R v MANNING [2020] EWCA Crim 592 - Staying Alert, Coronavirus and Sentencing Considerations

21 May 2020

At the end of April 2020, in the midst of the Covid-19 pandemic, the Court of Appeal handed down its judgment in the case of R v Manning [2020] EWCA Crim 592 (here). In the judgment, Lord Burnett CJ expounded some interesting views on the impact of suspended custodial sentences during these unprecedented times.  This article will consider the effect this judgment will have on a judge’s sentencing exercise when considering custodial and community-based punishments in conjunction with the recent Government guidance to “stay alert” (here).

Summary

The Appellant pleaded guilty to four counts of sexual activity with a child, contrary to s.9(1) of the Sexual Offences Act 2003, and one count of causing or inciting a child to engage in sexual activity, contrary to s.10(1) of the Sexual Offences Act 2003. At first instance he received a suspended sentence order of 12 months’ imprisonment suspended for 24 months, as well as other community and ancillary orders. The Solicitor General appealed on the basis of an unduly lenient sentence. On appeal, the Court of Appeal agreed that the sentence was unduly lenient and increased it. However, although the Court of Appeal increased the term of imprisonment to 24 months, it maintained suspension of the  custodial term.

Importantly, the Lord Chief Justice highlighted that in the current climate a sentencing judge should, whilst taking account of the usual factors, consider the impact of the Covid-19 crisis. At paragraph 41 he said:

“We would mention one other factor of relevance. We are hearing this Reference at the end of April 2020, when the nation remains in lock-down as a result of the Covid-19 emergency. The impact of that emergency on prisons is well-known...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. Those in custody are, for example, confined to their cells for much longer periods than would otherwise be the case - currently, 23 hours a day. They are unable to receive visits. Both they and their families are likely to be anxious about the risk of the transmission of Covid-19.”

Commentary

These considerations are in line with the Sentencing Council Guideline for imposing community and custodial sentences (here).  The Guideline stipulates that factors in favour of suspending a sentence are; a realistic prospect of rehabilitation, strong personal mitigation and/or immediate custody will result in significant harmful impact on others.  Where appropriate, the court ought to consider the harsher conditions that will be imposed on a person being incarcerated during the pandemic. Moreover, defendants should be forthcoming with advancing mitigation about any underlying health conditions that they suffer from, and defence advocates ought to highlight this judgment on their behalf during sentencing.

The dictum of the Lord Chief Justice has been well received as providing a pragmatic solution to the situation within prisons. Coronavirus is putting strain on the prison system which has been widely commented on (see, e.g., here). To that end, this judgment provides the Court’s stance on “staying alert” by way of alleviating this strain on the prison system. Conversely, it also ties in with proposals for an early release scheme suggested by the Government in early April 2020. In preparation, the Government has purchased circa 2000 extra electronic monitoring tags; however, as of 15 May 2020 only 57 prisoners had been released under the new system. The Government should grasp the nettle and demonstrate its preparedness and willingness to tackle Covid-19 in prisons. This is in line with WHO Guidance (here) which specifies that “[e]very country has a responsibility to increase their level of preparedness, alert and response to identify, manage and care for new cases of Covid-19” in prisons. Considering human rights principles of proportionality, early release may arguably be more proportionate than the restriction of liberty inherent in 23-hour lockup with no visitations.

On the other hand, the burden on probation services tasked with the rehabilitation of offenders must also be considered. A crucial sentencing purpose is the reform and rehabilitation of offenders (here),  but probation services are running a skeletal service in most, if not all, areas during the lockdown.  Probation interviews and reports are being conducted over the phone, which is understandable; however, there are only limited community-based punishments or conditions that can be recommended. Offenders cannot undertake unpaid work; community drug and alcohol intervention centres are closed and group activities are on pause. The Community Rehabilitation Company (“CRC”) issued this notice at the beginning of the outbreak:

 “All unpaid work and group Programme appointments have been stopped for the time being. We are providing interventions one to one over the telephone, and where this is the case you will be advised by your case manager.”

This may lead to circumstances in which a substance dependent offender may be recommended for infrequent telephone meetings or placed on a curfew which does not assist their rehabilitation. Probation services are cognisant of the impact that Covid-19 is having on low and medium risk offenders socially and financially. As such, they are providing some extra support services to help offender management (here). During this “stay alert” phase, there is a balancing exercise to undertake as both the prison and probation service have a duty to protect the public and also their workers.

The Government, in its recent guidance, has stated that the public can start to go back to work (here). There is guidance on how people accomplish this (here).  Although the guidance does not specifically reference probation services, it provides stringent measures concerning risk assessment and safety. The difficulty posed by offenders undertaking unpaid work and/or attending group activities will be in risk assessment as there are many variables to be considered. It may be prudent, in the current climate, for probation to maintain the position of keeping contact remote.

R v Manning [2020] establishes a sensible approach to sentencing during the current phase of the pandemic. It should be at the forefront of sentencing judges’ minds. There is a public interest in keeping the prison population down to avoid prisons becoming “hot spots” or helping generate a second wave of the virus. That is not to say that judges should not be sending people to prison for short custodial sentences, as some offences and offenders plainly warrant such punishment, but additional caution should be exercised at this time.

Jordan Santos-Sindes

9 Bedford Row

21 May 2020

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