A number of appellants recently took a case to their Court of Appeal, arguing that the length of their custodial sentences had been unfairly increased due to the pandemic.

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The Release of Prisoners Order 2020

To understand this story, it is necessary to outline the legal changes that took place in 2020.

Previously, the majority of prisoners could be released at the halfway point of their custodial sentence. So, if someone was sentenced to 12 years’ imprisonment, he might be released after serving six years.

However, the rules changed on 1 April 2020 when the Release of Prisoners (Alteration of Relevant Proportion Sentence) Order 2020 came into force. Under the new laws, those serving at least seven years in prison for serious sexual and violent crimes can only be released on licence at the two-thirds point. This means that if someone is sentenced to 12 years’ imprisonment, he will be released after eight years – not six. The prisoner can therefore expect to serve a further one-sixth of the sentence than was previously the case.

The impact of the pandemic

The new legislation impacted anyone who was sentenced after 1 April 2020, even if he/she had actually been convicted by the court in the days, weeks or months before this date.

The coronavirus pandemic was in full force around this time, causing considerable delays to the court service. Lots of people had their sentencing hearing delayed – meaning they were then subject to the new law. Had it not been for the pandemic, they might have been sentenced prior to 1 April 2020, thereby avoiding the new rules.

A number of appellants took their case to the Court of Appeal, arguing that this was unfair.

The Court of Appeal

The appellants’ arguments were expressed as follows:

“The appellants each argue that through no fault of their own, or the defence generally, they will serve substantially more time in custody prior to the release than would otherwise have been the case if the matter had proceeded to sentence as originally intended. They say that this is manifestly unfair and that it is wrong in principle that an appellant, through no fault of his own, should suffer the detrimental effect of the 2020 Order when the court’s intention had been that they should be sentenced before those provisions came into effect.”

However, the Court of Appeal rejected the arguments put forward. It stated that ‘the court recognised the exceptional impact that the Covid-19 pandemic may have on sentencing decisions’. However, it did not ‘accept an analogy can properly be drawn, for the purpose of sentencing, between the effect of the pandemic on prison conditions, and the effect on the date of the sentence (with the resulting impact of the 2020 Order).’

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It is unlikely that there will be further attempts to challenge the effect of the 2020 Order, but we will closely monitor the situation to ensure the best outcomes for our clients.

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