R v Arie Ali

When deciding whether a short custodial sentence should be suspended, the court may take account of unusually severe prison conditions prevailing when sentence is passed. The impact of custody remains relevant after the court has decided that imprisonment is justified, including to the question whether the sentence can be suspended. This consideration is particularly relevant where a substantial part of a short sentence will be served during the exceptional conditions. It applies only while those conditions persist and may properly be relied on once the courts have been informed of them. A prison offence against a prison officer will ordinarily justify immediate consecutive custody, but exceptional delay, rehabilitation, compliance and current prison conditions may justify suspension.

The appellant pleaded guilty at the Crown Court at Maidstone to assaulting an emergency worker. He had thrown boiling liquid at a prison officer while serving an earlier sentence. The sentencing judge imposed six months’ imprisonment after applying the statutory uplift for an offence against an emergency worker and allowing a reduction for the guilty plea.

The Court of Appeal granted permission to appeal. It rejected the challenges to the absence of a pre-sentence report and to the length of the sentence, but considered whether immediate custody was justified. The central issue was whether exceptional personal circumstances, together with the prevailing pressure on prison capacity, warranted suspending the sentence.

1. Appeal allowed in part. The six-month custodial sentence was quashed and replaced by a suspended sentence order for six months, suspended for 18 months. No unpaid work or other requirements were imposed.
2. The absence of a pre-sentence report was not, by itself, a ground of appeal. Such a report would have been appropriate if the judge had been considering alternatives to immediate custody. It was unnecessary where immediate custody was regarded as required and the judge had a positive probation officer’s letter.
3. The sentence length was not manifestly excessive. Committing the offence in prison was a very significant aggravating factor. The court also had to give effect to Parliament’s intention in enacting the Assaults on Emergency Workers (Offences) Act 2018. Those factors arose from the same context and were not to be double counted. The resulting term was proportionate.
4. Ordinarily, an offence of this nature against a prison officer would lead to immediate custody served consecutively to the sentence being served. This was an exceptional case because of the 16-month charging delay, the appellant’s release more than six months before charge, his conduct without further trouble for over two years, his completed licence period and the very positive probation reference. There was a realistic prospect of rehabilitation.
5. Current prison conditions were an additional relevant sentencing factor. Applying the principles restated in R v Manning [2020] EWCA Crim 592, the likely impact of custody could be considered when deciding its length and whether it should be suspended. The exceptional prison population and implementation of Operation Safeguard supplied strong additional reasons for suspension, especially for shorter sentences. The consideration applied to sentences passed during that period and would cease when government communicated that conditions had returned to normal.

• Court of Appeal (Criminal Division): Permission to appeal was granted. The appeal against the six-month sentence was allowed in part. The sentence was quashed and a suspended sentence order for six months, suspended for 18 months, was substituted.
• Crown Court at Maidstone: On 6 February 2023, the appellant was sentenced to six months’ imprisonment for assaulting an emergency worker after pleading guilty.