The Lord Chief Justice has finally bowed to pressure and announced that jury trials will have to stop until someone comes up with a way of conducting them whilst practising social isolation. The decision is a reversal of the compromise implemented last week which permitted jurors to infect each other as long as it was for no more than 3 days at a time.
The Lord Chief’s new guidance has now been overtaken by events, and in any case the concentration on the risk to jurors and lawyers is something of a distraction from the far greater coronavirus danger now incubating in our prisons.
The flam and flummery of the courts - the wigs, the Royal Crest, the judges adorned with scarlet and purple tippets, the standing and bowing and the Ottomanesque circumlocutions of legal intercourse – have always tended to distract the imagination of court users from the misery and squalor in the cells below. Advocates are taught that they must never mention the consequences of conviction in their closing speeches, as though it were a dirty little secret that might deter jurors from doing their duty. Although the ultimate purpose of many trials is to clear the way for the defendant to spend many years locked in a filthy cell with only a broken toilet and an expectorating sex maniac for company, everything possible is done to put the fact out of their mind.
Even so, lawyers themselves have long been nervous of acquiring jail-house fevers. In the eighteenth century courtrooms were strewn with aromatic herbs while judges were additionally protected by nosegays and sometimes liberal quantities of prophylactic brandy, all designed to protect court users from infection by the criminal classes.
Our prisons have improved a little since then. Nosegays are now confined to the Old Bailey and judges are no longer encouraged to drink brandy during sitting hours, but that part of the penal system that bureaucrats call “the estate” - it makes our archipelago of pustulent penitentiaries sound like a Yorkshire grouse moor - remains a fetid breeding ground for disease. If you take thousands of people – quite a high proportion of whom will be ill already - and lock them up in dirty cells, infectious disease is an ever present risk, as a recent outbreak of tuberculosis at the comparatively well-run Parc prison near Bridgend demonstrated earlier this year.
However, coronavirus will make things far, far worse. Last Friday there were 83,917 prisoners in England and Wales, nearly 1400 more than at the same time last year. We have the highest prison population per head in Western Europe. There is very little that any of these men and women can do to protect themselves from infection. Just as the virus was able to sweep through a cruise liner in a few days, so it is almost certain to infect thousands of prisoners within a few weeks.
According to evidence given by Professor Richard Coker of The London School for Hygiene and Tropical Medicine in a case brought last week on behalf of immigration removal centre detainees (who face similar risks), detention centres are likely to become “epidemiological pumps” increasing the overall incidence of disease. The vastly greater numbers of ordinary prisons all over the country could become a network such pumps, constantly churning infection back into the wider community.
Prisoners have already tested positive for coronavirus. In one Midlands prison a whole wing was put “in isolation” on Saturday after an inmate tested positive. He has been given a mask to wear and told to remain in his room. But that is impossible as his cell does not have even a toilet, let alone hot water or a shower. He has no choice but to use the communal facilities. It seems inevitable that most of the other prisoners on the wing will now become infected, something that will quickly be replicated throughout the country.
To make matters worse, more than at any time in the past many prisoners are now old or even very old: over 13,000 are over 50 and nearly 2000 – almost all men - are over 70. The oldest is an extraordinary 104. Like old men outside prison, and probably more so given their atrocious living conditions, many suffer from medical conditions like diabetes, lung disease and cancer. They have no way of isolating themselves. They are in effect living on death row.
Prison staff are also at huge risk. They will fall ill, their families will fall ill and many will then not be able to work. The ensuing shortage of staff – already stretched to breaking point - can only make already dire prison conditions even worse.
Remarkably we may have something to learn from two countries whose penal policies are not usually held up as models of compassion. Iran, faced with one of the worst corona crises in the world, has released tens of thousands of prisoners, including Nazanin Zaghari-Radcliffe, supposedly temporarily, and the Turkish Parliament is set to approve a law releasing 100,000 prisoners, although “terrorist” offenders, who are mostly innocent and all unfairly imprisoned, are of course not included. Even in the incarceration-addicted USA many states are now planning releases.
As with the spread of the disease itself we can look to Italy to see what is likely to happen to prison discipline in this country if nothing is done. There have been riots in prisons all over the country, sparked by the cancellation of visits (something that the Ministry of Justice has – for good reason – emulated today). Prisons have been set on fire all over the Italy. At least 12 inmates have died.
It is not currently politically possible, and it may not be necessary to release huge numbers of prisoners, but there are some emergency steps that should be taken before disaster overwhelms our own prisons. The heavens will not fall in if prisoners with just a few months of their sentences to run are let out early. There are compassionate reasons to release many elderly prisoners, especially those with serious health conditions. The public would surely understand if many other petty or non-violent offenders were released from relatively short sentences. It is almost certainly too late to prevent the virus ripping through the prison system. With a little imagination and decisive action it may yet be possible to prevent catastrophe.
Matthew Scott is a barrister at Pump Court Chambers