporting and victimization surveys. The heightened awareness of cybersecurity incidents would then lead them to notice and report these crimes more than they did prior to the pandemic. Another possibility is that the increased rates of reporting to the FBI are more due to attacks on companies than on individual users. It is indeed suggested by official cybercrime reports that under the pandemic, cybercriminals shifted from individuals to governments and critical infrastructures. A further possible explanation is that people focus on their work and related tasks when on the computer and spend more time with their families or caregiving responsibilities. 

Reference

‪The full paper is published here: Hawdon, J., Parti, K., Dearden, T. (2020). Cybercrime in America amid COVID: Initial results of a national experiment, American Journal of Criminal Justice, 45, 546—562; and can be accessed in the PMC COVID database here: https://lnkd.in/dRTv4zc

Contacts

Katalin Parti, Assistant Professor, Virginia Tech

Email: kparti@vt.edu

Thomas Dearden, Assistant Professor, Virginia Tech

Email: tdearden@vt.edu

Twitter: https://twitter.com/deardent

James Hawdon, Professor, Virginia Tech

Email: hawdonj@vt.edu

Twitter: https://twitter.com/cpvp_org

Images courtesy of the authors

After the Pandemic: Criminology and Social Harm after Covid-19

We are in the extraordinary position of being able to observe the genesis of change that is affecting all aspects of our social world

ADiaper

Andy Diaper MA (Crime and Justice) works with vulnerable and excluded people within the community. His research interests are what he calls ‘street life’:  Homelessness, drug dependency/dealing, street drinking, sex work and people who for a variety of reasons enact most of their lives on the street.

 

We are living in exceptional times as Covid-19 appears to be running out of control throughout most of the world. The death toll rises daily at a frightening rate, the fear and tragedy touches everyone’s lives. It feels ever more difficult to get clear and trustworthy information as scientists and politicians in England and indeed from around the world give out contradictory statements. Globalisation has never felt more real or terrifying.  How do we keep ourselves and loved ones safe? Will life ever return to ‘normal’ again? Our collective ontological security is fast slipping away.

Is this a good time to contemplate change? Or to begin planning future research whilst we are surrounded by so much death and pain? The short answer is yes but care and empathy are called for. We are in the extraordinary position of being able to observe the genesis of change that is affecting all aspects of our social world. It is far too early to speculate what changes will occur in the long term but that should not stop tentative exploratory work being carried out now. What better time to start collecting data such as ethnographic inquiry, diaries, collating statistical information now be it false or accurate, the truth can be looked for later.

It is a time of thinking out loud, time to look for the questions to ask, not a time to formulate answers. Perhaps the best way of achieving this is in the form of blogging and social media as opposed to the more formal academic paper. This is also an effective way of reaching a wider audience because of this it is also important to write in an accessible way. Greater reflexivity is required to place us within the research, the epidemic will have touched all our lives. It can be argued that for too long criminology has produced important work deserving of better dissemination, but never gaining the wider recognition it deserves. We are on the cusp of the ‘new normal’ it is an opportunity that cannot be missed.

There has been much speculation on the value of social science during Covid-19. It has been argued that the only science of value concerning the pandemic is medical or related fields such as epidemiology.  This may well be true at the most fundamental level in saving lives and understanding the nature of the virus. The function of the virus is to find hosts to make reproduction possible. However, how the virus can move through populations, who is most vulnerable and at risk is very much the domain of social sciences.

So where does criminology come into play?  At the simplest level it can be seen to fulfil two functions. Firstly, the study of the introduction of the new  ‘The Coronavirus Act 2020’  (2020, Act) and the scope of the effects on our civil liberties. The 2020 Act touches on many aspects either by amending existing statutes or creating new ones. These changes affect many facets of our lives removing some fundamental freedoms: one being the power to restrict public gathering or to prohibit them entirely. It can be argued that when emergency powers are introduced  they can often outlive the original phenomena. Leading to the danger of using the legislation in ways that the Act was not originally created for. There is also the examination of the effects of Covid-19 on crime in general for example the rise in domestic abuse and how some volume crimes appear to have decreased. It will be a time to revisit how we theorise crime.

Secondly there is the social harm perspective to the pandemic. It should be remembered that a zemiological perspective can be used to analyse crime as well as social harm. David Downes famously stated that criminology was a rendezvous discipline and as such zemiology should now be embraced in the same way as sociology or social psychology to give two examples. This is not the place to put a full argument forward on whether it should become a discipline or not. At the time of writing this piece the four nations of the UK are beginning to lift the lock down incrementally. Business and schools  are being urged to re-open despite concerns from elements of the public, press, opposition MP’s and scientists.  On the effect this may have in creating a second spike to the virus, we cannot predict the future, but we can prepare the groundwork for future research. At this time, we do not know what effect this lifting the lock down will have on people’s lives. However, it is not difficult to speculate if this lifting is too early and a second spike is created the devastation could be horrific. It is already tentatively coming to light that the pandemic has affected the vulnerable in society the most. The elderly in care homes, those in poor housing and the lowest paid doing the most dangerous jobs with insufficient protective equipment. Social harm has already occurred, but it could become far worse. It is the time to begin to gather the evidence to build future research even if it does feel very ‘raw’ now. It is also a good time to consider Engels concept of ‘social murder.’

As was said at the beginning this piece contains no answers only questions. By beginning the process when many are struggling to simply get by daily is a big ‘ask’. However, by formulating the questions whilst the pandemic is still all around us, we will form better questions, leading to better research and who knows, answers to better understand and control future disasters.

I will finish on a famous saying from a 1980’s American cop show ‘Hill Street Blues’

‘Let’s be careful out there’

Contact

Andy Diaper, Independent Researcher

Email: Andy.diaper@btinternet.com

Twitter: @andy_diaper

 

Images: courtesy of the author