The Sentencing Council have issued a statement on the application of the sentencing principles during the Covid-19 emergency. Lawyers representing children can properly take into account conditions in prison as a relevant factor when mitigating and applying the sentencing council guidelines to a case.
The statement explains that the Sentencing Council guidelines are flexible enough to take into account the current pandemic and refers to the recent case of R v Manning in which the Lord Chief Justice stated that the current conditions in prisons represent a factor which can properly be taken into account in deciding whether to suspend a sentence.
The statement highlights that ‘Throughout the sentencing process, and in considering all the circumstances of the individual case, the court must bear in mind the practical realities of the effects of the current health emergency. The court should consider whether increased weight should be given to mitigating factors, and should keep in mind that the impact of immediate imprisonment is likely to be particularly heavy for some groups of offenders or their families.’
The statement also refers to courts keeping in mind the practical difficulties of defendants accessing legal advice during the present emergency.
Conditions in children’s prisons are particularly bleak at this time. A recent publication from the Howard League for Penal Reform highlights some of the difficulties faced by children in severely restricted prison regimes. Most children are currently being placed in prolonged solitary confinement. There are no face to face visits, virtually no face to face education and no therapy. Children are also experiencing particular difficulties in accessing the support they need to plan for release.
These factors can and should be taken into account when a child is being sentenced and, particularly so, when the child is at risk of a custodial sentence.