This statutory instrument’s effect was to alter the early release provisions for some offenders receiving relatively lengthy custodial sentences. By way of example, an offender who received a sentence of 12 years imprisonment would be released after eight years instead of 6 years, so “adding” 2 years to the time to be served in prison.
This legislation applied to anyone sentenced on or after 1st April 2020, even if they had been convicted before that date.
Some offenders might, but for the Coronavirus pandemic, have been sentenced prior to the 1st April and therefore have avoided the new rule, but because of the shutdown of the criminal courts were sentenced after the 1st April 2020.
The appellants arguments were expressed in these terms:
‘The appellants each argue that through no fault of their own, or the defence generally, they will serve substantially more time in custody prior to release than would otherwise have been the case if the matter had proceeded to sentence as originally intended. They say that this is manifestly unfair and that it is wrong in principle that an appellant, through no fault of his own, should suffer the detrimental effect of the 2020 Order when the court’s intention had been that they should be sentenced before those provisions came into effect’
The Court of Appeal rejected the arguments put forward by the appellants, deciding as follows:
- Nothing in the legislative framework, or the definitive guidelines of the Sentencing Council, requires, or explicitly permits, a sentencing court to take account of the impact of the early release provisions on these decisions.
- It would defeat the statutory purpose of the early release provisions if their effect were ordinarily to be taken into account when passing sentence. The clear intention underpinning the 2020 Order (as is clear from the text of the Order itself, and is spelt out in the Explanatory Memorandum) is that, where it applies, the offender should, before being entitled to release, serve a further one sixth of the sentence than was previously the case. If the sentencing judge reduced the length of sentence to reflect the harsher effect of the early release provisions then that would directly undermine the legislative purpose.
- Accordingly, the courts have consistently made it clear that a sentencing judge should not ordinarily take account of early release provisions when deciding the length of a determinate custodial sentence.
- Nothing in the authorities explicitly rules out the possibility that there may be exceptional cases where it is appropriate to take account of the impact of early release provisions.
- A court must take account of mitigating features when setting the length of a fixed-term custodial sentence (s231(2) and (7) Sentencing Code; s153 Criminal Justice Act 2003). There is no closed exhaustive list of mitigating factors. Depending on the case, they may include the fact that custody will have a particularly harsh impact on the individual offender. Moreover, a court may depart from the approach required by an applicable definitive Sentencing Council guideline where it would be unjust to follow that approach.
- The court has recognised the exceptional impact that the Covid-19 pandemic may have on sentencing decisions, however ‘we do not, however, accept that an analogy can properly be drawn, for the purpose of sentencing, between the effect of the pandemic on prison conditions, and the effect on the date of sentence (with the resulting impact of the 2020 Order). There is a principled difference between prison conditions and the effect of a change in the early release regime.’
- A change in the early release regime is different. It is a legislative change that is introduced by Parliament (or by a Secretary of State with Parliament’s authority).
- ‘Nor does the fact that the offender has been given an expectation that he will be sentenced before 1st April 2020, or otherwise sentenced in a way that defeats the change introduced by the 2020 Order, amount to a justification for departing from the [usual] principle.’
It is unlikely that there will be further attempts to challenge the effect of the 2020 Order, but as always we will be closely monitoring this and other cases to ensure the best outcomes for our clients.
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