The impact of COVID-19 on sentencingNathan Davis
This article reviews two Court of Appeal cases which have considered the effect that COVID-19 can have in sentencing in cases where the custody threshold has been passed. In summary, the cases make clear that the adverse effects the pandemic has had on prison life is a relevant factor a sentencing court can take into consideration in deciding: 1) whether to impose a suspend a sentence; and 2) the length of any immediate custodial sentence.
R v Manning  EWCA Crim 592
This case was referred to the Court of Appeal under the Attorney General’s unduly lenient sentence referral scheme. The Defendant received a suspended sentence of 12 months’ imprisonment, suspended for 24 months, alongside a curfew and rehabilitation activity requirement days. The Defendant had pleaded guilty to 4 counts of sexual activity with a child and one count of inciting a child to engage in sexual activity. Each of the counts related to the Defendant’s conduct in relation to a 15-year-old girl; the Defendant himself was in his late 40s.
The Court of Appeal agreed that the custody threshold had been passed and considered the real issue was whether the sentence imposed should have been suspended – although, they did consider that any custodial term should have be 2 years. The Court held that the sentence should be suspended.
In reaching this conclusion, one of the factors the Court considered was that if an immediate sentence was imposed then the Defendant would have entered the prison environment under lock-down conditions:
“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.”
R v Jones  EWCA Crim 764
The Defendant was sentenced to 8 months’ immediate imprisonment on the 17th March 2020 – 6 days before lock-down commenced – following his guilty pleas to offences of attempted burglary and possession of a Class A drug (there were 6 further offences of theft/attempted theft which were taken into account.
The sentencing judge considered this was a higher end category 2 case and that a starting point of 12 months was appropriate. This was reduced to 8 months to take account of the guilty pleas. The Court dismissed the argument that the sentence was manifestly excessive but did consider that, flowing from Manning, the sentence should be reduced. They noted that the sentencing judge sentenced the Defendant to custody at a time when the same would have been unaware of the greater deprivation an imposition of custody would impose. It was specifically observed that the Defendant would be bound to their cell except for a 30-minute period each day and that they would not be able to receive any social visits.
The Court therefore noted: “that in the present, exceptional, circumstances it is appropriate to take the conditions under which the applicant is presently held in custody into account”. Accordingly, the Court quashed the sentence of 8 months and imposed a sentence of 6 months immediate custody.
Taken together the judgments highlight:
- The altered conditions in prisons during lockdown is a factor that a sentencing court can and should take into account;
- This factor will be relevant in considering:
- Whether to suspend a sentence of otherwise immediate custody; or
- The length of any immediate custody imposed.
It would appear that the consideration of current prison conditions as a mitigating factor will have greatest relevance in cases where any proposed sentence of immediate custody will be relatively low: the argument for those facing immediate imprisonment of a number of years will be of less significance given the (apparent) limited period of restriction this will be to their overall time in custody.
Practitioners should be particularly aware, following Jones, of the need to review sentences imposed prior to lock-down, or that have been imposed during lock-down and where the sentencing judge refused to consider this factor to be of relevance. In such circumstances, the Court of Appeal’s decision indicates that there may be strong grounds for an appeal against sentence.
Given the inherent uncertainty as to when lockdown prison conditions may be alleviated, or return to pre-lockdown conditions, it is likely that these judgments will have continued significance for a significant time.
Nathan is a common law pupil who is currently undertaking his second six.