Sentencing Principles during Covid-19 and Prison Overcrowding

During the Covid-19 pandemic and the months thereafter, Defendants became well aware of the reduction that could be afforded if they had been remanded during the 'lockdown' times. This became known as the R v Manning [2020] EWCA Crim 592 (Manning) principle. This meant that a custodial sentence would be reduced from what it would otherwise be.

The principle of Manning remains effective even in 2023 for those who have been remanded for a long period of time.

More recently, the Court of Appeal has issued substantial guidance in respect of how a Court can take into account prison over-crowding as a result of increased prison numbers and a reduced capacity. In R v Ali (Arie) [2023] EWCA Crim 232, the Appellant sought to over-turn his sentence of immediate custody on the basis that he should have received a suspended sentence.

During the Court of Appeal's judgment, reference  was made to an announcement in Parliament about 'Operation Safeguard'. This involved the Government requesting the use of 400 police cells to hold people who were remanded in custody or serving prison sentences in the adult male prisons. The justification for this was because of “a surge in offenders is coming through the criminal justice system, placing capacity pressure on adult male prisons in particular.”

In the case of Ali, the Court determined that the sentence should have been suspended. This was quite an unusual step as the usual approach of the Court of Appeal is that whether to suspend a sentence is a matter for the Sentencing Judge's discretion. The Court indicated that they had taken into account the issue of prison overcrowding when determining whether or not to suspend the sentence.

As a factor, this can be used in support of reducing a sentence of imprisonment but also in favour of imposing a suspended sentence rather than a sentence of immediate custody. The principle took effect from 20th February 2023. The focus of the principle is on shorter sentences. The key section is Para 22:

This factor will principally apply to shorter sentences because a significant proportion of such sentences is likely to be served during the time when the prison population is very high. It will only apply to sentences passed during this time. We have identified above the starting point for the relevance of this consideration for sentencing, which we take to be the implementation of Operation Safeguard 14 days after 6 February 2023. Sentencing courts will now have an awareness of the impact of the current prison population levels from the material quoted in this judgment and can properly rely on that. It will be a matter for government to communicate to the courts when prison conditions have returned to a more normal state.”

The Government have not been able to indicate when they expect the issues of overcrowding and Operation Safeguard to end, as such there is no end date for the principle set out in Ali.

The principles in Ali have already been deployed in cases in which Rhys is instructed. Rhys recently represented SK who was charged with a third drink driving offence in three years, all offences having been approximately 3 times the legal limit. SK was in breach of a suspended sentence by virtue of him committing the third offence. Rhys successfully persuaded the Crown Court, having appealed a sentence of immediate custody imposed by the Magistrates Court, that it was appropriate to impose a further suspended sentence.