As a result of the restrictions on movement imposed due to the current pandemic, the criminal justice system is operating little more than what might be colloquially referred to as a ‘Saturday service’ at present. Despite this, lower-level offences still work their way through the system, while cases involving more serious offences are adjourned pending the relaxation of the restrictions. This blog post concentrates on a topic that has thus far received little attention: sentencing for offences committed at a time of national crisis.

There have been numerous reports of a reduction in various types of crime as a result of the restrictions on movement (see for example this report in The Guardian). As is expected with a widescale change of circumstances, offending patterns and offending behaviour changes too and as such, there have been reports of an increase in domestic abuse allegations (see for example Sky News: Coronavirus: Suspected domestic abuse killings ‘more than double’ during lockdown), an increase in dishonesty offences relating to the pandemic (see for example Which?: Coronavirus scams – how to spot them and stop them) and a change in the nature of assaults on emergency workers (see for example CPS: CPS brings coronavirus criminals to justice).

Data released by the National Police Chiefs Council shows that crime as a whole has fallen by 28%. More particularly, in terms of crimes reported, personal robberies have fallen by 27%, rape offences have fallen by 37% and residential burglaries have fallen by 37%.

Does the approach to sentencing change during a national emergency?

Does the fact of a ‘national emergency’ alter the approach to sentencing? The first consideration is whether it should. It might be thought that exceptional times call for exceptional measures. However, we suggest that the system should be slow to change its approach. The Criminal Justice Act 2003 sets down a fairly simple regime by which the sentence is principally determined by reference to the seriousness of the offence: as a general rule, the more serious the offence the more severe the sentence. Offence seriousness (see CJA 2003 s.143) is assessed by reference to the culpability and harm the sentence finds present in the offence. This is supplemented by five purposes of sentencing specified in CJA 2003 s.142 to which the court must have regard:

  • the punishment of offenders;
  • the reduction of crime (including its reduction by deterrence);
  • the reform and rehabilitation of offenders;
  • the protection of the public; and
  • the making of reparation by offenders to persons affected by their offences.

Is there any reason in a national crisis to depart from these principles? It is suggested that there is not. The scheme is flexible enough to accommodate extraordinary events and to address particular aggravating features that arise as a result of a time of national crisis. This was demonstrated by the response of the courts to the ‘riots’ that took place in 2011.

The 2011 ‘riots’

The 2011 ‘riots’ occurred over a period of five or six days in early August 2011. There was widespread ‘looting’, rioting, criminal damage, violence and various public order offences. The incidents reportedly began following a demonstration at the death of Mark Duggan who was shot by police in Tottenham, north London on 4 August 2011. Some reports estimated that up to 14,000 people were involved in this criminal activity. It will be recalled that the criminal justice system responded robustly. Some courts sat for extended hours in order to deal with the increase in workload and lengthy sentences were handed out for what would otherwise have seemed to be minor transgressions. Most notably the decision in R. v Blackshaw and Others [2011] EWCA Crim 2312; [2012] 1 W.L.R. 1126 (David Perry Q.C. and Duncan Penny appearing for the Crown) concerning offences of burglary, handling stolen goods and encouraging or assisting offences contrary to section 46 of the Serious Crime Act 2007 provided swift and clear guidance on the approach to be taken when sentencing offenders whose offences were committed in the context of the riots.

The court – Lord Judge, CJ, Sir John Thomas (PQBD) and Leveson LJ – observed that there was an overwhelming obligation on sentencing courts to do what they could to ensure the protection of the public, whether in their homes, in their businesses or in the street and that the imposition of severe sentences, intended to provide both punishment and deterrence, had to follow. Further, the court stated that those who deliberately participated in disturbances of this magnitude, causing injury, damage and fear were committing aggravated crimes. The court stated that the law had always ‘leant heavily’ against those who used the threat that lay in the power of numbers and that in such circumstances the acts of any individual participator could not be approached in isolation.

The court made reference to the principles that appear in the CJA 2003 and concluded that the correct approach was to apply those principles to the extraordinary circumstances, rather than seeking to develop new principles, as a response to the exceptional offending. If the principles remain the same, why now is there talk of ‘tougher’ sentences in the context of this national crisis?

Tougher sentences

The application of the same principles need not result in the same outcomes. The fact that there is an exceptional event – whether that comes in the form of a global pandemic or widespread riots – requires different sentencing outcomes: but why? This approach has its roots in the principles underpinning the scheme and the assessment of the ‘seriousness’ of the offence. It is centered on the concept of desert, i.e. we ought to be treated as we deserve to be treated. The CJA 2003 requires that the more serious the offence, the more severe the penalty should be.

Applying those principles to the present situation, it is clear that many offences are more serious simply because they are committed during the Coronavirus pandemic. There may be many reasons for this. For instance, a theft of PPE is more serious because of (a) the shortage of equipment, (b) the fact that NHS workers need PPE and (c) the potential consequences for NHS workers who do not have the proper PPE. Another example might be spitting or coughing at police officers. This is already a serious offence which saw increased sentencing powers passed by parliament in 2018. In ‘ordinary’ times, spitting at a police officer is unpleasant and carries a risk of transmission of disease. At present, the risk of harm is far higher and the consequences for the victim potentially far more severe. A further example might be dishonesty offences whereby individuals seek to exploit the fear and uncertainty around the spread of Coronavirus, by selling items that falsely claim to cure, or protect from, Coronavirus, obtaining money via the imposition of false ‘lockdown fines’ or initiating Coronavirus-related phishing scams. Each of these three broad examples is more serious than a similar offence committed in ‘ordinary’ times:

  • the harm and culpability present in the theft of PPE is far greater that would ordinarily be the case for a person guilty of stealing face masks and gloves from a hospital, knowing of the potential consequences for the hospital staff;
  • the harm and culpability is far higher where a person spits or coughs at a police officer knowing (or perhaps even stating) that they could be passing the virus to the victim; and
  • the harm and culpability present in a dishonesty offence which preys upon fear and uncertainty surrounding the present situation is higher than in a more common example of such an offence. It may well be regarded as deliberate targeting of a vulnerable victim.

If, ceteris paribus, offences are more serious within a coronavirus context, then more severe sentences can be expected following an application of the ordinary sentencing principles.

Impact on sentencing guidelines

So, what does this mean for sentencing hearings and how might the courts assess the seriousness of such offences? The first point to note is that where an offence-specific guideline exists for an offence, that guideline still applies. The court in Blackshaw upheld the majority of the sentences imposed. Those sentences were outside of the offence ranges specified in the guidelines. It will be recalled that in order to impose a sentence outside of the offence range (that is, between the top of the highest category and the bottom of the lowest category), the court must conclude that it is in the interests of justice to depart from the guideline (see s.125 of the Coroners and Justice Act 2009).

It is clear that where the figures in the guideline do not, in the view of the court, equate with the seriousness of the offence to be sentenced, that will be a legitimate reason for departing from the guideline. In R. v Heathcote-Smith and Mellon [2011] EWCA Crim 2846; [2012] 2 Cr. App. R.(S.) 25 the court commented that a sentencing judge who was obliged to take account of definitive guidelines issued by the Sentencing Guidelines Council (as it then was) should depart from them only for a good reason. This which would necessarily be fact specific to the offence and offenders under consideration. A judge should not depart from the guidelines on the ground that he considered that the guidelines needed reconsideration. Providing the decision is made on the basis of the assessment of the individual offence before the court, departing from the guideline (in accordance with s.125 of the Coroners and Justice Act 2009) is a legitimate approach.

Departing from the guideline does not, however, mean that the guidelines cannot be useful in such cases. On the contrary, the approach and the factors set out in the guidelines are likely to be of considerable assistance. In constructing the guidelines, the Sentencing Council has adopted a structure that accords with the principles in the CJA 2003 and they are well adept to take into account unique circumstances such as the current crisis as part of the overall assessment of the seriousness of the offence.