While the Lord Chief Justice and the Lord Chancellor have announced that jury trials will commence this month, we are far from the pandemic’s conclusion. This fear is felt all the more by defendants facing sentencing hearings. Regardless of whether an offence was committed prior to the crisis, or in the currency, it does not change the new threat that an immediate custodial sentence brings – one of health.
Prisons were not designed to face a contagious health pandemic; this results in higher risks being posed to those in custody. So what are the repercussions of sentencing during this crisis? We know that any court can take into account the likely impact of a custodial sentence upon an offender, and upon others. However, the Court of Appeal has highlighted this, specifically in relation to Covid-19, in the case of R v Christopher Manning  EWCA Crim 592, 2020 WL 02201888.
In the judgment, at paragraph 41, the Court of Appeal stated that ‘the current conditions in prisons represent a factor which can properly be taken into account in deciding whether to suspend a sentence’. They extended this invitation to all judges and magistrates, where appropriate.
Following on from this, it was said that ‘the impact of a custodial sentence is likely to be heavier during the current emergency than it would be otherwise…both they and their families are likely to be anxious about the risk of transmission of Covid-19.’
It is not only suspension to which this relates, but also length of sentence and the question both Magistrates and District Judges face: to commit a sentence or retain it. This was addressed in paragraph 42 of the judgment.
This is mirrored in the Sentencing Council’s document ‘Imposition of Community and Custodial Sentences Definitive Guideline’ at page 8, which lists three factors to be considered when deciding if it is appropriate to suspend the sentence. Those are; having a realistic prospect of rehabilitation, strong personal mitigation, and ‘immediate custody resulting in significant harmful impact upon others’. This final factor coincides with the Court of Appeal’s judgment.
The risk and fear of this pandemic will be felt by all facing custody, but especially those in the ‘High Risk’ category of government guidance. The formal recognition from the Court of Appeal can, and should be used in defence mitigation where appropriate during this period.
By Olivia Beesley, Barrister, St Philips