In this post I analyse some of the contradictions present in the current penal response to Covid-19 in England and Wales, represented in a recent Crown Prosecution Service press release. Coercive criminal law measures which clearly and proportionately penalize those who endanger emergency workers, or engage in fraudulent conduct, may be justified. But civil liberties must be considered on both sides. I challenge the punitive narrative which celebrates sending those convicted of coronavirus crimes to prisons where Covid-19 has the potential to be rampant. The rights to life and health of offenders—put at risk in overcrowded prisons—must also be considered.
‘CPS Brings Coronavirus Criminals to Justice’
On 9 April 2020 the Crown Prosecution Service published a press release: ‘CPS Brings Coronavirus Criminals to Justice’. The title betrays premature condemnation of those suspected of committing Covid-19 related offences. How can one be a ‘coronavirus criminal’ if not brought to justice? In any case the report gives detail of five cases where individuals have been charged and prosecuted for spitting or coughing on essential workers whilst claiming that they have coronavirus (an offence under section 1(1) of the Assaults on Emergency Workers (Offences) Act 2018, or using existing offences of assault and battery, section 1(2)). The maximum sentence for these offences is one year imprisonment, and the press release is keen to advertise that prison sentences have been used liberally in each of these five cases (with one suspended sentence). For example, two defendants who together stole £32.91 from an Alzheimer’s charity box and coughed directly and deliberately on an officer’s face when they were being arrested, were sentenced to a collective sentence of 44 weeks’ imprisonment.
Also identified are four cases where defendants have exploited coronavirus for personal gain, conduct which has surged both in-person and online in the current pandemic. A defendant’s cold-calling of elderly and vulnerable persons, fraudulently representing that he was an NHS volunteer who would deliver medicines for a small fee, resulted in conviction for five counts of fraud and a sentence of 52 weeks’ in prison.
There are examples beyond this press release of beefed up sentences. A defendant who became aggressive, making racist statements in relation to coronavirus in the course of stealing £100 worth of aftershave from a B&M store, was charged with two counts of racially aggravated harassment, two counts of assault by beating and one count of theft from a shop. His sentence was ‘specifically increased’ by one month from 12 weeks to 16 weeks to reflect the racially aggravated elements of his offending.
The Criminal Justice Response
In a time of global pandemic where anxiety abounds, we turn easily to criminal justice system solutions. There is comfort in the familiar. In England and Wales police focus has been slimmed down to deal with only the most serious crimes. Coronavirus-related offences count among these, and have been given the ‘highest priority’. Meanwhile the message is that policing is proactive rather than reactive; anticipatory and risk-focused. The shift is to more creative preventive measures to meet demand for public protection, such as through using smart technologies to increase surveillance. Few could hide their surprise at the use of drones by Derbyshire Police to expose fell-walkers who used the Peak District to exercise. Exercising one’s freedom to exercise is permitted under the government’s lockdown, a point which needed to be freshly made in its follow-up guidance. The greater use of artificial intelligence technologies to enforce quarantines and travel restrictions, or to track the spread of infection is anticipated. The lawfulness of these measures must be established through detailed impact assessments which address necessity and proportionality, and offer intersectional analysis of the distribution of burdens. But there are already reasons to be uneasy about enforcement of these policies in practice. For example, West Midlands Police sets out their policy on the use of drones on their website. There is a link to their self-assessment tool which confirms compliance with the Surveillance Camera Code of Practice, signed off on 2 January 2020. Notably, no data protection impact assessment has yet been carried out. The same document affirms that there has been ‘proportionate consultation and engagement with the public and partners to assess whether there is a legitimate aim and a pressing need for the system’. The need for transparency and rigour when scrutinizing these technologies is pressing and lip service will not suffice.
Meanwhile there is concern to communicate that offenders are being punished, as exemplified in the CPS’ press release. Prominence is given to police activity, enforcement, and the use of hard punishment. While the police emphasise that they are not seeking to criminalise individuals, the interim charging protocol gives highest priority to offending related to coronavirus, to prosecuting these cases, and to seeing the maximum one year imprisonment term being used.
There is a prescience to David Garland’s work when applied to the current pandemic response in England and Wales. Writing in The Culture of Control: Crime and Social Order in Contemporary Society (OUP 2001), Garland identified the transformation of penal-welfarism between 1975 and 2000. He wrote of the new prominence of the penal model, as well as its emphasis on punitiveness, expressiveness and security for the protection of the public. Waning alongside is a welfare model which depicts wrongdoers as socially dangerous; risks to be managed rather than potentially vulnerable persons in need of rehabilitation. The CPS’ labelling of coronavirus-related offences as ‘horrific’ crimes and applauding increases in prison sentences draws some parallels.
Contradictions of the Penal Response in England and Wales
Neglected are the contradictions of the current penal picture in England and Wales, represented in microcosm in the CPS’ press release. The irony is that the celebrated conclusion of sending those convicted of these coronavirus crimes to prisons is exactly where Covid-19 has the potential to be most rampant. The Ministry of Justice released figures on 23 April 2020 which put confirmed cases in prisons in England and Wales at 304 across 69 prisons. 257 prison workers are infected across 59 prisons and at least 3 prison workers and 15 prisoners have died of coronavirus. Reports suspect these figures to be the tip of the iceberg, with a prison population in England and Wales of circa. 81,500 individuals. There have been numerous calls for early release of inmates who pose a low risk (on temporary licence or compassionate release), or inmates who are within two months of their release date. It is deeply concerning that only 17 out of an estimated 70 pregnant mothers identified as low risk have been released to date. Measures to reduce the spread of Covid-19 by ensuring single cell occupancy look increasingly far-fetched. A leaked Prison Service document has revealed a failure to ensure additional population reduction through early release. The numbers in prison, the leaked document reveals, are too high to control the risk of viral spread. Swansea prison currently ranks amongst the worst for over-crowding. A census in February 2020 revealed that its operational capacity is 250 persons, but 436 persons are currently in prison there. The government’s response to date has been argued so unreasonable that the Howard League for Penal Reform and the Prison Reform Trust are now threatening to sue the government. Other European countries, including France, Ireland and Italy have significantly reduced their prison population.
For those who commit Covid-19 related offences—coughing and spitting on key workers; committing acquisitive crimes—censure is communicated through punishment as the deprivation of liberty, in turn jeopardizing their basic human rights. If a concern to limit the spread of infections is indeed a top priority, could the relationship between penal censure and welfare be carefully recalibrated in the current time of crisis?
There is the linked question as to what risk is borne by already disadvantaged members of the population, such as those with mental health conditions, drug dependency, or who are repeat offenders. At least two of the cases cited in the CPS’ press release relate to offenders who breached the terms of their licence or a criminal order. The failed working assumption behind current penal policy is that individuals who commit these crimes have full capacity and control over their decision-making. At a time of global uncertainty, where health and well-being of many is highly precarious, do we need to reappraise how we view and/or enforce ‘coronavirus crimes’ in the light of addiction, poverty and fear itself?
Criminalization and Reassurance: At What Cost?
There is a sociological aspect at play which explains why governments turn to penal policies during crises rather than address structural inequalities. Criminalization, enforcement of regulations through policing, surveillance and penalization are all part of a narrative where being seen to be doing something concrete is celebrated. It is tied to a blame culture, which seeks to minimize risk—however removed—and which condemns ‘deviant’ behaviour. The undercurrents of disadvantage for some are ignored in favour of the sociological need for reassurance of the many via the criminal justice system and the norms it institutionalises. The failure to address systemic issues is not unique to the criminal justice system in the current health crises in England and Wales. For example, systemic issues around access to the government’s furlough scheme reiterate that it is not always the most deserving who receive relief. This replicates structures of vulnerability in the labour market. We see similar in the accumulation of ever-greater wealth of Amazon boss Jeff Bezos while well-known concerns remain surrounding staff welfare.
The CPS’s recent press release seeks to offer reassurance in a time of fundamental instability. But it matters how these coronavirus cases are reported on, as well as how they are enforced in practice. The need to reassure through stringent criminal law enforcement cannot be the sole narrative where it comes at the expense of intensifying risks to the rights to life and health of offenders.
Jennifer Collins, Senior Lecturer in Law, University of Bristol
(Suggested citation: J. Collins, ‘Coronavirus and the Spread of Crime Control’, U.K. Const. L. Blog (28th April 2020) (available at https://ukconstitutionallaw.org/))