Patel & Ors, R. v

A sentencing court must determine the appropriate determinate custodial term by reference to seriousness, mitigation and applicable sentencing law. It must not ordinarily adjust that term to reflect statutory early-release provisions. Release is an administrative consequence of the sentence, not part of the sentence itself.

This remains so where a change in the release regime produces a harsher outcome because sentencing was delayed through no fault of the offender, including delay caused by the Covid-19 pandemic. An exception would require a principled basis consistent with the statutory framework. An expectation of release under a regime which legislation does not permit cannot found an enforceable legitimate expectation.

Thirteen otherwise unconnected offenders appealed, or sought permission to appeal, against Crown Court sentences imposed after 1 April 2020. An Attorney General’s Reference concerned a further offender, Paul Fox.

In each relevant case, the offence and conviction pre-dated the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020, but sentencing was postponed until after it came into force. The Order changed automatic release for specified serious determinate sentences of seven years or more from one half to two thirds of the term.

The common issue was whether a sentencing judge could reduce the custodial term to neutralise that consequence, particularly where Covid-19 disruption or a judicial indication had delayed sentence.

1. The court rejected the common challenge. A sentencing court determines whether custody is justified and, if so, the shortest term commensurate with the offence’s seriousness. The release date is determined administratively under the statutory release regime. The court must explain the practical effect of its sentence, but must not calculate the term by reference to when release will occur.

2. The settled authorities, including R v Round [2009] EWCA Crim 2667 and R v Burinskas [2014] EWCA Crim 334, establish that early-release provisions are ordinarily left out of account. To reduce an otherwise appropriate sentence because the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 required service of two thirds would frustrate Parliament’s purpose in making the change.

3. Although an exceptional case was not conceptually excluded, it would have to be rooted in principle and consistent with the legislative scheme. Delay in sentencing, even if unforeseen, outside the offender’s control, or caused by the pandemic, did not suffice. The harsher conditions of imprisonment during the pandemic could be mitigating under ordinary sentencing principles; a change in the statutory release regime could not.

4. Nor could an expectation of sentencing before 1 April 2020, or a judicial indication intended to preserve release at the halfway point, create an enforceable legitimate expectation contrary to the statutory framework. The court dismissed the challenges founded on the 2020 Order.

5. The court made limited corrections in individual cases. It adjusted certain concurrent terms to reflect guilty-plea credit without altering the overall sentences, corrected records relating to youth detention and driving disqualification, and allowed the Attorney General’s Reference in Fox. It quashed concurrent nine-year rape sentences and substituted concurrent twelve-year sentences, and directed that a lesser alternative count lie on the file.

• Court of Appeal (Criminal Division): The court dismissed the common challenge to the effect of the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020. It made limited corrections in the individual appeals and allowed the Attorney General’s Reference concerning Paul Fox.

• Crown Courts: The appellants and applicants had been sentenced in Crown Courts at Northampton, Birmingham, Isleworth, Chelmsford, Manchester, Luton, Cambridge and Guildford. Fox had been sentenced at Preston. The challenged sentences were generally imposed after 1 April 2020 following adjournments.