A recent Court of Appeal case has considered recent changes to the early release provisions. The changes came about on 1 April 2020, when The Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 came into force.
This statutory instrument’s effect was to alter the early release provisions for some offenders receiving relatively determinate lengthy custodial sentences. Anyone convicted of a relevant violent or sexual offence and sentenced to 7 years imprisonment or more, will now be released after 2/3 of their sentence, rather than 1/2.
By way of example, an offender who received a sentence of 12 years imprisonment would be released after serving eight years instead of 6 years, so “adding” 2 years to the sentence served.
Of course, Parliament is entitled to pass more or less whatever laws it wishes, but the feature of this legislation was that it applied to anyone sentenced on/after 1 April 2020, even if they had been convicted earlier.
Some offenders might, but for the Coronavirus pandemic, have been sentenced prior to the 1 April and therefore have avoided the new rule, but because of the shutdown of the criminal courts were sentenced after the 1 April.
What did the appellants say?
The appellants arguments were expressed in these terms:
‘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 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’
The Court of Appeal rejected the arguments put forward by the appellants, deciding as follows:
- 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.
- It would defeat the statutory purpose of the early release provisions if their effect were ordinarily to be taken into account when passing sentence. The clear intention underpinning the 2020 Order (as is clear from the text of the Order itself, and is spelt out in the Explanatory Memorandum) is that, where it applies, the offender should, before being entitled to release, serve a further one sixth of the sentence than was previously the case. If the sentencing judge reduced the length of sentence to reflect the harsher effect of the early release provisions then that would directly undermine the legislative purpose.
- 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.
- Nothing in the authorities explicitly rules out the possibility that there may be exceptional cases where it is appropriate to take account of the impact of early release provisions.
- The Court must take account of mitigating features when setting the length of a fixed-term custodial sentence (s231(2) and (7) Sentencing Code; s153 Criminal Justice Act 2003). There is no closed exhaustive list of mitigating factors. Depending on the case, they may include the fact that custody will have a particularly harsh impact on the individual offender. Moreover, a court may depart from the approach required by an applicable definitive Sentencing Council guideline where it would be unjust to follow that approach.
- The court has recognised the exceptional impact that the Covid-19 pandemic may have on sentencing decisions, however ‘we do not, however, accept that 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 sentence (with the resulting impact of the 2020 Order). There is a principled difference between prison conditions and the effect of a change in the early release regime.’
- A change in the early release regime is different. It is a legislative change that is introduced by Parliament (or by a Secretary of State with Parliament’s authority).
- ‘Nor does 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, amount to a justification for departing from the [usual] principle.’
It is unlikely that there will be further attempts to challenge the effect of the 2020 Order, but as always we will be closely monitoring this and other cases to ensure the best outcomes for our clients.
How can we help?
We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly.
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email email@example.com. Let us help.
[Image credit: “The Royal Courts of Justice” by R/DV/RS is licensed under CC BY 2.0) Read More
Convicted Before A Magistrates’ Court – Can I Appeal?
Many people convicted before magistrates feel aggrieved at the outcome, and wish to consider an appeal.
A grievance may arise because they think that their case was not prepared correctly, or that the court reached the wrong result.
For many people, a conviction could be a major barrier to employment or travel overseas, even where the offence itself is relatively minor.
The court process is far from perfect. If you have a grievance, it is only right and proper that you consider your options.
So, what can I do about it?
The first thing to remember is that you must act quickly as you only have 21 days from the date of sentencing to appeal your conviction – you should not delay in contacting us.
If more than 21 days have passed, then get in touch as soon as possible as we can advise on ‘out of time appeals’.
When you contact us, we will also be able to consider whether other avenues of appeal, namely judicial review and appeal by way of case stated (both to the High Court) are more suitable.
I pleaded guilty, can I appeal?
You might be able to appeal against ‘conviction’ if you pleaded guilty, but only if your plea is ‘equivocal’. In this instance, there are two remedies that we can explore with you.
Do I need permission to appeal?
An appeal against conviction from the magistrates’ court to the crown court is what is termed ‘an appeal as of right’, which means that you do not need any permission to appeal.
In effect, you are entitled to ‘2 bites of the cherry’ although there are some other issues, such as sentence and costs (see below) that you should consider first.
Is sentence suspended pending an appeal?
Your sentence is not suspended pending appeal, although:
– We can apply for bail if you are in custody, and
– Apply for any driving disqualification to be suspended.
If you have been made subject to a community order, this will need to be complied with, although we will take steps to try and expedite the hearing.
What happens at the appeal hearing?
The crown court, presided over by a Judge and Lay Magistrates (not a jury), hears the case afresh.
We do however have a valuable opportunity to review what might have gone wrong at the first trial and take steps to remedy any failures.
We can also examine what other evidence ought to the gathered on your behalf, or what lines of attack we might usefully deploy against the prosecution case.
If I lose the appeal, what happens?
If that happens, you will be re-sentenced by the crown court, and be liable for prosecution costs. We will discuss the costs implications with you in detail before any decision to appeal is made.
It is important to note that the crown court is not restricted to the same sentence imposed by the magistrates’ court, so, you may receive a higher penalty.
This is one of the risks that you need to balance – and one of the reasons why we will at an early stage examine the other avenues of appeal with you (judicial review and case stated).
Can I get legal aid?
Some people are eligible for legal aid, and in some circumstances we can apply for legal aid on your behalf.
We will be happy to discuss fixed fee arrangements – the price of high-quality representation is almost certainly much less than you might imagine it to be. If you are successful in your appeal, some of your costs may be refunded.Read More
Many of our clients ask whether there is legal aid for extradition cases. The answer is yes, there is. It is actually now called a ‘representation order’, although most people still talk about legal aid. All extradition cases begin in Westminster Magistrates’ Court and you may be eligible at this stage. You can apply with any firm of your choice, so long as they have a criminal contract.
There is a means test for legal aid for extradition cases at the Magistrates’ Court. This means that your income, your partner’s income and family circumstances will be taken into consideration. You must provide proof of your income and outgoings. The application will be made by your solicitor of choice to the Legal Aid Agency (LAA) where an assessment will be made on your disposable income. You will not have to pay any fees for your extradition hearing if you are granted legal aid.
When application is refused and you are still unable to afford a lawyer, you can make a hardship application to the LAA for them to reconsider.
There is a merits test for legal aid for criminal cases. However, all extradition cases automatically pass that test.
Can I change my solicitor?
If you have been successful in obtaining legal aid for extradition with a firm of solicitors and wish to instruct another firm to represent you instead, you may face difficulties. If you want to transfer, you must make an application to the Court. You must explain the reasons why you want to transfer. Therefore, it is important that you only apply for representation with a firm you feel confident in from the start.
All appeals against extradition in the High Court qualify for legal aid. There is no means test in the High Court. This means that you will not have to provide any proof of your income and outgoings. If you instruct a firm to lodge your appeal on this basis, then you will not have to pay for the Court fees for lodging the appeal. Your solicitor will help you with the forms and all fees involved in the appeal.
Please contact us on 0207 388 1658, or email firstname.lastname@example.org if you wish to discuss your extradition matter with us further, or to find out whether your would be eligible for legal aid for extradition matters. We have a dedicated team of lawyers specialising in extradition who are here to help you.
If you want to know more about extradition proceedings, read our guide to the basics here.
John Howey, Senior SolicitorRead More