The Court of Appeal has confirmed that the impact of the Coronavirus epidemic on provision for prisoners can be a relevant factor when sentencing a defendant.
R v Manning  EWCA Crim 592
The Solicitor General complained that the imposition of a suspended custodial sentence on a defendant convicted of sexual activity and inciting sexual activity with a child was unduly lenient. The basis of the complaint concerned the interpretation of the sentencing guidelines for sexual offences and is not considered here.
However, during the course of the judgment the Court of Appeal determined the significant issue in the case to be whether or not it was open to the judge to suspend the custodial sentence .
The Court considered the Sentencing Council’s guidelines on the imposition of community and custodial sentences, the particular circumstances of the offence and offender and, at paragraph 41, the impact of the Coronavirus epidemic on the treatment of prisoners.
As a consequence of the lockdown, prisoners are likely to be more adversely affected by imprisonment than in healthier times. At paragraph 41 of the judgment, the Lord Chief Justice observes:
‘we are hearing this Reference at end of April 2020, when the nation remains in lock-down as a result of the COVID-19 emergency. The impact upon 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 […] 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’.
The ordinary principles of sentencing, the Court held, in particular the need to consider the consequences of imprisonment on the offender and occasionally those concerned with the offender, require the sentencing court to consider the particularly hard experience of custody in the current conditions. The impact of Coronavirus may be relevant to the length of a custodial sentence and whether the custodial term can be suspended .
Suspended sentences are unavailable to child defendants, but nonetheless the judgment remains relevant, given both the principle aim of the youth justice system and the severe impact of stringent measures upon a child’s wellbeing.
Solitary confinement, the cessation of of face-to-face contact, including family visits, education and therapy and difficulties in accessing support to plan for release are reported in Young Offenders Institutions.1 The consequences of such measures can be severe. The British Medical Association, the Royal College of Psychiatrists and the Royal College of Paediatrics and Child Health have previously warned that solitary confinement for children increases the risk of long-term psychiatric and developmental harm.2
The sentencing court is obliged to consider the welfare of the child and the primary aim of sentencing is to reduce youth offending. In the current climate, the reality of a custodial sentence must be acknowledged: measures designed to safeguard the child’s wellbeing and to rehabilitate have been affected. Where the custody threshold may otherwise have been passed the court will have to further consider whether the necessity of imprisonment outweighs the risks to the child and community.
Written by Ruth Broadbent of QEB Hollis Whiteman Chambers in collaboration with YJLC
- 1. HM Inspectorate of Prisons’ report dated 21 April 2020 details the findings from visits to three Young Offenders Institutions and is summarised in the Howard League’s briefing, ‘Children in prison during the COVID-19 epidemic’ (back)
- 2. See the Howard League’s briefing, ‘Children in prison during the COVID-19 epidemic’ (back)