Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020
When sentencing defendants subject to the new, harsher regime governing early release, should judges reduce the overall term if a defendant is sentenced after the new provisions came into force due to a delay that is no fault of his own?
This article reviews the key recent judgment in the Court of Appeal (R v Patel & Ors  EWCA Crim 231) in which Jo Sidhu QC led arguments in conjoined appeals for thirteen appellants.
The New Regime
On 1 April 2020, the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 (‘2020 Order’) came into force. The principal effect of this Order is on the early release provisions as they relate to offenders convicted of certain violent or sexual offences, and who are sentenced to a fixed term custodial sentence on or after 1 April 2020 of at least 7 years. The Order applies to sentences passed on or after that date irrespective of the date of the commission of the offence or the date of conviction. No transitional or saving provisions accompanied the new Order.
Prior to the 2020 Order coming into force, offenders subject to a fixed term of imprisonment were entitled to be released at the half way point. As a result of the Order, certain defendants must now serve two thirds of their custodial term before such an entitlement arises. The increase in the minimum threshold plainly marks a more severe approach taken by the government to serious offenders.
The purported justification for the new provisions was to ensure that the time spent in custody by those described as dangerous and serious offenders “reflects the severity of their crimes and takes account of the risk they pose to the public.” (2020 Order, Explanatory Memorandum).
13 appellants sought to challenge their respective sentences. One of them was Levar Thomas, who I had also represented at trial.
Thomas had faced charges of conspiracy to rob, murder and an alternative charge of manslaughter. On 5 March 2020, he (and two of his co-defendants) were acquitted of murder but convicted of manslaughter and conspiracy to rob. The sentencing hearing was fixed for 20 March. However, between the date of conviction and the scheduled date for the sentence, both leading and junior prosecuting counsel had to isolate themselves due to experiencing Covid symptoms. As a result, shortly before 20 March the court adjourned the date for sentence administratively to 23 April. No consideration was given to arranging for prosecuting counsel to appear via a link. Nor was any opportunity given to the defence to object to the postponement. On the adjourned date, the appellant received a term of imprisonment of 11 years and 3 months. Since the new Order had come into force 3 weeks prior to the adjourned sentence date the appellant, through no fault of his own, was now obliged to serve an additional substantial period in custody before he would be entitled to be released.
Leave was granted to appeal for Thomas on the following ground:
The Appellant suffered a substantial unfairness caused by the postponement of his sentence hearing (made at the request of the prosecution) because, in consequence of the delay, he ceased to be entitled to release after serving one half of his sentence. Instead, due to the coming into force of the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2019 on 1st April 2020, he would only be entitled to release after serving two thirds of his sentence. The difference between one half and two thirds in the Appellant’s case was 2 years, 2 months and 2 weeks. The learned Judge wrongly declined to reduce the otherwise proportionate length of imprisonment imposed so as to remedy the unfairness caused to the Appellant.
The Appellant’s case was joined with a number of other appeals where similar complaint had been made that sentencing had been adjourned until after 1 April 2020, mostly for reasons related to delays caused by the Covid-19 pandemic, and in all cases in circumstances where it could not be said that any of the appellants had been responsible for the postponement. As such, all the appellants had suffered unfairness. All argued, therefore, that the sentencing judge in their respective cases should have discounted the term of imprisonment (otherwise justified) to reflect the additional time that would have to be served consequent to the Order coming into force. (para 29 of Judgment)
Key Submissions on Appeal
- While it was accepted that, as a general principle, the release regime was not a matter for the sentencing judge, that principle was neither universal nor inflexible. Whether the principle applied depended on the specific circumstances of each case. Judges are entitled to take an exceptional course where such a course would avoid a serious injustice.
- The Appellants had a legitimate expectation that each would be sentenced in accordance with the sentencing regime applicable at the time of both conviction and the original sentence hearing date. In such circumstances, a sentencing judge retained a residual discretion to correct an injustice visited upon a defendant by exercising his inherent powers to adjust the sentence, and thereby to eliminate the injustice caused.
- Moderating a sentence to reflect an unusual or unprecedented situation had previously been justified in a range of other circumstances. For example, in consequence of the effects of the Covid-19 crisis in the prison system (R v Manning) or where a defendant had assisted the prosecution as a police informant.
- The test that should be applied was therefore four fold (para 32):
- Has an unfairness arisen in consequence of a delayed sentence?
- Has the unfairness arisen in consequence of a legitimate expectation that has not been met?
- Does a judge have the authority to remedy that failure to meet the legitimate expectation?
- Is there a precedent for judges to remedy such a frustrated legitimate expectation?
It was submitted that all four questions should be answered in the affirmative.
Court of Appeal’s Decision
In rejecting all of the appeals, the Court gave the following reasons:
- As a general principle, "It is no part of the sentencing court’s function to set the point at which the offender will be released, or to calculate the sentence by reference to the date at which the offender will be released. The date at which the offender is entitled to release is a consequence of the sentence that is imposed, rather than an inherent part of the sentence. The determination of the release date is undertaken administratively in accordance with the statutory regime and (where appropriate) any decision of the Parole Board.” (para 8)
- “It follows that the sentencing court’s role is limited to determining the sentence and . . . The judicial function of determining the length of sentence must be undertaken by reference to the statutory provisions and guidance without regard to the practical effect of the early release provisions”. (para 9)
- “Nothing in the legislative framework, or the definitive guidelines of the Sentencing Council, requires, or explicitly permits, a sentencing court to take account of the impact of the early release provisions on these decisions.” (para 22)
- “It would defeat the statutory purpose of the early release provisions if their effect were ordinarily to be taken into account when passing sentence”. (para 23)
- “Accordingly, the courts have consistently made it clear that a sentencing judge should not ordinarily take account of early release provisions when deciding the length of a determinate custodial sentence”. (para 24)
- A harsher early release regime did not amount to a mitigating factor for the purposes of sentencing. (para 42)
- The Court of Appeal cited a number of authorities in support of the above-stated principles, including:
- R v Bright  EWCA Crim 462  2 Cr App R (S) 102
- R v Giga  EWCA Crim 703  2 Cr App R (S) 112
- R (Khan) v Secretary of State for Justice  EWHC 2084 (Admin) 
- In the view of the Court, “This represents an extensive, consistent and binding body of authority, rooted in principle, that has been considered and endorsed by the Supreme Court. It is based on the different roles played by the judiciary and the executive.” (para 25).
- Notwithstanding these authorities, the Court acknowledged that in R v Round  EWCA Crim 2667  2 Cr App R (S) 45, while restating the general principle that “ordinarily” judges should ignore release provisions when sentencing, Hughes LJ observed that “there may be particular cases in which an unusual course is justified.” (para 24(3), para 26). Further, that “nothing in the authorities explicitly ruled out the possibility that there may be exceptional cases where it is appropriate to take account of the impact of early release provisions.” (para 37).
So When is a Case Exceptional?
The common issue for the thirteen appeals argued before the Court was not a dispute about the principles set out in the authorities, but “whether exceptions to that general principle should be made in these particular cases.” (para 27)
The Court, rather unhelpfully, was unwilling to define the ambit of any exceptionality save to observe:
“If there is any exception to the principle that Hughes LJ identified in Round then the exception must, itself, be rooted in principle and consistent with the legislative framework that governs sentencing. The mere fact that the sentencing process has been delayed is not sufficient, as the authorities show. Nor is it sufficient that the process has been delayed for reasons that are beyond the control of the individual appellant, as Francis shows. Nor is it sufficient that the reason for the delay was unforeseen or unforeseeable.” (para 43)
In relation to the specific appeal on behalf of Levar Thomas, the Court rejected the proposition that “the fact that the offender has been given an expectation that he will be sentenced before 1 April 2020, or otherwise sentenced in a way that defeats the change introduced by the 2020 Order, amounts to a justification for departing from the principle identified in Round if, in the event, sentencing takes place after 1 April 2020 . . there is no “legitimate expectation” because any expectation engendered is contrary to the legislative framework and the principle identified in Round. This is not capable of founding an enforceable right based on the principle of legitimate expectation” (para 44)
The decision in these appeals was premised on an explicit recognition that each appellant would face a longer period of incarceration in consequence of a delay in their sentencing hearing through no fault of his own. Although the Court was not prepared to state so expressly, it must therefore have been recognised that each had suffered unfairness, if not an injustice. Yet the Court took the view that, in line with previous authority, nothing could be done or should be done to correct that unfairness. In essence, the rationale behind the decision was that to interfere with the sentences would elide the constitutional separation of powers between the judiciary, the legislature and the executive. However, in the case of R v Round (ante) Hughes LJ had left the door open for the courts to do just that: to step in where the unusual and extraordinary circumstances of a case justified, if not demanded, the intervention of a judge to prevent a legitimate sentencing regime from inflicting illegitimate consequences upon a blameless defendant. At the very least, the Court of Appeal in this judgment could have offered some clarification on what considerations or circumstances might permit a departure from the general principle. Instead, it merely provided a definition of exceptionality based on what it is not rather than what it might be. The Court was clear that any exception to the general principle must itself be rooted in principle. However, following this decision, it is doubtful that anyone is any wiser as to what exactly that principle might be.