Whittington, R v

The effect of pandemic restrictions on prison conditions may be relevant when a court determines sentence, because the individual impact of custody is always material. That principle does not ordinarily justify reducing on appeal a lengthy sentence imposed many months before the pandemic began.

An appellate court should require clear, cogent and persuasive evidence that the restrictions have had a disproportionately harsh effect on the particular prisoner. The longer and more serious the sentence, the less weight the pandemic will normally carry. Short sentences imposed immediately before lockdown may present exceptional circumstances, but there is no general pandemic reduction.

The applicant was convicted at Cardiff Crown Court of three offences of possessing Class A drugs with intent to supply. On 12 September 2018, he received concurrent sentences of eight years’ imprisonment.

His original, substantially late application for leave to appeal sentence was refused by a single judge. About 14 months later, he sought an extension of time to renew it. He no longer pursued the original sentencing grounds, but relied on the harsher conditions of imprisonment during the COVID-19 pandemic and asserted mental-health concerns.

The central issue was whether pandemic restrictions justified interference with a lengthy sentence imposed well before the first lockdown.

1. The renewed application for leave to appeal sentence was refused. The concurrent eight-year sentences were appropriate and there was no proper basis to interfere with them.

2. The court accepted that the COVID-19 pandemic could make custody more onerous. As stated in Manning [2020] EWCA Crim 592, that impact may be considered by a sentencer when deciding the necessary length of a custodial term or whether it can be suspended. This reflects the established requirement to consider the particular impact of custody on the offender and, where appropriate, others.

3. The position differs on an application for leave to appeal against sentence. A long sentence imposed many months before the pandemic will rarely, if ever, be substantially reduced solely because of subsequent pandemic restrictions. The exceptional reduction in Jones [2020] EWCA Crim 764 concerned a short sentence imposed only days before lockdown.

4. The court did not adopt an absolute rule that the pandemic can never be relevant to a pre-lockdown sentence. However, a long-term prisoner must provide particularly cogent evidence that restrictions have had a clear, disproportionate and harsh individual effect. The seriousness of the offending and the length of the sentence reduce the weight ordinarily given to a period of lockdown.

5. The applicant supplied limited evidence of his circumstances. Although his prison regime had been adversely affected, his sentence pre-dated lockdown by about 18 months. The court was therefore not persuaded that the otherwise proper sentence should be reduced.

6. Separately, any guilty verdict on the alternative simple-possession Count 2 was quashed. Once the jury had convicted on Count 1, no verdict should have been taken on Count 2; that count was ordered to lie on the file on the usual terms.

• Court of Appeal (Criminal Division): By [2020] EWCA Crim 1560, refused the renewed application for leave to appeal sentence. It also quashed any verdict on the alternative Count 2 and ordered that count to lie on the file.
• Single judge, Court of Appeal (Criminal Division): On 13 June 2019, refused the original application for leave to appeal against sentence.
• Crown Court at Cardiff: On 12 September 2018, following jury convictions, imposed concurrent eight-year sentences for three Class A drug supply offences.