COVID factors should not affect sentence: Appeal Court

Neither the pressure on the courts due to COVID-19, nor the more difficult prison conditions currently being experienced, are reasons to apply a different approach to sentencing and sentencing discounts for pleading guilty, the Criminal Appeal Court has stated.

Lord Justice Clerk Lady Dorrian, Lord Glennie and Lord Turnbull made the comments in also holding that a sheriff was unduly lenient in sentencing to six months' imprisonment, discounted to four for an early plea of guilty, Iain Lindsay, who deliberately coughed in the faces of two police officers while being booked in at a police station charge bar, and pleaded guilty to culpable and reckless conduct to the danger of their lives – the constables fearing they had been infected with coronavirus. The accused had an appalling record including many offences agains the police, and the sentence substituted was 15 months, discounted to 10.

The sheriff chose her sentence as the offence was unplanned and momentary with no other threats or aggression, the accused was showing no symptoms, and the objective risk at the time was small, though she acknowledged the subjective impact on the officers. Before the Appeal Court it was submitted for the accused that it was proper to take into account the impact of a prison sentence on an offender, and at present he was confined to his cell for 23 hours a day with no access to recreation, work, programmes or support. The sentence was within the range of appropriate disposals.

Lady Dorrian, delivering the opinion of the court, said the sheriff had given insufficient weight to the accused's record; and it was not a point in his favour that he was not showing symptoms. Had she taken proper account of the factors including the deliberate nature of the conduct and the general risk involved, she could not have selected a starting point of less than 15 months.

The discount applied was not a live issue, but it was appropriate to give some guidance. The fundamental basis for granting any discount was that it should be based on the objective value of an early plea and the personal inconvenience that it saved in the case in question. "We agree with the advocate depute that there is no basis for any specific backlog in a general or occasional sense to be treated as a separate identifiable justification for awarding a discount. Workload does fluctuate, and perceptions of workload are not universal. The effect of pleas of guilty on the workload of the courts in a conventional sense is already factored in to the levels of discount generally granted."

As regards the current prison regime, "The conditions which arise as a consequence of COVID-19 are unlikely to be permanent, and one can expect that in the short to medium term prisons will find better ways of adapting to the conditions dictated by the virus." Except where the matter was in fine balance, "we do not consider that [the fact of abnormal prison conditions] has a role to play, and we do not accept that, once the custody threshold has been crossed, it has any role to play in the selection of the eventual sentence".

She continued: "As we have noted above, there is already a generous discount scheme applicable to those who plead guilty. Adding another layer, which would presumably have to apply whether or not there had been a plea with utilitarian value, would merely add confusion. The current situation as a whole may be unprecedented, but that the regimes within penal establishments may from time to time have to be enforced with greater rigour than at others is not. As with the issue of backlog, it is something which may vary in intensity from time to time for a raft of reasons. What would be the threshold for taking these into account? It would be impossible to identify...

"To take account of the current emergency as a reason for discounting a custodial sentence would discriminate unfairly against prisoners who may have been given a short term sentence shortly before the lockdown, in favour of those upon whom such sentences are imposed now. Furthermore, short term prison sentences are subject to both automatic early release and discretionary early release. The latter in particular provides an administrative method by which the most serious consequences of imprisonment in the short term may be mitigated."

Click here to view the opinion of the court.