The end of lockdown is in place and one year has passed since the Court of Appeal’s decision in R v Manning [2020] EWCA Crim 592, so it is worth reconsidering the court’s approach to sentencing during the pandemic.

The Court of Appeal in Manning established the position that it is appropriate to consider prison conditions during the Covid-19 pandemic as a relevant factor to take into account when deciding whether a prison sentence should be suspended. The reason being that prison conditions are harsher as a result of the pandemic and so the impact of a custodial sentence is greater for the offender and their family. The court pointed to the fact that offenders in custody are confined to their cells for longer periods of time, unable to receive visits and would be anxious (as would their family) about the risk of the transmission of Covid-19. In practice this means that where the custody threshold is passed, magistrates and judges could consider the length of the sentence and whether the sentence could be suspended.

Although the Covid-19 pandemic is unprecedented, the same cannot necessarily be said of the principle established by the court in Manning. The current regime in relation to credit for a guilty plea means that sentences that may cross the custody threshold can result in a community sentence when credit is applied. This was in fact pointed out by the court in Manning.

Arguments related to sentencing when considering the impact and circumstances of Covid-19 are not always successful as can be seen in the Court of Appeal’s decision in R v Patel (Tristan) [2021] EWCA Crim 231. This was an appeal concerning many defendants in relation to the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020. The Release of Prisoners Order came into force in April 2020, however, Judgement in the case of Patel was on the 25^th of February 2021.

The Order made changes to the point when offenders convicted of violent or sexual offences and sentenced to a fixed term of seven years or more would be released. Prior to the Order, offenders would be released after serving half of their sentence, however, the Order changed this to release after serving two thirds of the sentence. The appellants in the case of Patel were convicted before the Order came into force, however, as a result of the restrictions caused by the pandemic (which was of course no fault of the defendants) sentencing was adjourned and the defendants were sentenced after the Order came into force. 

The appellants argued that it was wrong and manifestly unfair for their sentences to increase where there was no fault on their part. The appellants accepted that early release arrangement did not affect a judge’s decision as to the length of a determinate custodial sentence, however, they argued that exceptions to the general principle should be made and there was no authority that suggested that it would not be appropriate to take account of early release in an exceptional case. The appellants pointed to their legitimate expectation to be sentenced before the Order came into force.

Their appeal was dismissed. The fact that sentencing was delayed was not sufficient, neither was it sufficient that the delay was caused by reasons beyond the control of the appellants. The court stated that apart from the pandemic, sentencing could be delayed for reasons beyond the control of a defendant such as reports not being ready, a co-defendant’s trial overrunning, ill health of counsel, court equipment malfunctioning or failings in communication.

In essence the court will use its discretion to consider the impact of Covid-19 as mitigation in relation to sentencing but it is also clear that the general impact of Covid-19 will not be sufficient to answer every question related to sentencing.

Perhaps what is worth considering is the effect of mitigation of Covid-19 prison conditions if vaccines are offered to the prison population.