Keeping clients out of custody during Covid-19 – Practical options available to the Defence
June 2, 2020
Even short sentences during the Covid-19 pandemic can pose a great risk to a client’s physical or mental health. Richard Coker, a leading epidemiologist and emeritus professor of public health at the London School of Hygiene and Tropical Medicine recently described prisons as ‘epidemiological pumps”. He said, “If you set out to create an institution with the express intent of concentrating and transmitting Covid 19, it would probably look much like a prison, especially one as overcrowded as many in the UK”.
This article provides practical options available to the defence in order to try to keep clients out of custody during this time. It will cover the following topics:
- Obtaining bail;
- Opposing CTL extensions;
- Suspending sentences;
- Early release from custody for those convicted.
The defence should be reviewing cases and forming a view on whether a further bail application can be made. Of course, following a client’s second bail application, at subsequent hearings the court, “need not hear arguments as to fact or law which it has heard previously”. A court need only entertain arguments already advanced where there has been a change of circumstances such as to give them a different context.
However, firstly it is of note that it is still within the discretion of the court to hear another application which it has heard previously. It is simply that it ‘need not’ if it so wishes.
Secondly, it is likely that most clients will be able to identify a ‘change in circumstances’ in order to make a further application. In R (B) v Brent Youth Court  EWHC 1893 (Admin) the court emphasised that a change of circumstances need not be anything ‘exceptional’. It could be a new bail address, a change in the case alleged against the defendant, an offer of increased surety or even the passage of time (suggested by some commentators as little as 28 days since the last full consideration of bail).
In relation to the passage of time, many CTLs are being extended as a result of the pandemic. This is something which I will come onto in due course. However, in relation to bail, extensions result in substantial indeterminate extensions to pre-trial remand, that are likely to be longer than what would have initially been envisaged in a Judge’s mind, whenever bail was last refused. This becomes particularly important to the matter of bail where the resulting remand period may be longer than the period of potential imprisonment if convicted.
In the recent Scottish case D (J) v HM Advocate  HCJAC 15, the court held that in the present crisis, it was not known when accused persons were likely to be tried, and the length of time during which a person was likely to remain on remand was a factor which had to be given greater weight than hitherto in deciding whether to grant bail, however, the statutory provisions continued to apply to the refusal of bail.
In the recent case of Hartun v Poland, Unreported 30 April 2020 the defendant was concerned about his personal safety in prison during the Covid-19 pandemic as he had a medical condition which required equipment at night to assist with his breathing. It was held that the risk to his personal safety in prison due to the Covid-19 pandemic was not a freestanding factor for bail. If there were substantial grounds for believing he would fail to surrender, it would not make a difference. However, the risk to his personal safety in prison due to Covid-19 was relevant when considering his personal circumstances and in evaluating the risks if he was released on bail.
The courts have therefore made it clear: if there are substantial grounds for believing that one of the grounds for objecting to bail are met then the defendant will be remanded in custody, whether or not they are vulnerable to Covid-19. However, the courts have also made clear that a client’s vulnerability is relevant to his personal circumstances and in evaluating the risks if he was released on bail. The consequences for a defendant should they breach bail, particularly for those vulnerable to Covid-19, are much more serious than in normal circumstances. They will have often long indeterminate waits in a hotspot for Covid-19, often locked up in their cells for 23 hours a day and without any visits from family and friends. Therefore one could argue the risk of the defendant breaching bail is significantly reduced: the desire to not breach bail has arguably never been greater for clients.
Opposing the Extension of Custody Time Limits
Section 22(3) Prosecution of Offences Act 1985, states that the court can only extend the custody time limit if it is satisfied that the need for the extension is due to:
- the illness or absence of the accused, a necessary witness, a judge or a magistrate;
- postponement which is occasioned by the ordering by the court of separate trials in case of two or more accused persons, or two or more charges; or
- some other good and sufficient cause,
- AND in respect of any of the foregoing the prosecution has acted with all due diligence and expedition.
The Coronavirus Crisis Protocol states the coronavirus pandemic is an exceptional situation and the adjournment of CTL trials as a consequence of government health advice and of directions made by the Lord Chief Justice amounts to good and sufficient cause to extend the custody time limit. The issue has been judicially determined in this way in a significant number of cases and subject to any decision to the contrary on appeal, the Protocol accurately states the approach of the court.
There is therefore very little a client can do at present to challenge that there is a good and sufficient cause. However, what about whether the prosecution has acted with all due diligence and expedition?
The Court of Appeal in Manchester Crown Court ex p McDonald described this test:
To satisfy the court that this condition is met the prosecution need not show that every stage of preparation of the case has been accomplished as quickly and efficiently as humanly possible. That would be an impossible standard to meet, particularly when the court which reviews the history of the case enjoys the immeasurable benefit of hindsight. Nor should the history be approached on the unreal assumption that all involved on the prosecution side have been able to give the case in question their undivided attention. What the court must require is such diligence and expedition as would be shown by a competent prosecutor conscious of his duty to bring the case to trial as quickly as reasonably and fairly possible.
The defence should therefore be reviewing the case and coming to a view about whether the extension could be challenged on the basis that the prosecution have not acted with all due diligence and expedition.
The defence should be striving more than ever for any custodial sentences to be suspended. The guidelines on the Imposition of Community and Custodial sentences are, of course, able to be utilised for this purpose. Strong personal mitigation and the fact that immediate custody will result in significant harmful impact on others are relevant factors indicating it may be appropriate to suspend a custodial sentence.
These factors are given new meaning when the client has, for instance, underlying health issues which make him or her particularly vulnerable to Covid-19. Furthermore, an immediate custodial sentence could have a huge impact upon others during this time. Families are inevitably more isolated and some vulnerable members of the community are highly dependent on others for support. It is therefore worth considering how an immediate custodial sentence for the client could impact on others.
Furthermore, in the recent case of Christopher Manning  EWCA Crim 592 the Court of Appeal confirmed that Judges should keep in mind the impact of a custodial sentence is likely to be heavier during the current emergency. The court stated:
We are hearing this Reference at the end of April 2020, when the nation remains in lock-down as a result of the Covid-19 emergency. The impact of that emergency on prisons is well-known. We are being invited in this Reference to order a man to prison nine weeks after he was given a suspended sentence, when he has complied with his curfew and has engaged successfully with the Probation Service. The current conditions in prisons represent a factor which can properly be taken into account in deciding whether to suspend a sentence. In accordance with established principles, any court will take into account the likely impact of a custodial sentence upon an offender and, where appropriate, upon others as well. Judges and magistrates can, therefore, and in our judgment should, keep in mind that the impact of a custodial sentence is likely to be heavier during the current emergency than it would otherwise be. Those in custody are, for example, confined to their cells for much longer periods than would otherwise be the case – currently, 23 hours a day. They are unable to receive visits. Both they and their families are likely to be anxious about the risk of the transmission of Covid-19.
Applying ordinary principles, where a court is satisfied that a custodial sentence must be imposed, the likely impact of that sentence continues to be relevant to the further decisions as to its necessary length and whether it can be suspended. Moreover, sentencers can and should also bear in mind the Reduction in Sentence Guideline. That makes clear that a guilty plea may result in a different type of sentence or enable a Magistrates’ Court to retain jurisdiction, rather than committing for sentence.
A curfew of nine months was imposed in this case. The restriction on liberty of curfews will be one way to persuade the court that the appropriate punishment can be achieved in a community setting.
Early Release from custody
End of Custody Temporary Release (ECTR)
As a response to the risk of Covid-19 posed in prisons, the Government introduced an End of Custody Temporary Release scheme for a select group of prisoners. This was intended to enable those who met the criteria to be released in order to ease the pressure on the prison service during the pandemic.
A prisoner has to meet three separate criteria in order to be deemed suitable and even if they are suitable, it is within the discretion of a central Offender Management Hub as to whether they are released. There is no right to be released and release can be targeted at specific prisons to relieve particular pressures in relation to Covid-19 or staffing. Those who are eligible and released will be subject to stringent conditions including not to drink alcohol or upload any material on social media.
It was planned that up to 4,000 prisoners would be released under this scheme but so far very few prisoners have been. As of May 15th, only 57 prisoners had been released. This is in stark contrast to France, who from May 15th had released 10,000 prisoners. However due to the extremely wide discretion given to those within the prison system as to when to use this scheme, it is not a programme for which prisoners can apply for nor can appeal against.
It appears that given the shaky start for the use of ECTR, prisons are relying more on the usual Home Detention Curfew, the early release scheme for those serving shorter sentences into the community with an electronic curfew, to reduce prison numbers. The prisoner should apply through their Offender Supervisor.
Compassionate Release on Temporary Licence
The Secretary of State can release prisoners permanently in exceptional compassionate circumstances. If a client believes they meet the threshold for permanent compassionate release they can apply for it on this basis as usual. However, the Secretary of State has decided that the appropriate procedure to consider the release of prisoners on the basis of health conditions or particular vulnerability during the Covid-19 outbreak is through Release on Temporary Licence (ROTL). This is because the release will only be justified for the duration of the Covid-19 outbreak. The scheme for ROTL is by way of Special Purpose Licence (SPL).
If a prisoner believes they should be considered for compassionate release on the grounds of Covid-19 vulnerability, then they can apply for Special Purpose Licence (SPL). This explicitly includes pregnant women, prisoners with their babies in custody and those defined as ‘extremely vulnerable’ to Covid-19.
Prisoners should be assessed against the normal criteria for SPL suitability which includes the need to maintain public safety and the public’s confidence in the justice system. In this context, the risk assessment will need to bear in mind that these releases will be for longer periods than normal SPL and take account of the very unusual circumstances in which the release is taking place – i.e. during a period of lockdown and other measures which could affect risk, compliance and behaviour in the community.
The assessment itself will need to consider the risk to the prisoner’s health, and potentially their life, if temporary release is not granted. This will need to take into account the extent to which their health can be protected by shielding measures in custody, and need to be carefully weighed against the other considerations. Ultimately, it is a decision for the Secretary of State.
Where a prisoner is dissatisfied with a decision either on whether to commence a full risk assessment or on whether to release following the assessment, they may submit a formal complaint via the normal HMPPS complaints process. If the complaint is unsuccessful, the prisoner may submit a claim for judicial review.
The recent case of R. (on the application of Davis) v Secretary of State for Justice  EWHC 978 (Admin) shows the likely approach the Secretary of State will take in these cases during the pandemic. The claimant was a terminally ill prisoner incarcerated at HMP Stocken with a conditional release date of 29th December 2020. He was assessed as a high risk of serious harm to the public in the event of being released. He had a life expectancy of 9-18 months subject to the nature and timing of any medical interventions for his cancers in the interim. The claimant applied for judicial review of the decision to refuse his permanent release on compassionate grounds, an application which had support from the claimant’s GP, a probation officer and the prison governor.
The application was refused by the defendant because there was no clear prognosis of death in the near future (ordinarily under PSO 6000, a life expectancy or less than 3 months is required), the risk the Claimant posed to the public remained high, there was 8 months of his prison sentence to be served, and there were no other exceptional circumstances which merited release.
The Court was unable to determine the matter due to the discontinuance of the claim, however it is clear that the Secretary of State is extremely hesitant to release vulnerable prisoners under the permanent compassionate release grounds. In the first place, the prison will attempt ‘shielding’ and other measures in prison to keep them safe. In the worst cases with the most vulnerable prisoners, they will use ROTL so that the release of the prisoner is only temporary during the pandemic.
The courts and prison system find themselves in unchartered waters. There are clear attempts in recent case law and policy to try and keep the prison population down. Whilst the ECTR scheme has had a rather disappointing and underwhelming impact, that is not the only way in which clients can be assisted during this time. There may be more reasons than you would ordinarily think to submit a further bail application. The ordinary rules in respect of not citing prison overcrowding in a plea in mitigation as a reason to not lock someone up anymore has been temporarily put aside. The defence can and should consider this as part of their plea in mitigation. Furthermore, there are more options available for early release of those convicted. Therefore, rather than waiting for the unknown date at which this will all be behind us, proactive steps by the defence can lead to huge, potentially even life-saving results for the client.
Harriet Lavin is Exchange’s criminal pupil barrister in her second six.