The impact of Covid 19 on prisoners – sentencing considerations – suspended sentences
R v Manning
 EWCA Crim 557
Extracted from the CBA Newsletter dated 5th May 2020:
The LCJ gave an ex tempore judgment (30th April 2020) in an AG’s Ref (R. v Manning) and made the observations copied below. The judgment won’t be available for a few week; the extract to follow this text is not expected to change.
41. We would mention one other factor of relevance. We are hearing this Reference at the end of April 2020, when the nation remains in lock-down as a result of the Covid-19 emergency. The impact of that emergency on prisons is well-known. We are being invited in this Reference to order a man to prison nine weeks after he was given a suspended sentence, when he has complied with his curfew and has engaged successfully with the Probation Service. The current conditions in prisons represent a factor which can properly be taken into account in deciding whether to suspend a sentence. In accordance with established principles, any court will take into account the likely impact of a custodial sentence upon an offender and, where appropriate, upon others as well. Judges and magistrates can, therefore, and in our judgment should, keep in mind that the impact of a custodial sentence is likely to be heavier during the current emergency than it would otherwise be. Those in custody are, for example, confined to their cells for much longer periods than would otherwise be the case – currently, 23 hours a day. They are unable to receive visits. Both they and their families are likely to be anxious about the risk of the transmission of Covid-19.
42. Applying ordinary principles, where a court is satisfied that a custodial sentence must be imposed, the likely impact of that sentence continues to be relevant to the further decisions as to its necessary length and whether it can be suspended. Moreover, sentencers can and should also bear in mind the Reduction in Sentence Guideline. That makes clear that a guilty plea may result in a different type of sentence or enable a Magistrates’ Court to retain jurisdiction, rather than committing for sentence.
Interpretation of Sentencing guideline - GBH
Fa Xue v R
 EWCA Crim 587
This judgement deals with two questions of interpretation of the Sentencing Council guideline, effective from 13 June 2011, for offences of causing grievous bodily harm (GBH) with intent to do GBH, or wounding with intent to do GBH. The CACD analysed the terms: "Serious in the context of the offence" and “Sustained or repeated assault".
Sexual offences, s14 (arranging and facilitating a child sex offence) –victim is undercover police officer – guidance on categorisation of harm within Sentencing Guidelines.
Privett, West, Smisson & Bounaiuto
 EWCA Crim 396
By Maryam Mir
These four otherwise unrelated cases were listed together for the court to provide sentencing guidance for offences under section 14 Sexual Offences Act 2003 (arranging or facilitating the commission of a child sex offence, “s14 offence”) and in particular the correct approach to assessing harm.
The common feature between them was that when the individual defendants arranged, via the internet, to commit a sexual offence with a child, they were unaware they were in contact with an undercover police officer posing as parent of the intended victim. All four were arrested upon arrival at a pre-arranged meeting place and found to be in possession of condoms, sexual toys and/or gifts for the intended victim. The existing tension within the relevant jurisprudence on the correct categorisation of harm within the Sentencing Guideline "Arranging or Facilitating a Child Sex Offence" was considered.
All appellants accepted that culpability was unaffected by whether the intended victim was fictitious or not. Relying on R v Baker  EWCA Crim 2752 and R v Bayliss  EWCA Crim 269 and cases that followed that approach, the appellants argued that whenever there is a fictional child victim, sentencing will fall into the lowest category of harm under the guideline (category 3 “other sexual activity”), subject to upward adjustment to reflect any relevant factors in the case.
The prosecution submitted that it would be wrong in principle to "pre-categorise" offences simply on the basis that a police officer pretended to be a child victim. Each case should be assessed on its own facts, and the court should adopt a flexible approach, determining the category of harm on the basis of the facts of the case. The wording of the s14 offence focussed on intention and belief. An analogous comparison was drawn to the Sentencing Guidelines for Attempted Murder, where in assessing harm the intention and foresight of the defendant must be taken into account and reflected in the sentence imposed. Whether a case falls into category 1A should depend on factors such as the degree of preparation, the length of time over which the offender had the crime in contemplation and the way in which he demonstrated his intention.
In determining that the correct approach was not to pre-categorise, the court decided, at para 67:
“…we consider that for a section 14 offence, the position under the Guideline is clear: the judge should, first, identify the category of harm on the basis of the sexual activity the defendant intended (“the level of harm should be determined by reference to the type of activity arranged or facilitated”), and, second, adjust the sentence in order to ensure it is “commensurate” with, or proportionate to, the applicable starting point and range if no sexual activity had occurred (including because the victim was fictional) (“sentences commensurate with the applicable starting point and range will ordinarily be appropriate”).
“This may lead to the result that a defendant who arranges the rape of a fictional 6-year-old is punished more severely than a defendant who facilitates a comparatively minor sexual assault on a real 15-year-old. In our view, there is nothing necessarily wrong in principle with that result. The sentence should be commensurate with the applicable starting point and range, and in cases where the child is a fiction this will usually involve some reduction (as in Bayliss) to reflect the lack of harm.”
The CACD recognised that aspects of the decision in Baker insofar as they apply to section 10 offences may well need to be revisited in light of this judgment, but in the current instance restricted this decision to section 14 offences. None of the sentences were found to be manifestly excessive and the categorisation of 1A was upheld. The Sentencing Council was invited to consider whether clarification of the relevant Guideline was necessary.
If you would like to speak to Mayram Mir about this case, please email here.