On 6 February 2023, AA received a sentence of 6 months’ imprisonment for an offence of assaulting an emergency worker, a prison officer, in 2019, when he threw a cup of hot liquid at him. There was a delay of more than eighteen months in charging the case. In the meantime, after spending a month in segregation, AA was released on licence on the previous sentence. He complied with the terms thereof without fault. AA appealed against the immediate sentence submitting that it was both manifestly excessive and wrong in principle. The Registrar referred the application for leave to the Full Court. On 3 March 2023, the Court (Edis LJ; Bryan J; HHJ Dhir KC) granted leave and, having heard submissions, allowed the appeal, quashing the immediate custodial sentence and replacing it with a suspended sentence order.
When giving judgment, Edis LJ echoed the Lord Chief Justice’s guidance in R v Manning [2020] EWCA Crim 592; [2020] 4 WLR 77 holding that there was “a further exceptional factor” in AA’s case since he “was sentenced at a time of very high prison population”. The Court referred to the Government’s announcement of Operation Safeguard in November 2022 in which 400 police cells would be “repurposed” as longer-term holding facilities to ease the pressure on the prison service (§§18-22). Edis LJ quoted from a letter which the Deputy Prime Minister wrote to the Lord Chief Justice on 24 February 2023 which accepted inter alia that detention would be harsher than before on account of high occupancy levels, reduced access to rehabilitation programmes and the possibility of prisoners being detained further away from home.
Giving general guidance (§22), the Court held that the additional factor “will principally apply to shorter sentences because a significant proportion of such sentences is likely to be served during the time when the prison population is very high. It will only apply to sentences passed during this time. We have identified above the starting point for the relevance of this consideration for sentencing, which we take to be the implementation of Operation Safeguard 14 days after 6 February 2023. Sentencing courts will now have an awareness of the impact of the current prison population levels from the material quoted in this judgment and can properly rely on that. It will be a matter for government to communicate to the courts when prison”.
Therefore, those persons with a realistic prospect of sentence suspension can properly rely on the current overcrowding as an additional factor which militates in favour of suspension. They need only reference R v Ali [2023] EWCA Crim 232.
Jordan is part of 9BR’s Criminal Team. He was instructed by Leila Abdul-Rasool of Lewis Nedas Law.