Sentencing in the Pandemic by Emma Kutner

This week, a successful appeal in the Court of Appeal (Criminal Division) saw a sentence of eight months’ imprisonment reduced to six months’ imprisonment because of the exceptional circumstances the current coronavirus pandemic has created.

In R v Jones [2020] EWCA Crim 764, the Court was asked to consider that the conditions the applicant would be detained under would involve a greater degree of privation than would normally be the case but for lock-down, and accordingly to reduce the sentence that had been imposed.

It seems that these submissions were entirely accepted by the Court. In its short judgment, delivered by Lord Justice Green, the Court stated that the “present, exceptional, circumstances” made it appropriate to take into consideration the conditions under which the applicant is held in custody.

What exactly those conditions are was considered in R v Manning [2020] EWCA Crim 592 earlier this year, when the Lord Chief Justice said 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.” (paragraph 41).

The current restrictive regime in prisons came into force on 24 March 2020, stopping all social visits, education, training and employment activities, all access to gyms, religious association and general association.[1] The Chief Inspector of Prisons described the extreme restrictions for prisoners, explaining how the vast majority are locked up for nearly the whole day with usually no more than half an hour out of their cells. Prison transfers have been largely suspended and new arrivals at prisons have been quarantined for 14 days.

Even with these measures, as of 15 June 2020, the Ministry of Justice reported there were 502 confirmed cases of Covid-19 amongst prisoners and 971 confirmed cases amongst staff. As of 2 June 2002, 23 prisoners and nine staff are known to have died from Covid-19. Public Health England reported that access to testing for prisoners has been limited and variable. It is likely, therefore, that the cases confirmed by the MoJ do not represent the true numbers of those infected in the prison system.

Whilst it is entirely understandable that prisons are enforcing such strict measures, these precautions, protecting both staff and those residing within prisons, are undoubtedly having a serious effect on the mental and physical health of inmates. In an open letter to Robert Buckland, Lord Chancellor, the Howard League for Penal Reform and the Prison Reform Trust report that there is a real risk that “we will reap the consequences over the years to come in terms of the mental health of those affected by solitary confinement”. In just one example, the rates of self-harm in women’s prisons have increased during lockdown.[2]

The toll of near total solitary confinement did not go unmentioned in Manning, with the LCJ observing that the impact of a custodial sentence is likely to be heavier during the current emergency than it would otherwise be.

These two cases, Jones and Manning, have resulted in one clear conclusion: whilst this pandemic is ongoing and prisons continue to operate with a restricted regime in lockdown, Judges can properly consider this as a relevant factor when sentencing.

This potentially opens the door for many other prisoners to now seek leave from the Court of Appeal to have their sentences shortened, since the exceptional circumstances surely apply across the board.

The sentence reduction in Jones was one-sixth from the original 12-month sentence imposed, before taking into account the credit for a guilty plea (or a one-quarter reduction from the eight months’ imprisonment Jones actually received). For those who appeal on this point, it will certainly be interesting to see whether the reduction of one-sixth is seen as case-specific or rather a guideline for the suitable reduction.

Other questions remain about how long considerations regarding Covid-19 will be relevant when sentencing. Lucy Frazer MP, Minister for Prisons and Probation, recently said that, “the sacrifices of recent months mean we are now in a position to consider how to cautiously restart aspects of daily prison life, such as social visits, education and work”. The Guardian reports that visits could be reintroduced as early as July.[3]

“Cautiously” restarting the restrictive regime undoubtedly means that conditions will be eased over time and not all in one go. This begs the question, when the LCJ and Green LJ said these were exceptional circumstances, which of the conditions prisoners are living in were they referring to?

As conditions are relaxed, only time will tell what elements of this restrictive prison regime our judges think warrant a reduction in sentence.

[1] Covid-19 Population Management Strategy  

[2] Letter to SoS from the Howard League  

[3] The Guardian: Prison visits to resume in July.

 


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