Immediate Custodial Sentences: Colin Buckle analyses the impact of the Court of Appeal Judgement on Rex v Ali.
On the afternoon of Friday 2nd March 2023, I had completed one-half of what was an all-day sentence dealing with 17 counts on an indictment. We recommenced at 2.15pm. Unusually, we began with a preface from the learned Judge, inviting any final submissions as to the impact of a Judgement of the Court of appeal. That judgment had been handed down that same afternoon, just prior to our completing our own sentence.
The case that the Judge was referring to is Rex v Ali  EWCA Crim 232.
The impact of the case will likely result in a fewer number of borderline custody cases breaking through the custody threshold and resulting in immediate imprisonment.
Defence advocates will, from this moment onwards, be drawing ‘Operation Safeguard’ to the attention of the Court. This will be in conjunction with other tried and tested areas of mitigation in trying to secure a non-immediate sentence of imprisonment.
It is too early at this stage to say whether this new guidance will have a significant impact upon the frequency of immediate custodial sentences being imposed. However, it must be the case that we are about to see, in appropriate cases, the drawing back from immediate custodial sentences where there is a realistic prospect of rehabilitation in the community with an attached punitive element.
The case of Ali 2023 has come about due to the Government accepting that the prison estate cannot cope with or operate at current capacity.
What is Operation Safeguard?
‘Operation Safeguard’ was announced in Parliament on the 30th November 2022 by Minister of State Damien Hinds.
In essence, Operation Safeguard was the recognition that the prison population had increased significantly, and the prison estates cannot cope.
The Minister confirmed that as part of the ‘operation’, a request had been made to the Chief Constables of the various police forces to free up custody cell spaces. The number given in Parliament was 400 cell places.
The Minister explained that there had been an acute and sudden rise in the prison population, tantamount to it being wholly unexpected. If that is really the case, how then can be it be that similar protocols to Operation Safeguard occurred previously in 2006, 2007 and again in 2008. What did the government do, in terms of long term strategy, to avoid history repeating itself.
At the time of the announcement of Operation Safeguard, the Minister announced developments in the prison estate with an anticipated 20,000 new places through development of older prisons and the building of new. The question arises again as to why these plans were not in place back in 2006 and 2007. To date 663 police stations, countless Crown Courts and Magistrates’ Courts and 10,000 prison places have been lost for various reasons.
One might understand the increase in the prison population if we had recently seen 10,000 new police officers on the beat and 10,000 new support staff in the criminal justice system investigating many more cases and bringing many more offenders before the Court. In fact the opposite is true, conviction rates are at an all-time low and there are 10,000 less police officers in employment.
The Prisons are Full – Why?
This question could be mooted long into the night but there do seem to be some irresistible answers to give as to why the prisons are overcrowded. The obvious answer would be ‘more people are being sent to prison’ but in fact, could it also be that ‘fewer numbers of people are being released’.
Prison numbers are defined by the amount of people who come in the door and the amount who then leave. If those coming through the door are staying for longer periods than would normally have been the case – the population goes up.
For that reason, as part of this document, I have also revisited the release provisions which have again been altered in the recent past and which, undoubtedly, is one of the reasons for the overcrowding of the prison population.
The Release Provisions
In 2019, the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2019 came into force for all sentences imposed on or after the 1st April 2020. This was irrespective of the date of the offence. The new regime did not apply to persons under the age of 18 at the time of sentence.
The ‘alteration’ related to section 244 and section 264 of the Criminal Justice Act 2003. The critical point to note is that the standard release at ‘one-half’ was replaced with ‘two- thirds’ where the sentence is 7 years or more for a qualifying violent or sexual offence.
This meant that for those persons convicted of a qualifying violent or sexual offence, the release date would be at the two-thirds stage of their sentence, if sentenced to 7 or more years imprisonment. This was another example of the Government adopting their ‘tough on crime’ position.
That show of strength continued by way of section 244ZA(1), (5) and (8) of the Criminal Justice Act 2003, in that the previous reference to serving two-thirds of a sentence of 7 years or more, where the offence was violent or sexual was then slashed down to 4 years rather than the 7 years. I have summarised the applicable release provisions at the conclusion of this document.
Rex v Ali  EWCA Crim 232
As I have said, the Judgement was given on Friday 3rd March 2023 by Lord Justice Edis. The facts of the case for these purposes are of no consequence. In essence, the defendant had been sentenced to a short period of imprisonment and the appeal focused on the issues of whether that was really necessary considering the fact that the defendant had been out of trouble for an extensive period and that the offence, at the time of sentence, was more than two years old.
The Court addressed the issues following on from Rex v Manning  EWCA Crim 592 and then went further in saying this (at para.22):
“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 the 6th of February 2023. Sentencing courts will now have an awareness of the impact of the current prison population levels…and it will be a matter for the Government to communicate to the courts when prison conditions have returned to a normal state.”
In essence, the Court of Appeal has been forced to acknowledge the fact that the prisons are over-crowded and that there should be serious consideration given to suspending shorter prison sentences rather than sending defendants into custody unless it is a last resort.
Advocates can also combine the judgement in Ali with other areas of sentencing principle, asking the Court to focus on whether an immediate custodial sentence is the only option. In Qureshi  EWCA Crim 831, the Court considered the issue of when prison is the only disposal and in the alternative, where a disposal in the community can be achieved.
The case also goes on to consider the often-quoted suggestion that where there is a ‘realistic prospect of rehabilitation’ a suspended sentence is the more attractive option. Qureshi  is certainly a useful tool to have in the advocates’ kit bag for borderline cases.
Finally, and for completeness, the Sentencing Council has of course published its own guideline in respect of the “Imposition of Community and Custodial Sentences” which also provides commentary and assistance.
There are many reasons why cases are not reached as per their original listing and why the prisons have become over-crowded. These include Covid and, to a much lesser extent, the recent industrial action by the Bar.
The Government’s own release provisions and the lowering of the qualification threshold has also had the impact of tying up cell spaces for longer than normal.
There was always going to be ‘fall-out’ of some type and currently, Rex v Ali 2023 represents the ‘fall-out’ that is likely to benefit advocates and defendants at sentence.
Immediate Custodial Sentences
Release on Licence of Certain Violent or Sexual Offenders (Table below)
Colin Buckle is a specialist criminal barrister who both prosecutes and defends in cases of the utmost severity.