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23 June 2020

The Sentencing Council is aware of and understands the concerns that many people have about the effect the Covid-19 emergency is having on conditions in prisons and the potentially heavier impact of custodial sentences on offenders and their families. There are well-established sentencing principles which, with sentencing guidelines, are sufficiently flexible to deal with all circumstances, including the consequences of the current emergency. These principles are familiar to judges and magistrates and were reaffirmed by the Lord Chief Justice when giving the judgment of the Court of Appeal in the case of Manning.[1] The Council hopes this statement will help to clarify the position for those who are less familiar with the principles or not involved in the criminal justice system.

Each case must of course be considered on its own facts, and the court has an obligation to protect the public and victims of crime. Judges and magistrates must make their independent decisions as to what sentence is just and proportionate in all the circumstances of each individual case. By statute,[2] a court must not impose a community sentence unless it is of the opinion that the offence was serious enough to warrant such a sentence, and must not pass a custodial sentence unless it is of the opinion that the offence was so serious that neither a fine alone nor a community sentence can be justified.

In deciding whether a custodial sentence is necessary, a court must follow the approach set out in the Sentencing Council’s Imposition guideline. This guideline requires the court to consider first whether the custody threshold has been passed. It makes clear that even where the court decides that the custody threshold has been passed, it must go on to consider whether it is unavoidable that a custodial sentence be imposed. If a custodial sentence is unavoidable, the court must then decide what is the shortest term commensurate with the seriousness of the offence(s) and must consider whether the sentence can be suspended.

In accordance with well-established principles, the court in answering those questions should take into account the likely impact of a custodial sentence upon the offender and, where appropriate, upon others such as children or other dependents.

This has recently been confirmed by the decision in the case of Manning. At paragraph 41 of the judgment the Lord Chief Justice observed that the impact of the Covid-19 emergency on prisons is well-known, and continued as follows:

“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.

“42. 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.”

Throughout the sentencing process, and in considering all the circumstances of the individual case, the court must bear in mind the practical realities of the effects of the current health emergency. The court should consider whether increased weight should be given to mitigating factors, and should keep in mind that the impact of immediate imprisonment is likely to be particularly heavy for some groups of offenders or their families.

In addition, when applying the Reduction in sentence for a guilty plea guideline, the court must consider the exceptions in that guideline. The exceptions include whether there were particular circumstances affecting the defendant’s ability to understand the allegations or to receive the advice necessary before pleading guilty, or where the defendant pleads guilty to, and is then convicted of, a different offence from that originally charged. In making these considerations, the court must keep in mind the practical difficulties of defendants accessing legal advice during the present emergency.

Lord Justice Holroyde

[1] Attorney-General’s Reference, R v Manning [2020] 4 WLR 77 [2] Criminal Justice Act 2003, sections 148 and 152