“(a) the punishment of offenders, (b) the reduction of crime (including its reduction by deterrence), (c) the reform and rehabilitation of offenders, (d) the protection of the public, and (e) the making of reparation by offenders to persons affected by their offences.”
“assessment of sentence should follow principles and guidance without regard to the practical effect of the licensing regime in force at the time of commission of the offence…”
“Citation and commencement 1. This Order may be cited as theRelease of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 and shall come into force on1st April 2020 . Interpretation 2. (1) In this Order— “the 2003 Act” means theCriminal Justice Act 2003 , “relevant violent or sexual offence” means an offence listed in Part 1 or 2 of Schedule 15 to the 2003 Act for which a sentence of life imprisonment may be imposed. (2) In this Order, a reference to a term of imprisonment is to be read as including a reference to a sentence falling withinsection 237(1)(b) of the 2003 Act . Reference insection 244 of the 2003 Act 3. Insection 244 of the 2003 Act (duty to release prisoners), the reference to one-half in subsection (3)(a) is to be read, in relation to a prisoner sentenced to a term of imprisonment of 7 years or more for a relevant violent or sexual offence, as a reference to two-thirds. Reference insection 264 of the 2003 Act 4. Insection 264 of the 2003 Act (consecutive terms), the reference to one-half in subsection (6)(d) is to be read, in relation to a sentence to a term of imprisonment of 7 years or more for a relevant violent or sexual offence, as a reference to two-thirds. Application provisions 5. Articles 3 and 4 do not apply— (a) in relation to any sentence imposed before the day on which this Order comes into force, (b) in relation to an offender who was aged under 18 at the time the sentence for the relevant violent or sexual offence was imposed, or (c) in relation to a sentence imposed undersection 236A of the 2003 Act (special custodial sentence for offenders of particular concern) or section 265 or 278 of the Sentencing Code.”
“7. Policy background What is being done and why? 7.1 Offenders serving standard determinate sentences are automatically released half-way through their custodial sentence, including those convicted of very serious offences. The objective of this change is to ensure the most serious of these offenders serving long sentences spend two-thirds of their sentence in custody, bringing their point of release into line with the release provisions for those serving extended determinate sentences (whose earliest point of release, at the discretion of the Parole Board, is the two-thirds point in their custodial term). … 7.8 These robust sentences for dangerous and serious offenders ensure that the time they spend in custody reflects the severity of their crimes and takes account of the risk they pose to the public. The additional extension and 12-month licence periods also ensure the sentence remains in force for a ‘longer than normal’ period for a fixed term sentence – in recognition of the need for ongoing public protection measures following release. While the public can have confidence in the sentences available for these offenders assessed by the courts to be dangerous or of particular concern, automatically releasing other serious sexual and violent offenders at the half-way point does not align with this more robust approach following the introduction of the EDS and SOPC. 7.9 Offenders not deemed dangerous may be convicted of a serious offence, but still be sentenced to a standard determinate sentence. This means that an offender could be convicted of an offence for which the maximum penalty is life, and receive a lengthy sentence, but because the court has determined that they have not met the threshold for ‘dangerousness’ and to whom the SOPC does not apply, they will automatically be released half-way through their sentence. 7.10 This may be affecting public confidence in sentencing. A recent report by the Sentencing Council found that that nearly three quarters of the public (70%) surveyed thought sentences are too lenient, and almost half of victims did not have confidence in the fairness of the criminal justice system (49%). The report can be found here: https://www.sentencingcouncil.org.uk/wpcontent/uploads/Public-Knowledge-of-andConfidencein-the-Criminal-Justice-System-and-Sentencing.pdf 7.11 For the sake of public confidence in the administration of justice, this Order will extend the period that the most serious offenders sentenced to standard determinate sentences will serve in custody.”
“The submission is based on a fallacy. The actual sentence was 7 years imprisonment. The release provisions did not and should not have affected the judge’s sentencing decision. What he was required to do was to explain the effect of the sentence in the context of the applicable statutory provisions relating to release. He did not “intend” that the appellant should be released after 3½ years: that would simply have been the consequence if the 2003 Act had applied to the sentence, and he was required to state that consequence in open court.” (2) In R v Giga[2008] EWCA Crim 703 [2008] 2 Cr App R (S) 112 Bright was followed on similar facts – see per Moore-Bick LJ at [17]: “the fundamental principle [is] that the judge’s task is to determine the overall length of sentence, not how long the defendant will actually spend in custody.” (3) In R v Round[2009] EWCA Crim 2667 [2010] 2 Cr App R (S) 45 an application for leave to appeal against sentence based on discrepancies as to the impact of the Home Detention Curfew provisions on the offender’s release date was dismissed. Hughes LJ VP said at [44]-[45] and [49]: “the general principle that early release, licence and their various ramifications should be left out of account upon sentencing is, as it seems to us, a matter of principle of some importance. The wide possible range of regimes for early release and licence strongly reinforces the undesirability, never mind the impracticability, of courts being required to reflect the differences in their sentences. … Our clear conclusion is that it is not wrong in principle for a judge to refuse to consider early release possibilities when calculating his sentence or framing the manner or order in which they are expressed to be imposed. We are quite satisfied that it is neither necessary, nor right, nor indeed practicable, for a sentencing court to undertake such examinations. Ordinarily, indeed, it will be wrong to do so, although there may be particular cases in which an unusual course is justified.” (4) In R (Robinson) v Secretary of State for Justice[2010] EWCA Civ 848 [2010] 1 WLR 2380 the Court of Appeal explained that the statutory early release provisions regulate the way in which a determinate custodial sentence takes effect – they are not part of the sentence itself. It considered that the observations of Hughes LJ VP in Round amounted to “binding principle” – see per Moses LJ at [20] and [25]: “That distinction between the sentence passed by the court and the administrative arrangements for early or conditional release is recognised in a firm and up-to-date admonition by the VicePresident of the Court of Appeal Criminal Division, Hughes LJ, namely that the early release and licence provisions should be left out of account as a matter of principle: see Round and Dunn v R[2009] EWCA Crim 2667 , paragraphs 44 and 45. It is worth quoting from that judgment since it makes it clear that it was intended to be a deliberate exposition of a binding principle. [The Court then set out paragraphs 44 and 45 of Round]. … For the purposes of the issue in the instant appeal article 6 requires an answer to the question: what was the sentence passed by the court with which it is said the legislature has interfered? The answer under English jurisprudence is that it was a sentence of five years. The legislative changes have not affected or increased the level of that sentence.” (5) In R v Tony Dunn[2012] EWCA Crim 419 the appellant had committed a series of similar offences which straddled the date on which the early release provisions in 25. 2003 Act came into force. He was sentenced to 15 years’ imprisonment on all offences. For those offences committed after the 2003 Act came into force he was entitled to be released after serving 7½ years. For those offences committed earlier he was not entitled to be released until he had served 10 years. The latter point was overlooked by counsel and by the sentencing judge. The judge told the appellant that he would be released at the 7½ year point. The case was referred back to the judge, but outside the 56 day period in which the sentence could have been amended (s385 Sentencing Code;s155 Powers of Criminal Courts (Sentencing) Act 2000 ). But for the expiry of the time limit there was no doubt that the judge would have amended the sentence so as to secure that the release date would be at the 7½ year point. Instead, the judge encouraged the appellant to appeal and indicated that it was his wish that this court should reduce the sentence on the earlier offences so as to ensure that he was released at the end of 7½ years: “There you are, Mr Dunn. This is highly procedural, but we do not want you being disadvantaged many years down the line. We want you to be able to be released at the earliest possible opportunity, subject to your progress in custody. This is a procedural anomaly. It is going to be resolved.”
“11. It is clear, in our judgment, that in passing sentence a court should not take into account the effect of the different regimes for early release. The question for us remains whether the appeal should nevertheless be allowed as the appellant’s expectation had been raised by the judge that the result of the appeal would be that this court would correct what the judge believed had been an error on his part. 12. We have had the benefit of full argument that the judge did not. Indeed, the stance of the prosecution at the time the matter was referred back to him was to encourage the judge to express himself in the way that he did. We do not think we should give effect to the error made by the judge. Indeed we do not think that it does create the sort of injustice suggested on behalf of the appellant. While on the sentences for the offences committed before April 2005 he will not be entitled to automatic release after seven-and-a-half years, he will be eligible for parole. The Parole Board will release him after 7½ years if satisfied that he is no longer a danger to young girls with whom he may come into contact. We do not think that creates an injustice. We are aware that there are sometimes delays in the consideration of applications by the Parole Board. We would strongly urge the Parole Board to consider the appellant's case immediately after the period of seven-and-a-half years of the sentence has been completed. When reaching its decision it will no doubt take into account the clearly expressed wishes of the trial judge. 13. Further, it has been pointed out to us on behalf of the prosecution that, had the judge had the power to amend the sentence and had he done so as he would have wished, it would have been open to the prosecution to seek to refer the matter to the Court of Appeal via an Attorney General's Reference because it would have meant that sentences substantially reduced from fifteen years would have been imposed for offences which were in many ways more serious than those for which sentences of fifteen years’ imprisonment were imposed.” (6) In R v R[2012] EWCA Crim 709 this court dismissed an appeal where the sentencing judge had erroneously indicated that the appellant would be released earlier than would in fact be the case – see per Calvert-Smith J at [7]: “It is not for judges to try to work out dates of release in advance. Although this is a case where such workings out would probably have resulted in a lower sentence, there may be many cases in which the exact opposite would be the case if judges were to concern themselves with release dates, rather than the appropriate sentence according to the guidelines and decided cases which help to set the appropriate sentence in any given case”. (7) In R v Francis[2014] EWCA Crim 631 the trial had been adjourned through no fault of the appellant. As a result, he was sentenced after a change in the early release provisions came into effect. He appealed against sentence and contended that the guidelines of the Sentencing Council (which pre-dated the change) should be adjusted to take account of the change to the early release provisions. The appeal was dismissed – see per Treacy LJ at [39]-[42]: “39. The suggestion that the sentencing guideline should be adjusted in some way, to reflect the fact that under the previous dangerousness provisions a person sentenced to an IPP would be eligible for release, subject to a favourable review by the Parole Board, at the halfway point in his sentence, is misconceived. The guidelines apply to sentences imposed by courts at any time after the guidelines come into effect. They are unaffected by legislation which governs early release possibilities. If those possibilities change from time to time as a result of later legislation, that is not a matter for the court. 40. In R v Round ; R v Dunn[2010] 2 Cr App R (S) 45 , this court noted that there were at least five different regimes for early release on licence. The court stated that the general principle was that early release, licence and the various ramifications should be left out of account when sentencing. This court's clear conclusion was that it was not wrong in principle for a judge to refuse to consider early release possibilities when calculating the sentence. The court was satisfied that it was neither necessary, nor right or practical for a sentencing court to undertake such examinations. Ordinarily, it would be wrong to do so. The court's responsibility is to pronounce the correct sentence and to leave other matters out of account. 41. That very clear statement of principle by Hughes LJ (as he then was) applies firstly to the submission made in relation to the sentencing guidelines. It also applies to a further submission made which was to the effect that since these offenders were sentenced some two days after LASPO came into effect, and since the trial in their case had been postponed through no fault of theirs when the pre-LASPO regime was in place, the judge should have adjusted the length of their sentences accordingly. 42. The observations in R v Round ; R v Dunn seem to us to apply with equal force to this argument. With the introduction of the new legislation, the applicants could no longer be sentenced to a term of imprisonment for public protection or to an old style extended sentence. If found to be dangerous, the new extended sentence regime applied to them. The task of the judge was limited to fixing the correct custodial term. He was not obliged to indulge in calculations reflecting licence provisions. We are therefore unpersuaded by arguments relating to the length of the custodial term.” (8) In R v Burinskas[2014] EWCA Crim 334 [2014] 1 WLR 4209 the court was concerned with the effect of amendments to the dangerous offender provisions in the 2003 Act which were introduced by theLegal Aid Sentencing and Punishment of Offenders Act 2012 . The court rejected the submission that suggested anomalies in the resultant release date should be taken into account when sentencing. Lord Thomas CJ said, at [38], “a sentencing judge may not, when sentencing [to a fixedterm custodial sentence], take account of the early release provisions.”
“We agree. It is not for the court to correct the anomaly, if anomaly it be, by reducing the appropriate term to take account of the early release provisions. That would, in our judgment offend the general principle and undermine the purpose of s.246A which is to ensure that those subject to the new extended sentences serve one third more of the appropriate custodial term than those sentenced under the old regime.” (9) In R (Abedin) v Secretary of State for Justice[2015] EWHC 782 (Admin) the claimant contended that early release provisions amounted to a retrospective increase in the penalty imposed by the court, such that they were incompatible witharticle 7 ECHR . The claim was dismissed. Laws LJ referred to Robinson as well as “a long line of Strasbourg authority which draws a distinction between the penalty imposed and the means of its enforcement or execution.”
“I agree. I propose to add only this in view of my own personal experience of criminal jurisdiction. In the course of his submissions Mr Southey QC put this proposition: namely that judges in criminal courts when sentencing do to some extent take account of release provisions. That was the submission made. It is, with respect, plainly wrong. It flies in the face of what is set out at paragraph 20 in the judgment of Moses LJ in the case of Robinson already cited by my Lord. It also is contrary to any number of decisions of the Court of Appeal Criminal Division where even in cases where a judge has misapplied the release provisions in his explanation of the sentence, the sentence has not been interfered with (see for instance R v Bright[2008] EWCA Crim 419 ). The penalty imposed by a sentencing judge is the sentence he announces in court. Were we to attempt to reflect the release provisions in his sentence at any given time confusion and chaos would reign.” (10) In R (Stott) v Secretary of State for Justice[2018] UKSC 59 [2019] 1 Cr App R (S) 47 the Supreme Court held that the early release provisions for extended determinate sentences were not incompatible witharticle 14 ECHR . In doing so, it rejected the claimant’s submission that a determinate sentence can be divided into one part (up to the point of early release) that takes effect for the purpose of punishment and deterrence, and a separate part (after that point) that takes effect for the purpose of avoidance of risk (see per Lady Black JSC at [124] and Lord Hodge JSC at [186]). In that context Lord Hodge drew attention to the Round line of authority – see at [188]: “In fixing the appropriate sentence of imprisonment of a convicted person, the judge does not take account of the statutory provisions for early release. In R v Round [2010] 2 Crim App R(S) 45, para 44, Hughes LJ described this requirement to disregard early release in fixing a sentence of imprisonment was “a matter of principle of some importance”
“(i) The early release arrangements do not affect the judge’s sentencing decision. (ii)Article 5 of the Convention does not guarantee a prisoner’s right to early release. (iii) The lawfulness of a prisoner’s detention is decided, for the duration of the whole sentence, by the court which sentenced him to the term of imprisonment. (iv) The sentence of the trial court satisfies article 5.1 throughout the term imposed, not only in relation to the initial period of detention but also in relation to revocation and recall. (v) The fact that a prisoner may expect to be released on licence before the end of the sentence does not affect the analysis that the original sentence provides legal authority for detention throughout the term.”
“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 wellknown. 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 Covid19. 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.”
“You will serve up to two thirds of the sentence in custody on the assumption that the [2020 Order] has come into force. I have been unable to locate the relevant commencement order… If the order is not yet in force, you will serve one half.”
“…there is no slip to correct. In calculating the total sentence for each defendant, I set the lengths thereof as those which I considered to be just and proportionate to the offending, and the date of release is a matter for the executive not the courts. The courts conventionally take no account of release provisions when deciding the appropriate sentence.”
“To make an adjustment, as I am invited to do now, so that he serves effectively only six years would be to [frustrate] in my judgment the intention of Parliament and it would be wrong for me to do so. I, therefore, am not going to revise the sentence that I have imposed. Parliament had a very clear intention when they put into place and put into force [orders regulating the release of prisoners] and it is not my place to interfere with that. I arrived at the appropriate sentence taking into account everything and I have no reason today, in my judgment, to vary that.”
“In summary, from January of 2019 to September of 2019, individually and collectively, you two, and a significant number of other young men, were responsible for what at times gave the appearance of an almost complete breakdown in law and order in North and East Manchester. Your crimes of dishonesty, serious armed violence and complete disrespect for the police and communities in which you lived, have resulted in serious harm to the communities from which you came, and harm to the very many law-abiding people who live in them. Amongst the crimes you committed were robberies and an attempted robbery… It is, though, of vital importance to recognise that this case is not simply a case involving serious robberies and attempt so to do. It is about much more than that. Because such an approach would fail to recognise the impact upon the victims of both of you, but victims who were not the subject of attack by machete, knife or bolt croppers, but others whose lives have been so badly affected by you. They are the skilled men and women who lost their tools in Blossom Street, in Ancoats. The people who lived in the block of flats whose motorbikes were stolen in the dead of night by armed men. Or Thomas Livingstone who not only had to suffer the indignity of having his bike stolen from him, but when he had the audacity to complain he was met with intimidation and threats of serious violence. And poor Mr Amjad Zuba. A trapped taxi driver, himself subject to intimidation, witnessing another taxi driver subject to similar horrific intimidation on the streets of this city. And it is about the public at large who would have seen much of the lawlessness, seeing you driving through the streets of Manchester without helmets and at speed. They would feel that all law and order had broken down.”
“in making the assessment of whether the psychological harm in a particular case can properly be described as severe, or serious (if a different guideline is being considered), the judge will act on the basis of evidence and will be required in the usual way to give reasons for his or her decision in the sentencing remarks. If the evidence was not such as could provide a sufficient foundation for the judge's assessment, the point can be raised on appeal. Save where there is an obvious inference to be drawn from the nature and circumstances of the offence, a judge should not make assumptions as to the effect of the offence on the victim. The judge must act on evidence. But a judge will usually be able to make a proper assessment of the extent of psychological harm on the basis of factual evidence as to the actual effect of the crime on the victim. Such evidence may be given during the course of the trial, and the demeanour of the victim when giving evidence may be an important factor in the judge's assessment. The relevant evidence will, however, often come, and may exclusively come, from the VPS. The court is not prevented from acting on it merely because it comes from a VPS.”
“I do not agree that I am necessarily restricted in the way [Counsel for the Crown] submits. Whilst I must follow binding authority if I am left with no alternative, I do not believe that anyone knowing the full circumstances of this case would feel that an injustice was occurring if I were to sentence the defendant to a term which when the 2020 Order is applied, means he will serve the same custodial term as if I had sentenced him on the 31st of March before the order came into force. On the contrary, the defendant may well feel a burning sense of injustice if I made no allowance for the circumstances that occurred in March. …I consider, having regard to the comments in Hardy, that these are rare and exceptional circumstances, and that I have a power or discretion – whichever is the appropriate word – to sentence a defendant in the way that I have indicated, and that I do now.”