The application of sentencing principles during the Covid-19 emergency

The Sentencing Council has made a statement intended to clarify the position for those who are less familiar with the principles or not involved in the criminal justice system

“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.

… 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.

… 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…

… 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.”

[Full statement available here]


R. v Jones [2020] EWCA Crim 764

Lord Justice Green, Mrs Justice McGowan and Mr Justice Henshaw

In R. v Jones the Court of Appeal (Criminal Division) considered the impact of the pandemic upon the conditions under which the applicant was serving his sentence. The applicant was at the time spending the entirety of each day, save for 30 minutes, locked in his cell and that he is unable to have any social visits.

The court made reference to the case of R v Manning [2020] EWCA Crim 592 and the observations made by the Lord Chief Justice at paragraphs 41 and 42 of the judgment:

“41. …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…. 

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….”

The court took the view that in the current, exceptional circumstances it is appropriate to take the conditions under which the applicant is presently held in custody into account.

Permission to appeal was granted and the sentence of 8 months was quashed and substituted for a sentence of six months.

The judgment is available here.