AG’s Ref (R. v Manning)  EWCA Crim 592
Lord Burnett (Lord Chief Justice), Mrs Justice Cutts DBE and Mrs Justice Tipples DBE.
In AG’s Ref (R. v Manning), on an application by the Solicitor General for permission to refer the sentence imposed on an offender under the unduly lenient sentence scheme, the Court of Appeal (Criminal Division) gave guidance as to the relevance of the Covid-19 emergency to sentencing exercises.
The Court of Appeal considered that 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, courts will take into account the likely impact of a custodial sentence upon an offender and, where appropriate, upon others as well. The impact of a custodial sentence is likely to be heavier in the current climate.
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.
A 12 month custodial sentence, suspended for 24 months, was substituted for a custodial term of 24 months, which remained suspended for 24 months. The judgment is available here.
Proposed changes to assault and attempted murder guidelines
The Sentencing Council has opened a consultation on proposed revisions to sentencing guidelines for seven assault offences, including common assault, attempted murder and a new guideline for assault on emergency workers.
Proposed changes include:
- The inclusion of a high culpability factor in common assault in common assault offences of “Intention to cause fear of serious harm, including disease transmission”, and inclusion of “spitting or coughing” as an aggravating factor.
- Revised guidance for attempted murder where weapons were taken to the scene.
- The introduction of seriousness categories and starting points for ABH and GBH with more specific factors to assess seriousness and ensure reflection of culpability and harm.
- Specific guidance for sentencing assaults against emergency workers, to reflect legislation introduced in 2018 to introduce a higher statutory maximum sentence of 12 months for offences of common assault towards emergency workers.
This consultation closes 15 September 2020.
[Respond to this consultation here]
R. v Abbott  EWCA Crim 516
Lord Justice Fulford (Vice-president of the Court of Appeal), Mrs Justice Cheema-Grubb DBE and Sir Nicholas Blake.
In R. v Abbott the Court of Appeal (Criminal Division) provided guidance on how to calculate the appropriate surcharge when sentencing multiple offences, imposing multiple sentences of a different nature or dealing with an offender for a breach of an existing offence where a surcharge was imposed at the original sentencing hearing.
- Where an offender is sentenced for multiple offences, a surcharge under section 161A of the Criminal Justice Act 2003 and the Criminal Justice Act 2003 (Surcharge) Order 2012 (SI 2012/1696) should be calculated by reference to the total sentence imposed; the Sentencing Council’s guidance to the contrary should not be followed.
- In cases involving a fine and period of imprisonment the surcharge sum will be the higher of either the amount corresponding to the aggregate fine or the amount corresponding to the aggregate period of imprisonment. The same applies to any other combination of orders and whether there is a mixed disposal in relation to a single offence or different disposals in relation to different offences.
- The duty to impose a surcharge is discharged when the court first sentences the offender. Section 161A contains no duty or power to order an offender to pay a second surcharge. It follows that when the court makes an order activating a suspended sentence of imprisonment, or taking action upon breach of a community or other order, and, at the same time sentences an offender for new offences, the surcharge should only be calculated by reference to the new offences.
However, if any offence being dealt with by the court, including an offence the sentence for which has been breached, was committed before the coming into force of the current surcharge Order, the surcharge will still need to be calculated by reference to the charging regime applicable on the date of the commission of the earliest offence the court is dealing with. The judgment is available here.
Longer custodial sentences amongst UK’s overhaul of terrorism response
The Terrorist Offenders (Restriction of Early Release) Act 2020 came into force on 1 April 2020. The Act inserts section 247A and Schedule 19ZA into the Criminal Justice Act 2003. The impact of this legislation is that any prisoner serving a determinate sentence for a terrorism offence (listed in Part 1 or Part 2 of Schedule 19ZA) must serve at least two-thirds of their custodial term in addition to receiving approval from the Parole Board for release. The Government has estimated that around 50 offenders who would have been released automatically will be affected by this legislation; their release will be retroactively delayed.
Previously, these offenders were eligible for release after serving half of their custodial term and not all would be subject to consideration by the Parole Board. This brings the procedure for determinate sentences imposed for certain terrorist offences in line with the regime that applies to offenders serving extended determinate sentences.
[Full news story here]
Automatic release point changed from half-way to two-thirds for serious violent and sexual offenders sentenced after 1 April
By virtue of the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 (SI 2020/158), offenders sentenced after 1 April 2020 who receive a standard determinate sentence of seven years or more (for an offence listed in Parts 1 or 2 of Schedule 15 to the Criminal Justice Act 2003; specified violent and sexual offences) where life imprisonment may be imposed, will now be entitled to be released after serving two-thirds of their sentence. Prior to the change, offenders were automatically released after serving half of their sentence. [Full GOV.UK press release here]