COVID Bang Up: The Staunch Duty of the Defence Lawyer
Co-authored by Jeremy Dein QC
The nation is finally moving on from lockdown three, and with the government’s road map, we are promised a way out of the Covid restrictions we’ve learnt to live with for so long. However, for those in prison, they continue to live in an unusually restricted and challenging regime, with conditions remaining much harsher than normal. Many inmates who have endured these conditions over the last year, will inevitably come before the court to be sentenced in a long time yet. Therefore, we are of the view that it will continue to be critically important to push for an appropriate reduction in sentence in such cases, in accordance with the well-known principles of R v Manning.
In this article, we examine some of the ways that prison conditions have been affected, the resources which demonstrate that, and the differing ways the Court of Appeal has applied R v Manning. In so doing, we highlight the need for Covid prison conditions to trigger a marked reduction in sentence, and for defence lawyers to work, determinedly, to that end.
Of course, it is your client who is likely to be the best source of information about the reality of life in prison during the pandemic. Considering the multiple ways in which their time in custody is likely to have been made more onerous and difficult to endure, it is only right we suggest, that arguing for a substantial discount to the sentence is necessary, not merely lip service to the R v Manning principles.
The Reality of Prison Conditions during Covid
HM Inspectorate of Prisons has continued to carry out prison inspections during Covid. The reports, which present a snapshot of the conditions at the time of the visit, can be a useful source of information. For example, HMP Wandsworth was the subject of a short scrutiny visit as long ago as 28th April 2020 during the first lockdown. It found:
- The vast majority of prisoners were locked up for nearly the whole day with usually no more than half an hour out of their cells (introduction p.7);
- The prison regime was limited to exercise and a shower. Prisoners had to choose whether to use their 30 minutes for exercise or a shower (para.3.1);
- On some wings at Wandsworth, there were no showers or exercise at all on one day of the week: this was to enable delivery of shop-bought goods to prisoners and the exchange of clothing and bedding (para.3.2);
- Symptomatic prisoners had been locked in their cells for up to two weeks with no opportunity to come out for a shower due to the lack of space for a protective isolation unit (para.2.2).
These shocking findings accord with what we are repeatedly and vividly told by our clients, many traumatised by their experience. Clients add further detail that may have been missed, not known, or not included by the Inspectorate. We were recently told by a distressed client, who is experiencing prison for the first time, that at HMP Wandsworth the prison cannot facilitate central heating and hot water, it is one or another and they opt for heating, so he had not had a hot shower in almost a year. In addition, reports of mushrooms growing in the showers and an infestation of birds covering the walls in excrement (which was rapidly painted over by inmates before the Inspectorate visited), creates a truly horrendous picture of a place where people are being held for 23 ½ hours a day. These are conditions hard to believe, but manifestly true.
The Howard League have reported in their briefing note “100 days of Solitude”, dated 2nd July 2020, that “Prisons are devoid of purposeful activity and opportunities for people to make amends…. Following the suspension of face-to-face visits, the implementation of video-calls to enable prisoners to stay in contact with their families is delayed and, in some prisons, non-existent.” The conditions have been particularly challenging and damaging for children and young people in prison.
The Prison Reform Trust have described the situation in prisons as “inhumane and untenable…it is also unlawful”. The Joint Committee on Human Rights have concluded that “the restrictive lockdown regimes in prisons…have left prisoners in solitary confinement for long periods in conditions likely to engage the right to freedom from inhuman and degrading treatment (Article 3 ECHR)”. They have also called for greater transparency to ensure that prisoners and their families are able to understand the basis on which decisions are made, including the publication of evidence, and measures under consideration to curb the Covid outbreak in custody. At present, we contend, communication is poor, thus heightening tensions as well as hardship.
The truth is that the pandemic has had an impact on almost every aspect of prison life. Locking human beings behind a door for hour upon hour, day upon day, is barbaric. Scope for rehabilitation is zero. This is not a technical point in mitigation, but a matter going to the heart of the sentencing process. The burden is on defence lawyers to get the message across.
The Legal Principles: Application of R v Manning
The Court of Appeal judgment in R v Manning is well-known by all who practice in the criminal courts. The judgment was given on 30th April 2020, in the peak of the first lockdown. It said at para.41 and 42:
“41. …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 judgement 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.”
This has been further endorsed by the Sentencing Council, stating:
“Throughout the sentencing process, and in considering all the circumstances of the individual case, the court must bear in mind the practical realities of the effects of the current health emergency. The court should consider whether increased weight should be given to mitigating factors, and should keep in mind that the impact of immediate imprisonment is likely to be particularly heavy for some groups of offenders or their families.”
On the face of it, therefore, the sentencing courts appear to have been influenced in favour of a reduction in sentence, bearing in mind the radical change in environment that the pandemic has brought about. There is no doubt that the impact of a custodial sentence is going to be immeasurably tougher on every inmate, thus, the presumption in favour of a discount is surely established. Nevertheless, the appellate court does not appear to have seen things as being quite so straightforward.
There are now large numbers of Court of Appeal authorities that reference R v Manning and consider how the “Covid discount” should be applied. Two conclusions which can be deduced from these are: i) the giving of a discount is not automatic; ii) the way in which a discount applies is fact specific.
In Korta-Haupt v Chief Constable of Essex  EWCA Civ 892, the Court of Appeal considered two appeals in relation to sentences imposed for contempt of court arising from breaches of gang-related injunctions. In one case, 140 days detention in a YOI had been imposed, in the another, 84 days detention was imposed. The Court of Appeal said (at para.30):
“… both judges gave consideration to the impact of Covid-19 on any custodial sentence. The significance of the pandemic, as was made clear in Manning , is that the impact of a sentence is likely to be heavier because of conditions in detention, lack of visits and anxiety. There is no entitlement to a 'Covid discount' – it all depends on the circumstances. In this case, there were no individual features of either appellant's situation that suggested a reduction was called for. The emergency had not prevented them from travelling the country during lockdown and the additional burden of the pandemic on them and their families during a relatively short period of detention was not significant.”
In that case, a key consideration against giving a reduction appears to have been the relatively short sentence imposed, which was not perceived to have a significant impact on the defendants and their families. Whether this was a correct approach is open to argument. Short or long, a sentence devoid of basic human dignity is truly oppressive. Thus, to measure the justice of a discount, as a matter of principle, by length of sentence, is arguably unfair. This, again, is a matter for close attention in preparing specific, Covid-related mitigation, during the Covid era. Arguably, there should be an entitlement to a discount, should there not?
In R v Whittington  EWCA Crim 1560, a case in which the applicant was sentenced in September 2018 before the Covid pandemic, and appealed significantly out of time, the Court of Appeal held that it will rarely be appropriate to reduce long sentences imposed prior to the pandemic on the basis of the harsher regime. The Court stated in relation to reducing the sentence (at para.30):
“it will be rarely – if ever - appropriate to do so in respect of a long sentence passed many months before the pandemic started…we think it likely that particularly cogent evidence of the increased harsh impact of imprisonment because of the pandemic will be needed before such a course should be contemplated in the case of a long term prisoner. The more serious the offence, and the longer the sentence, the less the pandemic can weigh in the balance in favour of a reduction unless there is clear, cogent and persuasive evidence of a disproportionately harsh impact on the prisoner. Over the course of a long sentence the period of time during which the prisoner is subject to lock down because of the pandemic might be quite short in relative terms. It is for prison governors to do what they can to alleviate the worst adverse effects. The course of the pandemic is uncertain. The current lockdown is due to end in early December. We hope that prison conditions might return to something near normal in the near future. We do not wish to say anything to encourage long term prisoners with no other viable grounds of appeal to apply to this Court for leave to appeal against sentence simply on the grounds of the pandemic. Such applications are likely to be given short-shrift.”
Again, the fairness of ignoring long periods of deprivation of traditional prison rights is a moot point. We suggest that undue hardship should always be recognised. To what extent is a matter of judgment in a given case. But length of sentence ought not to be a determining factor at a time of unparalleled harshness in modern day prison conditions.
In the event, the prognosis in R v Whittington of the lockdown ending in early December 2020 and hope that prison conditions may return to something near normal in the near future, was somewhat optimistic. Indeed, those coming to be sentenced now, and in the near future, will have experienced the equivalent of a two year sentence under the Covid regime. That is an inordinately long time to be banged up relentlessly, and we argue, the courts surely have an unqualified duty to recognise and reflect the situation.
The Court of Appeal in R v Whittington considered R v Jones  EWCA Crim 764, which was another case in which the appellant was sentenced before the first Covid lockdown, this time on 17th March 2020. In R v Jones, a case of attempt burglary and possession of class A drugs, the Court was persuaded that the prison conditions should lead to a reduction in sentence (eight months reduced to six months). The Court of Appeal in R v Whittington distinguished R v Jones on the basis that it was an exceptional case in which the sentence was short and the sentence was imposed days before lockdown began, indicating that a short sentence is no bar to a discount being applied. Such distinctions of approach are questionable when all of the prison population is suffering the same ordeal. An over technical perspective is, we suggest, not the correct one.
In fact, the large majority of reported Court of Appeal cases that apply R v Manning have endorsed the discount that had been applied in the lower court, although it is not always easy to ascertain the precise discount given.
In White v CPS  EWCA Crim 141, Covid restrictions had impacted the availability of accommodation on her release from prison; the Court considered the current prison conditions when deciding the correct starting points, as well reducing the three year starting point to two years, to reflect the “very strong personal mitigation” and the impact of Covid on the accommodation available to her (para.20-22). In R v Healey  EWCA Crim 181 the defendant was sentenced to 32 months, and the reduction of 2 months on the basis of prison conditions was endorsed, the Court of Appeal declining to increase this discount.
In other cases, the discount has been applied by suspending a sentence rather than imposing immediate custody.
In R v Sharkey  EWCA 1876, a 21 year old appellant of good character, who pleaded guilty to dangerous driving (and other offences) having driven from the police at speed without a licence or insurance before hitting another car, the principles in Manning were one of the reasons the Court of Appeal concluded a suspended sentence could be imposed. They noted that the “well known principles in Manning do not come into play in every case”, but in this case “there is some force in the argument advanced on behalf of the applicant that it was not necessary here to require a young man of previous good character to be sent to custody for a relatively short period and in the context of the current challenges faced by the Prison Service.” (para.15).
What has emerged from the authorities, however, is a lack of uniform approach and a worrying disparity in both decisions and, where afforded, discount. This, we suggest, is a serious problem. Consistency in sentencing has been recognised as a cornerstone of our criminal justice process, hence the modern-day preoccupation with guidelines. It cannot be appropriate, therefore, that the question of Covid discount be left entirely to the discretion of the individual judge. Now that significant time has passed, with the knowledge of the rigours the virus has place upon prisoners, clear guidance needs to be given as to the factors a sentencing judge should properly take into account when addressing the issue of reduction. Without such a framework, there is an ever present risk of injustice.
We have considered the idea of a Covid sentencing guideline. Whilst there is an argument for codification of the relevant principles, this is perhaps not a situation where rigidity is the correct response. Better that the Court of Appeal provides a clearer roadmap for Covid sentencing. At least then, those who have waited behind their door for months can feel that there is framework within which the Judge is to bear in mind such a material mitigating factor. At present, the situation is random. That is not justice.
There is no doubt that Covid has resulted in those in custody being subject to a harsher and more challenging regime. Defendants have also endured significant delays and uncertainty about the progression of their case. Months of oblivion have often characterised prison during the Covid period. The mental strain upon inmates, many already highly vulnerable, is unquantifiable. In this article we have focused on those who have been convicted, but there are thousands of unconvicted people having to tolerate these conditions as well.
Standing back, the combination of circumstances is highly likely to have negatively impacted even the most resilient individual and their families. As a result, their punishment has been significantly more onerous than in pre-pandemic times. The ramifications for a generation of Covid prisoners will not be felt for some time. In the meantime, we strongly argue, the reality of Covid custody needs to be recognised fully, identifiably, and realistically.
Many Covid-era defendants are still to come before the courts. It is unclear how much longer the current regime will persist. On the authorities, the Courts will have to be persuaded why a discount should be given in each case, and the way in which it applies may differ from case to case. Therein lies an endemic problem with the virus-related, sentencing process.
All of this emphasises the paramount importance of taking full and particularised instructions as to how the pandemic has impacted on one’s client, and arguing for an appropriate, and often significant discount to reflect the challenges they have faced. Generalised submissions are not sufficient. The detail matters. Painting the picture of incessant lock up, lack of visits, no work, absence of education, deprivation of exercise, minimal association, poor sanitisation, physical restraint, mental turmoil, lack of hope, fear of consequences, has become vital to the mitigation speech. Without it, it is all too easy for the courts to treat the Covid factor as peripheral. It is not. Quite the opposite.
The duty of the defender is to be fearless in representing the interests of our clients. Thus, the harsh reality needs to be brought home, loud and clear, whether at first instance or in the appellate court. There is nothing wrong with conveying the truth, and plain-speaking language is needed on the subject of pandemic-related sentencing. That reality is that the conditions of Covid imprisonment are bordering on the unacceptable in a civilised society.
On any view, a visible, tangible, proper discount in sentence is deserved as a result of the prison pandemic crisis. The difference between Covid imprisonment and its predecessor is vast. We, the defence advocates, have an unqualified duty to establish just that in every case, just as those responsible must wake up to the unacceptability of prison life. It was Dostoyevsky who said: “The degree of civilization in a society can be judged by entering its prisons”. Sadly, today, that standard is frighteningly poor.
  EWCA Crim 592
 In written evidence to the Joint Committee on Human Rights dated 21 July 2020, https://committees.parliament.uk/writtenevidence/9104/html
 7th Report of Session 2019-21 of the Joint Committee on Human Rights: “The Government’s response to COVID-19: human rights implications” at para.103 (page.35), dated 21 September 2020, https://committees.parliament.uk/publications/2649/documents/26337/default/
 See also R v Wilson  EWCA Crim 1284, involving an appellant sentenced in February 2020. The Court held at para 11 It was not stated to be the intention of either the Lord Chief Justice or the Sentencing Council that there should be a review of sentences already passed for those who are presently in custody or detention solely on the basis of the COVID19 emergency.
 Considering R v Randhawa  EWCA Crim 1071 and R v Jones  EWCA Crim 764
 See also R v Asghar  EWCA Crim 1796, an offence of perverting the course of justice, cf. R v Brown  EWCA Crim 1084, also perverting the course of justice.