Is an immediate prison sentence really the only solution for Covid-19 offenders?

In the past week there have been a number of reported prosecutions across the UK in relation to coronavirus related offences, not only breaches of the Health Protection (Coronavirus) Regulations 2020 but of assaults on NHS workers and thefts of personal protective equipment. The court system is treating these offences with the rigour required and sentencing individuals with the purpose to both punish and deter whilst reinforcing to society that offences of this type will not be tolerated.

Over the past week a male was sentenced to 6 months’ imprisonment after he spat at a nurse at a hospital in Merseyside. In an unrelated matter, a male who was seen wandering round his local hospital and broadcasting his visit to Facebook to understand the impact of coronavirus was also sentenced to an immediate custodial sentence of three months. These are the types of prosecutions that we are seeing reported almost on a daily basis and most offenders are being sentenced to immediate custodial sentences in both the magistrates’ court and Crown Court.

In addition to these prosecutions, we are also witnessing the increased pressure the prison system is under in order to contain COVID-19. As of 5 April 2020 the Ministry of Justice confirmed that 107 prisoners had tested positive for coronavirus as well as 7,200 prison staff being absent due to reasons related to the virus and 19 of their staff having tested positive for the virus. The prisons have begun a process of releasing low risk prisoners in the last two months of their sentence as well as those who are pregnant or who are incarcerated with very young children to alleviate the pressures on the system, with a reported 4,000 prisoners being released over the past few days.

The limited number of courts currently sitting across the country dealing with bail applications are also being asked to be lenient when considering bail in order to assist with the problem of overcrowded prisons.

The number of positive COVID-19 cases and COVID-19 related deaths is only expected to increase in the prisons over the coming days and the strain on the prison system is likely to become more overpowering than ever. Should an alternative to immediate custody be considered for those who are being prosecuted for offences to ensure that lockdown offenders do not overwhelm the prison system.

Section 1 of the Powers of Criminal Courts (Sentencing) Act 2000 allows for a deferment of sentence. Both the Crown Court and the magistrates’ court may defer passing sentence on an offender for the purpose of enabling the court, or any other court to which if falls to deal with him, to have regard in dealing with him to –

(a) his conduct after conviction; or

(b) change in circumstances

This is only possible if the offender consents and undertakes to comply with any requirement as to his conduct during the period of the deferment that the court considers it appropriate to impose; and the court is satisfied, having regard to the nature of the offence and the character and circumstances of the offender that it would be in the interests of justice to exercise the power.

Any deferment of sentence under the section shall be to a date fixed by the court, not being more than six months after the date on which the deferment is announced. On this date, the defendant is required to return to court. The conditions are reviewed and it is considered whether a non-custodial sentence will be passed. If the defendant has not complied, or further offences have been committed in this time period, then a custodial sentence is inevitable. If, on the other hand, the defendant has been compliant, a non-custodial sentence is possible.

There is no specific legislation as to the types of requirements that are to be set during the deferment period, and the legislation is drafted to be used for the very limited number of individuals who are given an opportunity to rehabilitate to avoid prison, but in the current emergency it may be that an adjustment could be made to the legislation to enable courts to defer sentences without giving them an opportunity of reparation. An adjustment to simply defer the sentence for a specific time may be the most sensible course of conduct and for the individuals to appear before the sentencing court in a number of months’ time for their custodial sentence to be activated if necessary.

An alternative may be to impose community orders or suspended sentences with an electronically monitored curfew requirement. Section 204 of the Criminal Justice Act 2003 allows for a curfew requirement to be imposed as part of a relevant order requiring an offender to remain, for periods of time in places as specified in the relevant order. A sentence with a requirement which imposes a curfew may not be for longer than 12 months from the day it is made, and may not be for more than 16 hours a day.

At a time where every citizen has their liberty restricted, a stronger deterrent to the wider public than immediate prison would be for individuals to continue to be compelled to adhere to the Coronavirus Regulations at the same time as the rest of the country, whilst awaiting the risk of a custodial sentence being activated and served whilst the lives of others start to return to normal. This may, at first sight, look like a soft option but the reality for most offenders would be a longer period during which they would be subject to a real incentive to rehabilitate and thereby avoid a prison sentence.