One issue the sentencing judges have had to address is how best to approach sentencing in the thick of a pandemic.

Two notable developments are important here. First, the case of R v Manning [2020] EWCA Crim 592 in which the Court of Appeal handed down its ruling on 30 April allowing – in part – an appeal by the Attorney General on the basis that a sentence was unduly lenient. The 49-year-old defendant had been sentenced to 12 months' imprisonment, suspended for 24 months, for causing or inciting a child to engage in sexual activity. Other sanctions were also imposed. The Lord Chief Justice (LCJ) said this was unduly lenient and increased the term to 24 months, still suspended.

Importantly, he ruled that the impact of the pandemic on the provision for prisoners can be a relevant factor on sentencing given the pause on prison visiting and other restrictions. In his ruling, the LCJ said the impact of covid-19 on prisons is well-known and “the current conditions in prisons represent a factor which can properly be taken into account in deciding whether to suspend a sentence… 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”.

He stressed that applying ordinary sentencing principles, if a custodial sentence should be imposed, the likely impact of that sentence continues to be relevant to how long it should be and, notably, whether it can be suspended.

Sentencing Council statement

This ruling was followed in June by a statement from the Sentencing Council which clarifies the appropriate application of sentencing principles during the pandemic.

The chairman of the Council, Lord Justice Holroyde, said in the statement that the Council
understands the concerns of many around the effect of the pandemic, including the potentially heavier impact of custodial sentences on offenders and their families.

Interestingly, although he says well-established existing principles “are sufficiently flexible to deal with all circumstances” including the current crisis, he also referred positively to the Manning ruling. Holroyde LJ confirmed that throughout the sentencing process, the court “must bear in mind the practical realities of the effects of the current health emergency” and, as well as other mitigating factors, “keep in mind that the impact of immediate imprisonment is likely to be particularly heavy for some groups of offenders or their families”.

Note that the statement reiterates that the court has an obligation to protect the public and victims of crime. That, of course, needs to be the bottom line. But practitioners should not shy away from arguing that a prison term could prove particularly difficult for a defendant and or their family in an effort to at least have it suspended.

Written by Nicola Laver, a non-practicing solicitor and a qualified journalist. She is also editor of Solicitors Journal.