Courts should consider coronavirus emergency when sentencing, rules Court of Appeal

12 May 2020 by Samuel March

Manning, R. v (Rev 1) [2020] EWCA Crim 592 (30 April 2020) — judgment here

On 30 April 2019, giving the lead judgment in the Court of Appeal, the Lord Chief Justice considered that the impact of a custodial sentence is likely to be heavier during the coronavirus pandemic than it would otherwise be, and that this was a factor that judges and magistrates can and should keep in mind when sentencing.

Background

The offender in this case had entered a guilty plea to four counts of sexual activity with a child, contrary to s.9(1) of the Sexual Offences Act 2003 (counts 1 to 4 below), and to one count of Causing or inciting a child to engage in sexual activity, contrary to s.10(1) (count 5 below). At the relevant times the victim was fifteen and the offender was 47. The offender met the victim through playing darts together, but their friendship turned sexual when he:

1. kissed the victim four or five times at social club;
2. kissed and touched her breast at a second meeting;
3. kissed her and placed her hand on his penis, over his clothing on a third meeting;
4. as above on a fourth meeting; and
5. incited her to take engage in penetrative sexual activity, which did not take place.

On 24 February 2020, in the Crown Court at Bristol, he was sentenced to a suspended sentence order of 12 months’ imprisonment, suspended for 24 months as well as a tagged curfew requirement between 9pm and 6pm, a rehabilitation order of 30 days, a sexual harm prevention order for seven years and a restraining order preventing him from contacting the victim or her family for five years. He was also required to pay £7,500 in compensation and £1,200 in costs.

The Solicitor General considered the sentence to be unduly lenient and appealed, under s.36 of the Criminal Justice Act 1988, for leave to refer it to the Court of Appeal.

The Appeal

On appeal, the Court applied the sentencing guidelines, taking into consideration usual factors such as the offender’s guilty plea, his previous good character, his disabilities, naivety and immaturity. The Lord Chief Justice concluded that the starting point in this case should have been in the region of 30 months’ imprisonment, discounted to 2 years on account of the offender’s guilty plea. The sentence was therefore unduly lenient in terms of length.

However the most interesting issue in this case was whether the sentence would remain a suspended sentence.

The court had regard to the usual guideline on the imposition of community and custodial sentences, and again took into account usual factors. It weighed the risk that he posed to the public against his strong mitigation, his prospects of rehabilitation, his compliance with the requirements and his commitment to addressing his offending behaviour.

What made this case stand out was the passage where the Lord Chief Justice turned his mind to the present crisis. At [41] he said:

We would mention one other factor of relevance. We are hearing this Reference at the end of April 2020, when the nation remains in lock-down as a result of the Covid-19 emergency. The impact of that emergency on prisons is well-known. […] 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.

Also at [41], examples of the increased impact of a custodial sentence during the crisis were given, in particular the fact that

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.

In light of this, the court allowed the Solicitor General’s application only to the extent that it substituted for the custodial term of 12 months, a custodial term of 24 months. The sentence, however, remained suspended and all other orders were unaffected.

Comment

The impact of the COVID-19 virus on the UK’s prison population has been widely reported in recent weeks. Last month, The Howard League for Penal Reform and the Prison Reform Trust released Public Health England documents which warned that the worst case scenario for the prison system could see 3,500 deaths from the virus.

Some insight into the situation inside the UK’s prisons is found in the personal account given by an anonymised inmate to the New Statesman on 2 May 2020. He explains how

communal showers, laundry procedures, the need for exercise, and healthcare facilities limit the true meaning of social distancing.

Also on 2 May 2020, writing for The Lancet World Report, Talha Burki reported that prisons internationally are “in no way equipped” to deal with COVID-19. At the time that report went to press, COVID-19 had already been detected in the majority of UK prisons and at least 15 prisoners and four members of staff have died after being infected.

Burki further reported that UK prisons are running at 107% capacity. Whilst the government has pledged to release 4,000 prisoners to alleviate the risk of COVID-19 transmission, the Prison Governors Association reportedly estimates that 15,000 inmates (almost a fifth of the prison population) would have to be let out if prisoners were to not share cells.

Considering the crowded, unsanitary conditions faced by many prisoners, the Court of Appeal’s decision is likely to be welcome news to those seeking to keep prison populations down and slow the spread of the virus amongst prison staff and inmates. 

Samuel March is a paralegal and student on the Bar Professional Training Course.