The Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 (SI 2020/158) (‘The Release of Prisoners Order 2020’) came into effect on the 1st of April 2020. The Release of Prisoners Order 2020 makes fundamental changes to the sentencing of serious violent and sexual offenders.
This article will set out the changes that have been made, consider the impact and discuss the interplay in sentencing between the amendments and the guidance emanating from R v Manning (Christopher)  4 WLR 77;  EWCA Crim 592.
What has changed?
The Release of Prisoners Order 2020 makes a number of amendments to the Criminal Justice Act 2003 (‘CJA 2003’).
The key amendment is made to Section 244 CJA 2003. This used to provide as follows:
(1) As soon as a fixed-term prisoner, other than a prisoner to whom section 243A, 244A, 246A or 247 applies, has served the requisite custodial period for the purposes of this section, it is the duty of the Secretary of State to release him on licence under this section.
(3) For the purposes of this section “the requisite custodial period” means—
(a) in relation to a prisoner serving one sentence, one-half of his sentence…
Prior to the implementation of the Release of Prisoners Order 2020, all offenders sentenced to a determinate sentence would be released automatically by order of the Secretary of State once they had served one half of their sentence.
Article 3 of the Release of Prisoners Order 2020 amends section 244(3)(a) as follows: ‘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’.
The changes mean that an offender sentenced to 7 years or more for a ‘violent or sexual offence’ will no longer be released having served half of their sentence, but once they have served two-thirds.
The ‘relevant violent or sexual offences’ continue to be set out in Part 1 and Part 2 of Schedule 15 CJA 2003. The list includes offences such as Manslaughter, False Imprisonment, Sections 18 and 20 of the Offences Against the Person Act 1861, Cruelty to Children, Robbery, and Rape.
The changes made to section 244(3)(a) CJA 2003 by the Release of Prisoners Order 2020 are fundamental and far reaching. The changes signal a far more punitive sentencing regime for society’s most dangerous offenders.
Taking a very simple example: an offender is sentenced to 12 years’ imprisonment for Section 18 (Wounding with Intent). If he was sentenced to this on March 1st 2020 he would serve 6 years imprisonment and be automatically released. If he was sentenced to this on the 1st of April 2020, he would serve 8 years imprisonment before being automatically released. The impact is stark.
Interplay with the Manning Guidance
On the 30th of April 2020, the Court of Appeal (Criminal Division) passed judgment in the case of R v Manning (Christopher)  4 WLR 77;  EWCA Crim 592. The impact of this case was previously discussed in the June edition of the Crime Team Newsletter.
The key passages from the judgment are as follows:
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.
The Manning guidance applies across the board. Paragraph 42 states that where immediate custody is the only option in a particular case the length of that immediate sentence should take account of the fact that current prison conditions and regimes make the imposed sentence more onerous. Prison conditions due to the outbreak of COVID 19 are, therefore, a proper factor to consider when calculating the length of any immediate prison sentence.
The Release of Prisoners Order 2020 undoubtedly makes prison sentences more onerous and punitive for the most serious violent and sexual offenders by requiring them to serve two-thirds of their sentence in custody. Given the Manningguidance urging courts to consider prison conditions when calculating the length of sentence, how do we square a more punitive regime on the one hand (through the Release of Prisoners Order 2020) with the note of caution in Manning?
The tension between the amendments made by the Release of Prisoners Order 2020 and the cautionary nature of Manningcame to a head in a seven-handed case brought before Leeds Crown Court in which Nigel Edwards Q.C. recently acted.
The matter was subject to trial in early January 2020. The Defendants who went to trial were found Guilty. A number of Defendants had pleaded Guilty prior to the trial taking place. Sentence was adjourned to allow all seven Defendants to be sentenced together. Those who had pleaded Guilty remained on bail, whilst those found Guilty were remanded into custody. The onset of COVID-19 and the national lockdown that followed meant that the Sentencing Hearing was pushed back way beyond the 1st of April 2020 and the bringing into force of the Release of Prisoners Order 2020.
The likely sentence that had been advised by trial counsel prior to trial, and immediately after, fell within the upper range for section 18 GBH, but only just. The resulting incident took place in a popular bar, where young men of largely good character injured others by stamping and striking with the base of a heavy vodka bottle.
Trial Counsel had advised a starting point of 9 years’ imprisonment, had Sentence taken place prior to the 1st of April 2020 this would have meant that the Defendants would serve four and a half years, less the time on remand, in custody. Owing to the delay in Sentence the same advice was given but the two-thirds rule was now in force. The Defendants privately instructed two silks to consider the law, advise and act for them at Sentence.
The Sentence took place in late May 2020. The case advanced at Sentence included:
There was significant unfairness in the starting point as the change in the law meant that the sentence would be much harsher than anticipated;
The delay in Sentence was not the fault of the Defendants but the result of circumstance, namely, COVID-19 and national lockdown, which prevented the court from dealing with the matter prior to the 1st April. This delay rendered the Defendants subject to the new sentencing regime;
The case of Manning must be considered, given the impact of COVID-19 on prison conditions. The COVID-19 regime in prison exacerbates the punishment itself - 23 hours per day lockdown in cells; the suspension of all visiting rights with no prospect of visits until a cure/vaccine had been developed or found;
The sentence fell on the cusp between two categories, but even if this was not accepted the circumstances allowed the Judge to attenuate accordingly;
The learned Judge should exercise discretion and pass sentence with consideration of the change in the law and the associated period anticipated to be spent in custody but for the delay.
Having heard seven mitigations during the Sentencing Hearing, the learned Judge accepted the arguments and passed a sentence of 6 years 11 months imprisonment. The Judge expressed the sentence in terms of the effects of COVID-19 on the Defendants and the impact of a quick and unexpected legislative change.
The impact of the Release of Prisoners Order 2020 on the release point for serious violent and sexual offenders marks a fundamental shift towards a more punitive sentencing regime.
Some may properly argue that such changes to sentencing legislation often coincide with political knee-jerk reactions in fast moving times. Many of the public may agree with these changes. However, we would all hope that the type of confluence of factors such as COVID-19 and legislative change do not clash against one another so starkly, if ever, again. Should such a clash again ensue submissions will need to be carefully crafted to take account of the law and judicial powers to avoid iniquity in such cases.
Nigel R Edwards Q.C. and Daniel Walker