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To Suspend or Not to Suspend – The Likely Impact of an Immediate Custodial Sentence Upon an Offender During the Coronavirus Outbreak by Emma Downing

Fri 15th May 2020

Within the Sentencing Council’s 2016 definitive guideline ‘Imposition of Community and Custodial Sentences’ there is a chart setting out a number of factors which should be weighed in considering whether it is possible to suspend a sentence of imprisonment. The following three factors indicate that it may be appropriate to suspend a sentence of imprisonment:

1.A realistic prospect of rehabilitation

2.Strong personal mitigation

3.Immediate custody will result in a significant harmful impact upon others

We can now add a fourth factor to those which a sentencing Judge must consider in determining whether an inevitable sentence of imprisonment can be suspended. This fourth factor is the likely impact of an immediate custodial sentence upon an offender sentenced at a time when the nation remains in lockdown as a result of the coronavirus outbreak.

It is well-established that any Court will take into account the likely impact of a custodial sentence upon an offender and (where appropriate) upon others as well. However, in a judgment handed-down only last week, the Court of Appeal addressed specifically the importance of evaluating the likely impact upon an offender as a result of the Covid-19 emergency.

In the case of Regina -v- Manning [2020] EWCA Crim 592 (which was an Attorney General’s Reference pursuant to the Criminal Justice Act 1988, s.36) Her Majesty’s Solicitor General applied for leave to refer to the Court of Appeal a sentence which he considered to be unduly lenient.

The circumstances of the case are that Christopher Manning (hereinafter ‘the offender’) had pleaded guilty to four offences of sexual activity with a child contrary to the Sexual Offences Act 2003, s.9(1). The offender was sentenced by His Honour Judge Lambert to a suspended sentence order. The details of the suspended sentence order are that a total of twelve months’ imprisonment was suspended for a period of 24 months. There were two requirements to the suspended sentence order, namely (a) an electronically-monitored curfew requirement (nine months); and (b) a rehabilitation activity requirement (30 days). A number of ancillary orders were also made, including what was referred to by the Court of Appeal as a “strict Sexual Harm Prevention Order”.

The Court of Appeal gave leave to Her Majesty’s Solicitor General to refer the sentence to the Court of Appeal. However, leave was given only to the extent of varying the details of the suspended sentence order from a total of twelve months’ imprisonment to a total of 24 months’ imprisonment. The Court of Appeal did not accept that it was wrong in principle for the sentencing Judge to have suspended the sentence of imprisonment in this case.

For our purposes, the important part of the Court of Appeal’s judgment is at paragraph 41. Within this paragraph, what is termed “one other factor of relevance”, is set out as follows:

“We are hearing this Reference at the end of April 2020, when the nation remains in lockdown as a result of the Covid-19 emergency. The impact of that emergency in prisons is well-known. We are being invited in this Reference to order a man to prison nine weeks after he was given a suspended sentence, when he has complied with his curfew and has engaged successfully with the Probation Service.

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.”

 In conclusion, the Court of Appeal made specific reference to the fact that those in custody are currently being confined to their cells for much longer periods that would otherwise be the case and are unable to receive visits. Where applicable, specific submissions on the individual offender’s mental and/or physical health position, together with the conditions in the local prisons, are factors which should be weighed by the sentencing Judge in considering whether a suspended sentence is appropriate.

Emma Downing

 

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