Coronavirus: Protecting those in custody through temporary or early release

By  |  16.04.2020

The current Coronavirus pandemic has touched all our lives, but those with loved ones in prison will be especially concerned given the ability of such a virus to infect large numbers of people at speed who are in closed quarters. Social distancing for staff and inmates is a losing battle for those in prison.

The World Health Organization identified early in the pandemic the threat posed to those in prison:

‘The very fact of being deprived of liberty generally implies that people in prisons and other places of detention live in close proximity with one another, which is likely to result in a heightened risk of person-to-person and droplet transmission of pathogens like COVID-19.’[1]

According to the Prison Governors Association, official advice says ‘15,000 prisoners would need to be released to safeguard other inmates and prison staff.’ [2]

Clearly there is a willingness for suitable candidates to be released from prison to protect staff and other inmates.

Temporary release

Under the Prison and Young offender Institution (Coronavirus) (Amendment) Rules 2020, which came into force on 6 April 2020, there is provision for temporary release during the coronavirus pursuant to Rule 9A.

Any application will be on a case by case basis, but the following factors are likely to assist the application:

  • Underlying health issues.
  • No threat to the public.
  • No history of failing to comply with court orders.
  • Ability of the family of friends to put forward strong conditions for release such as cash security, surrender of travel documents and offer of a suitable property for house arrest.

In addition to temporary release there is also the possibility for early release on compassionate grounds.

Early release on compassionate grounds

The Secretary of State has the legal authority to grant early release on compassionate grounds under section 248(1) of the Criminal Justice Act 2003, which provides:

“The Secretary of State may at any time release a fixed-term prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner’s release on compassionate grounds.”

The fundamental principles underlying the approach to early release on compassionate grounds are:

(i) the release of the prisoner will not put the safety of the public at risk;

(ii) a decision to approve release would not normally be made on the basis of facts of which the sentencing or appeal court was aware; and

(iii) there is some specific purpose to be served by early release.

Sonn Macmillan Walker has already taken instructions from inmates and their families concerning early release. If you are anxious about a family member in prison and you think that they may be eligible for temporary or early release, please contact us urgently to discuss.


[1] ‘Preparedness, prevention and control of COVID-19 in prisons and other places of detention’, WHO Interim Guidance, 15/03/20, p.2

[2] ‘Coronavirus: prison (England and Wales)’; House of Commons Briefing Paper (no.8892), 08/04/2020, p.3

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