Jones, R v

Where an offender is to serve an immediate custodial sentence during the exceptional prison restrictions caused by the Covid-19 emergency, the court may take the resulting increased deprivation into account when deciding the sentence’s necessary length. This applies ordinary sentencing principles concerning the likely impact of custody.

A sentence that is within the applicable guideline range and reflects serious aggravating features and extensive relevant antecedents will not be altered as manifestly excessive. However, an appellate court may reduce it where materially more severe prison conditions arose immediately after sentencing and were unknown to the sentencer.

The applicant pleaded guilty at Cardiff Crown Court to attempted burglary and possession of a Class A drug. He also asked for six theft or attempted-theft offences to be taken into account. The recorder imposed eight months’ imprisonment for the attempted burglary, after full credit for the guilty plea, and no separate penalty for the drug offence.

He challenged the sentence as manifestly excessive. He also contended that, although the sentence pre-dated the Covid-19 lockdown by only days, he was serving it under substantially more restrictive prison conditions, including prolonged cellular confinement and no social visits. The central issue was whether those unforeseen conditions warranted a reduction.

1. The appeal was allowed to a limited extent. The court granted permission, quashed the eight-month sentence and substituted six months’ imprisonment.

2. The recorder’s pre-credit starting point of 12 months was within the applicable sentencing guidelines. The attempted burglary involved an occupied public house at night, the applicant had progressed up the stairs while under the influence of drugs, the victims had suffered a significant impact, and he had a very poor record for acquisitive offending. On totality, the sentence could not be described as excessive, still less manifestly excessive.

3. However, the court applied R v Manning [2020] EWCA Crim 592. Ordinary sentencing principles permit the likely impact of custody to be considered when deciding both its necessary length and whether suspension is appropriate. During the Covid-19 emergency, extended cellular confinement, the absence of visits and associated anxiety made custody materially more onerous.

4. Those exceptional conditions arose only days after sentence and were unknown to the recorder. The court therefore did not criticise the original sentence, but took the conditions actually faced by the applicant into account and reduced the term by two months.

• Court of Appeal (Criminal Division): allowed the appeal to the extent of substituting six months’ imprisonment for the eight-month sentence.
• Cardiff Crown Court: sentenced the applicant on 17 March 2020 to eight months’ imprisonment for attempted burglary, with no separate penalty for possession of a Class A drug.