This post has been contributed by Mr Robert Jago, Module Convenor for Civil and criminal procedure.
When the criminal courts are sentencing an offender they are often asked to consider the defendant’s personal circumstances to ensure that a sentence is proportionate to both the offence and the offender. Allowances for the latter have always been controversial and although s166(1) Criminal Justice Act 2003 indicates the court has a wide discretion to reduce a sentence to take into account ‘any such matters as, in the opinion of the court, are relevant in mitigation of sentence’, the Sentencing Council offers no specific guidance on personal mitigation in this context. Instead it has been left to the courts to consider the issue. The Court of Appeal has considered age and ill health in two recent decisions.
In R v Walker (Terence)  EWCA Crim 867 the defendant argued that his sentence of four years imprisonment for possession of a Class B drug with intent to supply was manifestly excessive given his age (70) and health difficulties. In R v Khan (Rehman)  EWCA Crim 1292 the defendant argued that his sentence of 12 months imprisonment for insurance fraud was manifestly excessive given he suffered from a heart condition, high blood pressure, high cholesterol and borderline diabetes.
In both cases the appeals were rejected. In Walker the Court observed that the defendant had been fit enough to drive a long distance to commit the offence in spite of his age and ill health. In Khan the Court observed that in the absence of any contrary evidence, any health difficulties could be appropriately managed within the prison estate. In the latter case the Court did note that should a prison fail to appropriately treat a prisoner then an appeal could be submitted on the basis of Article 3 of the European Convention on Human Rights 1950 where the failure, in exceptional cases, amounted to inhuman or degrading treatment. There was no evidence of any such failings in this case.
The courts have demonstrated a tough approach here but one, which is consistent with the view, that personal mitigation should not routinely operate as a ‘get out of jail free card’. The more serious the offence the less likely the mitigation will have any effect in spite of the sentencing process being generally committed to the principle of equal impact. If age and ill health were to be routinely considered then race, gender and socio-economic factors may need to be considered as well and as Professor Easton has concluded such inclusion could be problematic:
‘Taking account of impact means we are sailing in dangerous waters. This does not mean it is impossible to pass through them safely, but we do need clear warnings and clear markers to do so. It is doubtful, however, that we could provide sufficiently clear mitigation markers to sentencers to guarantee safe passage here. Although a move away from mercy might reduce arbitrariness, there is a danger that focusing on deprivation and other disadvantages will bring arbitrariness back into sentencing by the back door, as sentencers struggle to compensate for the vicissitudes of life.’
 Easton, S. (2008) ‘Dangerous Waters: Taking Account of Impact in Sentencing’ Criminal Law Review 2, 105-120.