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Academic, Professional, & General
Blackstone's Criminal Practice 2007
Updates
Part E
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Blackstone's Criminal Practice 2007

Part E

Updates to Part E

November 2006

E1 Sentencing: General Provisions

In R (A) v Governor of Huntercombe Young Offender Institution [2006] EWHC 2544 (Admin) (noted below at E9.10) Stanley Burnton J made this scathing observation on the absurdly complex state to which sentencing laws have now been reduced - complexity which in this case had caused the Court of Appeal itself to fall into error:

Over the last nine years, there has been a profusion of Acts of Parliament relating to penal sentencing. Much of it has had the objective of limiting or removing the discretion of the sentencing court to impose the sentence it considers appropriate. Since the affairs of man are of enormous, if not infinite, variety, such measures risk compelling a court to pass a sentence which it considers inappropriate to the individual offender for the particular crime he has committed. Moreover, the plethora of mandatory provisions cannot be kept in mind at all times by those advising or representing a defendant, or indeed by a sentencing judge. Indeed, even the Home Office seems in some instances to be unaware that there are conflicting provisions of its own creation: see CPS v South East Surrey Youth Court [2005] EWHC 2929 (Admin). Inevitably, mistakes and misunderstandings happen, and judges find themselves faced with a situation in which they consider injustice may be done.

Author: MH

January 2007

E1 Sentencing: General Provisions

Recent years have seen a huge increase in the complexity of sentencing law and a corresponding increase in the number of unlawful sentences imposed. The Court of Appeal has itself erred on at least one recent occasion (see R (A) v Governor of Huntercombe Young Offender Institution [2006] EWHC 2544 (Admin), which was noted in the update for November 2006).

No doubt the primary fault here lies with Parliament and with those who draft the outrageously complex laws in question, but until something is done to correct this, the courts and judges need help from the advocates who appear before them.

The Court of Appeal has accordingly emphasised in Cain and other appeals [2006] EWCA Crim 3233, the duty of prosecution and defence advocates to assist the court or judge in ascertaining what sentences may lawfully be imposed in the case in which they are involved. A judge will very often not see the papers very long before the hearing and will not have the time for preparation that the advocates should enjoy. It is unacceptable for advocates not to ascertain and be prepared to assist the judge with the legal restrictions on the sentence that he can impose on the defendant. It is the duty of prosecuting counsel to ensure that the judge does not, though inadvertence, impose a sentence which is outside his powers. The court also emphasised the duty of a prosecution advocate to draw the court's attention to any relevant sentencing guidelines or guideline decisions of the Court of Appeal (as to which duty see Blackstone's Criminal Practice 2007, E1.2).

The court concluded by warning that the only way of achieving an acceptable standard of practice may be to require prosecuting advocates to prepare a schedule or memorandum that identifies the matters relevant to sentence.

Author: MH

August 2007

E1.1 Purposes of Sentencing

In Bowker [2007] EWCA Crim 1608 the Court of Appeal recognised that the purposes identified in the Criminal Justice Act 2003, s. 142(1) are applicable to offenders aged over 18 at the time of conviction, even if they were under that age when committing the offence in question. On the other hand, allowance ought to be made (as required by Ghafoor [2003] 1 Cr App R (S) 84) for the offender's youth at the time of offending and his culpability must be assessed on that basis. Latham LJ said:

Subsection (2) of that Act expressly disapplies that provision in relation to offenders under the age of 18 at the time of conviction. Whilst therefore it is clearly right that a person who has committed an offence whilst under the age of 18 should be sentenced on the basis that his culpability is to be judged by reference to his age at the time of the offence, nonetheless, the necessary sentencing disposal has to take account of the matters set out in section 142(1) if he is convicted after he has reached the age of 18. When sentencing those under 18, the court will generally focus more on their requirements and their rehabilitation. Section 142 suggests that for those over the age of 18, however, more general public policy considerations, in particular deterrence, can play a greater part.
In this case, D was only two days short of his 18th birthday when he became involved in an affray and committed 'sickening' acts of violence. Only a small reduction in his sentence was called for. The court rejected an argument by counsel to the effect that the imposition of a punishment appropriate to an 18-year-old was 'a retroactive punishment' precluded by the ECHR, Article 7.1. Latham LJ said:
[The] provisions of Article 7.1 are clearly directed to the mischief of retroactive or retrospective changes in the law. In the present case, there was no change in the law. The penalties for violent disorder remained the same. All that changed was the penal regime to which the appellant would be exposed as a result of the normal operation of existing law to his age at the time of conviction. For those reasons, we do not consider that the court is constrained in any way by the provisions of Article 7 in situations such as the present.

Author: MH

May 2007

E1.2 Sentencing Guidelines

The Court of Appeal has emphasised that a judge's oath to administer justice without fear or favour, affection or ill will extends to imposing what he concludes to be the appropriate sentence, He must of course pay careful regard to sentencing guidelines, whether laid down by the Court of Appeal or by the Sentencing Guidelines Council; but these are only guidelines. In some cases there may be good reason to depart significantly from the guidelines, notably where the facts of the offence in question diminish its seriousness in comparison to the norm, and also where there is particularly powerful personal mitigation. In such circumstances, a judge should not hesitate to impose what he considers to be an appropriate sentence merely because he fears that this might cause the A-G to intervene. A departure from the guidelines, even if it is substantial, is not, of itself, enough to justify the A-G's intervention. The test for intervention is not leniency, but undue leniency. Leniency, where the facts justify it, is to be commended rather than challenged: A-G's Ref (No. 8 of 2007); Krivec [2007] EWCA Crim 922.

Author: MH

July 2007

E1.6 Reduction in Sentence for Guilty Plea

Following a review of its own guideline on reduction in sentence for a guilty plea, the Sentencing Guidelines Council has produced a revised guideline which has effect from 23 July 2007.

The main change relates to cases where the case against the offender is overwhelming. Previous guidance published in December 2004 guideline stated that in such cases sentences should be reduced by one-third in cases where offenders have indicated at the first reasonable opportunity that they will plead guilty. Whilst the presumption remains that a reduction should be made for a guilty plea at the earliest opportunity, the Council has concluded that a lower reduction of 20 per cent may be appropriate in certain circumstances. The Council has agreed with the recommendation of the Sentencing Advisory Panel that the general approach of the guideline is correct in setting out clearly the purpose of the reduction for a guilty plea, in settling for a reduction no greater than one third (with lower levels of reduction where a plea is entered other than at the first reasonable opportunity) and in continuing to provide for a special approach when fixing the minimum term for a life sentence imposed following conviction for murder.

The revised guideline provides guidance as to when the 'first reasonable opportunity' is likely to occur in relation to indictable only offences; emphasises that remorse and material assistance provided to prosecuting authorities are separate issues from those to which the guideline applies and makes clear that the approach to calculation of the reduction where an indeterminate sentence is imposed (other than that following conviction for murder) should be the same as that for determinate sentences.

Author: MH

September 2006

E1.7 Reduction in Sentence for Assistance by Offender

The Serious Organised Crime and Police Act 2005 (Appeals under Section 74) Order 2006 (SI 2006 No. 2135) makes provision corresponding to provision in the Criminal Appeal Act 1968, with modifications, for the purposes of appeals in England and Wales under the Serious Organised Crime and Police Act 2005, s. 74(8). Part 2 of the Order relates to appeals to the Court of Appeal in relation to England and Wales and Part 3 allows, and makes provision in relation to, appeals to the House of Lords from the Court of Appeal in relation to England and Wales. Article 4 makes provision for the powers of the Court of Appeal on appeal. If the Court of Appeal determine to allow the appeal and if they think fit, they can vary the sentence imposed by the Crown Court.

July 2007

E1.7 Reduction in Sentence for Assistance by Offender

The ambit of the Serious Organised Crime and Police Act 2005, ss. 73 and 74 were considered by the Court of Appeal in Z [2007] EWCA Crim 1473. The court in that case was required to decide whether the appellant's co-operation with the authorities after his conviction entitled him at common law to a greater reduction in sentence than had been made by the trial judge. Sentence had been passed prior to the commencement of the relevant SOCPA provisions, and the court observed:

31. These provisions create a new scheme which permits a court to give discounts for sentences to offenders who give information to the authorities or who offer to do so, but this agreement has to be in writing and must be made with a specified prosecutor. The provisions are noted in a comment on R v A by Dr David Thomas at [2006] Crim LR 1080. Dr Thomas poses the question of whether the new scheme has any effect on the conventional or "common law" practice and principles to which we have referred above. We asked counsel for their submissions on this point. Both counsel submitted that the new statutory provisions had no effect on the existing common law rules. Mr Burrows for the prosecution told us that there had been no attempt to use the new statutory procedure in relation to the appellant.

32. We do not need to decide this point for two reasons. First, it seems to us that the new statutory provisions cannot apply to a case, such as this, where both the offences and the sentence took place before the Act came into force on 1 April 2006. Secondly, as we read section 73(1) of the 2005 Act, the statutory regime will only apply following a plea of guilty by a defendant. In this case, the appellant was convicted in relation to the first Indictment, although he did plead guilty in relation to the other two. (We note in passing that section 74 only applies where a defendant has been sentenced in the Crown Court after he has entered into a written agreement to give assistance to the prosecutor. That section permits the prosecutor to refer the case back to the court by which sentence was passed in certain, specified, circumstances).

Author: MH

December 2006

E1.8 Increase in Sentences for Racial or Religious Aggravation

Kelly [2001] EWCA Crim 170, [2001] 1 Cr App R (S) 341 (see also B2.20) was applied in Bridger [2006] EWCA Crim 3169, in which the Court of Appeal emphasised the need for the sentencer to indicate, in the interests of transparency, what punishment would have been imposed apart from the racial or religious aggravation. This would be of benefit to the public and, indeed, to the Court of Appeal if the sentence passed becomes subject to challenge.

A custodial sentence is not inevitable even where such aggravation is clearly present, although in other cases the aggravation may tip the balance in favour of such a sentence.

Author: MH

November 2006

E1.11 General Mitigating Factors

In A-G's Ref (No. 73 of 2006), R v M [2006] All ER (D) 106 (Oct), the Court of Appeal recognised that a sentencing judge may on occasion, and in the right case, temper justice with mercy. In this case, an 81-year-old offender was spared a prison sentence in respect of a series of sexual offences against children. The offences involved touching their genitals over clothing. There was compelling mitigation: apart from his age, the offender was in poor health, had chosen to stop his offending some years before, and had entered a guilty plea at the first opportunity.

A community order had been imposed with the requirement of supervision and attendance at a sex offender programme, together with a sexual offences prevention order (prohibiting him from having unsupervised contact with a child under the age of 16).

In rejecting the Attorney-General's submission that this sentence was unduly lenient, the court observed that sentencing was an art rather than a science; that the trial judge was particularly well placed to assess the weight to be given to various competing considerations; and that leniency was not in itself a vice. The proposition that mercy should season justice was as soundly based in law as it was in literature.

Author: MH

March 2007

E2 Custodial Sentences: General Provisions

In Seed [2007] EWCA Crim 254, [2007] All ER (D) 161 (Feb), Lord Phillips CJ began his judgment with the following observations:

  1. Once again judges who have to sentence offenders are confronted with the fact that the prisons are full. When they impose sentences of imprisonment - and very often the nature of the offence will mean that there is no alternative to this course - the prison regime that the offender will experience will be likely to be more punitive because of the consequence of overcrowding and the opportunities for rehabilitative intervention in prison will be restricted. Those already serving sentences are subject to the same adverse consequences. The Strangeways Report of Lord Woolf spells out the consequences of prison overcrowding.
  2. The numbers of those in prison are a product of the numbers of custodial sentences imposed and the length of those sentences. Parliament has not given judges a free hand in respect of either of these. Statutory requirements have been laid down both in relation to the circumstances in which custodial sentences should be imposed and the length of those sentences. It is of course the duty of the judge to follow these requirements. Requirements of the Criminal Justice Act 2003 dealing with the sentencing for serious offences may well have the effect of increasing the size of the prison population. The requirements of Schedule 21 making provision for the determination of the minimum term in relation to mandatory life sentences may well, in due course, be seen to have this effect. Figures in relation to those serving indeterminate sentences for public protection suggest that these sentences may already be making a significant contribution to the rise in prison numbers.
  3. In contrast to the statutory provisions that deal with serious and dangerous offenders, there are other provisions that should tend to reduce prison numbers. Section 152(2) of the 2003 Act provides:

    'The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence.'

    This is an important provision. It requires the court, when looking at the particulars of the offence, to decide whether the 'custodial threshold' has been passed. If it has not, then no custodial sentence can be imposed. If it has, it does not follow that a custodial sentence must be imposed. The effect of a guilty plea or of personal mitigation may make it appropriate for the sentencer to impose a non-custodial sentence.
  4. Section 153 of the 2003 Act provides that, where a custodial sentence is imposed, it must be:

    'for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it.'

    This also is an important provision.
  5. In times of prison overcrowding it is particularly important that judges and magistrates pay close regard to the requirements of both these provisions. In particular, when considering the length of a custodial sentence, the court should properly bear in mind that the prison regime is likely to be more punitive as a result of prison overcrowding.
  6. Section 142 of the 2003 Act sets out the purposes of sentencing. The matters to which the court must have regard when sentencing an offender are:
    1. the punishment of offenders;
    2. the reduction of crime, including its reduction by deterrence;
    3. the reform and rehabilitation of offenders;
    4. the protection of the public; and
    5. the making of reparation by offenders to persons affected by their offences.
    Unless imprisonment is necessary for the protection of the public the court should always give consideration to the question of whether the aims of rehabilitation and thus the reduction of crime cannot better be achieved by a fine or community sentence rather than by imprisonment and whether punishment cannot adequately be achieved by such a sentence. We believe that there may have been a reluctance to impose fines because fines were often not enforced. Enforcement of fines is now rigorous and effective and, where the offender has the means, a heavy fine can often be an adequate and appropriate punishment. If so, the 2003 Act requires a fine to be imposed rather than a community sentence.
  7. Particular care should be exercised before imposing a custodial sentence on a first offender. Association with seasoned criminals may make re-offending more likely rather than deter it, particularly where the offender is young. A clean record can be important personal mitigation and may make a custodial sentence inappropriate, notwithstanding that the custodial threshold is crossed.

Author: MH

March 2007

E2.7 Crediting of Periods of Remand in Custody

In a judgment of great length and complexity, the Court of Appeal in Gordon [2007] EWCA Crim 165 has examined the operation of and interaction between the staggeringly convoluted sentencing regimes created by the CJA 1967, s.67, and the CJA 2003, s. 240, and the impact on the sentencing process of time spent by defendants on remand. In the past, the court has sometimes expressed exasperation or outrage as to the complexity of modern sentencing law, but on this occasion it appears to have exercised remarkable restraint in the face of grave legislative provocation. Latham LJ did however say this:

The judgment on the broad principles is heavily dependent on [counsel's] submissions, and effectively quotes substantial portions of the written submissions. It would be something of a comfort if their impressive work could guarantee that our analysis was free from error or oversight. In this area of legislation however, experience has shown that hidden traps abound, and we, not they, are responsible for any failures to recognise and avoid the traps.

The first part of the judgment (that on the 'broad principles') is divided by subheadings into a number of distinct parts, and in the interests of intelligibility these headings are reproduced here.

Time spent on remand

Whereas the 1967 Act continues to apply to sentences of imprisonment imposed in relation to offences committed before 4 April 2005, the regime for offences committed on or after 4 April 2005 is governed instead by s. 240 of the 2003 Act, under which reduction for time spent in custody on remand is no longer automatic. Instead the court may order that the days served on remand count as part of the sentence. It is essential that any such decision is announced, and the reasons for it explained, in open court. For offences which straddle 4 April 2005 (ie committed over a period extending on either side of that date), the 2003 Act again applies.

'Mixed' cases

'Mixed' cases create particular difficulties. Where consecutive sentences are imposed in respect of a series of offences committed both before and after 4 April 2005, the entire remand period must be credited in respect of the pre-April 2005 offence, so a direction under s. 240 will not in practice be required. Where, however, concurrent sentences are imposed the court must address s. 240 of the 2003 Act. The court might consider that to grant credit would, in effect, produce double credit, and if so may accordingly disallow it.

Court order to return to prison

An offender who is recalled to prison is 'liable to be detained in pursuance of his sentence'. Therefore time spent in custody in connection with a fresh offence while the defendant is serving a sentence of imprisonment following his recall after release on licence, does not form part of the 'relevant period' either for the purposes of s. 67 of the 1967 Act or under the 2003 Act. As Home Office Circular No 37 of 2005 explains:

. . .it is not appropriate for remand days to be counted towards any subsequent sentence imposed in respect of the second offence where a period in custody is being served further to recall from release on licence in respect of the first offence.

Consecutive sentences for released prisoners

Before the coming into force of the CJA 2003, the arrangements in respect of consecutive sentences for released prisoners were governed by s. 84(1) of the 2000 Act. This provides:

A court sentencing a person to a term of imprisonment shall not order or direct that the term shall commence on the expiry of any other sentence of imprisonment from which he has been released under part II of the Criminal Justice Act 1991 (early release of prisoners).

In other words, a sentence cannot be imposed to begin on the expiry of another sentence from which the prisoner has been released, if that 'other sentence' was imposed in respect of an offence committed before 4 April 2005. However s. 84 does not prevent a court from ordering a period of return under s. 116 or imposing a consecutive sentence for the new offence.

By the Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Saving Provisions) Order 2005, sch. 2, para 30, the repeal of s. 84 does not apply to a sentence of imprisonment imposed for an offence committed before 4 April 2005. The restrictions in s. 84 are effectively reproduced by the CJA 2003, s. 265, which came into force on 4 April 2005 and provides:

A court sentencing a person to a term of imprisonment may not order or direct that the term is to commence on the expiry of any other sentence of imprisonment from which he has been released early under this Chapter.

Section 265 is however subject to sch. 2, para. 30 (above). It applies only when the 'other sentence of imprisonment' was imposed for an offence committed on or after 4 April 2005.

Where the 2003 Act's regime applies, a court dealing with an offence committed after release on licence for a previous offence, but while the full term of the sentence is incomplete, cannot make an order for return, nor an order that the sentence should run consecutively to the full term or any period of recall order made by the Secretary of State to serve a further part of that sentence. To avoid double counting, when considering any direction in relation to time served for days spent on remand, the court should consider whether it would be 'just' to reduce from the number of days included in the order those days or periods when the offender was serving part of the earlier sentence. (See also Howell [2006] EWCA Crim 860, [2007] All ER (D) 79 (Jan)).

Discretionary life sentences

Section 82A of the 2000 provides the regime for the determination of tariffs when the court passes a life sentence in circumstances where the sentence is not fixed by law. It applies to discretionary life sentences, orders for custody for life, detention for life, imprisonment for public protection under s. 225 or detention for public protection under s. 226 of the 2003 Act. Section 82A(2) provides that (unless the court specifically orders otherwise) the court must order that the provisions of the Crime (Sentences) Act 1997, s. 28(5) to (8) (early release provisions) apply to an offender who has served a specified part of his sentence, and in calculating that part of the sentence s. 82A requires the court to take account of the effect of any direction which it would have given under the CJA 2003, s. 240 if it had sentenced him to a term of imprisonment. This means that when fixing the appropriate determinate sentence, the court should apply the regime under s. 240 to time spent on remand.

Errors and omissions

Under s. 155 of the 2000 Act (see Blackstone's Criminal Practice, D18.57), the Crown Court may vary or rescind any sentence imposed or other order made, provided the variation is made within a period of 28 days beginning with the day on which the sentence or other order was imposed or made. Section 155 allows a small degree of latitude, and the 28-day limit would not prohibit what was in effect a later curing of a mere procedural irregularity in the way in which the order of the court was recorded, or a later procedural step to complete an inchoate order, but without affecting what has already been announced. Subject to such considerations, the limitation point applies. See Menocal [1980] AC 598.

A judge may however specifically adjourn one part of a sentence. In the context of s. 240, the number of days during which the defendant was remanded in custody does not, strictly speaking, form part of the sentence. In theory, it would be open to the court to adjourn the entire sentencing process until satisfied that the number of days properly to be regarded as time served was accurately calculated. That would normally be inappropriate. However, once the court has decided that credit should be given, it should say so, and it would then be entitled to adjourn for appropriate information to be provided about the relevant number of days. If, for whatever reason, that calculation has not been made, or the court is uncertain about the 'time served', but considers that, in principle, the time spent in custody should be treated as time served, the court may properly direct that the period shall be deducted after the appropriate calculation has been made, and adjourn that part of the process. Thereafter, the calculation should be made promptly and the final decision should, save in exceptional circumstances, be concluded within 28 days. However, even if delayed beyond that period, it would be permissible for the Crown Court to deal with what was no more than the final implementation of its order. In the end, the order should be listed and pronounced in open court.

Any misstatement of the number of days' credit to which a defendant is entitled will almost invariably be the product of administrative error (see Annesley [1976] 1 All ER 589). The court could see no good reason why a judge could not use language when sentencing to make it clear that the defendant should receive credit for the full period of time spent in custody on remand or any particular part of that period, that on the basis of the information currently before him the relevant period was 'X' days, but that if that period proves to be based on an administrative error, the court would, on being informed, order an amendment of the record for the correct period to be recorded. The number of days to be credited may then be regarded as a temporary rather than a final order, and therefore open to correction if and when any error emerges. If of course there were any continuing issue about the number of days, the case would have to be re-listed for a judicial decision in open court. Again, the corrected order should be listed and pronounced in open court. Arrangements like these would not fall foul of the 28-day rule.

Author: MH

January 2007

E2.8 Concurrent and Consecutive Sentences

In Williams [2006] EWCA Crim 3194, the Court of Appeal condemned the practice of imposing consecutive specified terms when imposing imprisonment for public protection. A single specified term must be imposed in such cases, having regard to all relevant factors.

Author: MH

February 2007

E2.8 Concurrent and Consecutive Custodial Sentences

In Howell [2006] EWCA Crim 860 the court had to decide whether it was possible for a sentence of imprisonment to be ordered to run consecutively to an earlier sentence (imposed prior to the commencement of the relevant CJA 2003 sentencing provisions) where on conviction for a subsequent offence the defendant had been returned or recalled to prison for breach of his licence terms under the Powers of Criminal Courts (Sentencing) Act 2000, s. 116.

It was held that the imposition of consecutive sentences was unlawful in these circumstances. Paragraph 23 of sch. 2 to the Criminal Justice Act 2003 made it clear that releases of prisoners whose offences were committed before 4 April 2005 were still to be regarded as having been under part 2 of the Criminal Justice Act 1991 and not under the provisions of the 2003 Act. The correct procedure was for an order to be made under s. 116 of the Powers of Criminal Courts (Sentencing) Act 2000 to require the defendant to serve whatever the judge regarded as the proper amount of the balance of his existing sentence, and then the 12-month sentence to run consecutively.

Now this may appear at first sight to be little different from the original sentence, but as Collins J explained (at [22] to [24]):

Because of the need to recognise that, in reality, what should have been imposed was an order under section 116 that he serve whatever the learned judge regarded as the proper amount of the balance of the existing sentence and then the consecutive twelve months, it is necessary, because of the recall by the Secretary of State, to appreciate that there should be an allowance given for the fact that the recall has meant that the whole rather than only half is to be served. The way in which that can be done is to double the 90 days, that is the period between the recall and the imposition of the sentence. Thus, the 289 days should have 180 days subtracted, which leaves 109. That takes account also of the 20 days in relation to the period on remand.

Since there was an error of four days in calculating the credit to be given for the period on remand and since we are sorting the matter out and producing the result which the learned judge intended to produce, we propose to direct that the period be 105 days to take that into account. The result of all this will be that the appellant is due to be released about a month earlier than would otherwise have been the case.

As we have, we think, indicated, these were difficult provisions and there is a real trap for the unwary in having to deal with a situation such as this because of the transitional provisions, which do not make the position as clear as perhaps ought to be the case.

His lordship's criticisms are polite and understated, but this case provides yet another illustration of the absurdly over-complicated mess into which a large part of sentencing law has now degenerated. Sentencing law is now infested with such traps and it is not only the unwary sentencers who are falling into them.

Author: MH

April 2007

E2.8 Concurrent and Consecutive Custodial Sentences

As to the imposition of consecutive sentences in cases where one of those sentences is an extended one, see C [2007] EWCA Crim 680 and E5.9 below.

Author: MH

November 2006

E2.9 Relevance to Sentence of Early Release Provisions

In Ahmet [2006] EWCA Crim 2693 the Court of Appeal held that where an offender falls to be sentenced for offences committed both before and after 4 April 2005 and must therefore be sentenced by reference to two different regimes, the sentencing judge must have regard to the different early release provisions applicable in each case. The offender would be eligible for early release after serving two-thirds of his allotted sentence under the old regime, but after serving just half of that sentence under the new one.

It would generally be preferable to pass sentence on the later offences by reference to the new regime, whilst imposing no separate penalty for the earlier offences, albeit that might not be possible if the later offences were less serious than the earlier ones.

Author: MH

November 2006

E4.1 Murder: Life Imprisonment

The phrase 'murder for gain' in the Criminal Justice Act 2003, sch. 21, para. 5(2)(c) is directed to the purpose or motive for the murder, or at least of or for the activity that led to the victim's death. It is not restricted to those who made a living out of killing, but also applies to domestic murders committed in order to solve debt problems: Re Bingham (application under para 3 of Sch 22 to the Criminal Justice Act 2003) [2006] EWHC 2591(QB), per Andrew Smith J.

Author: MH

January 2007

E4.1 Murder: Life Imprisonment

A burglar who kills in order to escape does so in the course of a burglary and any such murder is properly to be characterised as a murder for gain within the meaning of the Criminal Justice Act 2003, sch. 21, para. 5. A lack of intention to kill could constitute a mitigating factor, however. See Bouhaddaou [2006] EWCA Crim 3190.

Author: MH

February 2007

E4.1 Murder: Life Imprisonment: Whole Life Tariff

Further guidance on the circumstances in which a whole life tariff may be appropriate was provided in McGrady [2007] EWCA Crim 192, in which M's application for leave to appeal against a whole life tariff imposed on the basis of the Criminal Justice Act 2003, sch. 21 was refused by the full court. The case involved the sexually motivated abduction, assault and strangulation of a 15-year-old girl who was then dismembered. M had previous convictions for, inter alia, rape, indecent assault and false imprisonment; and although he professed remorse he had not cooperated by explaining how or why the girl had died. The Court agreed with the trial judge's observation that 'just punishment required a sentence which would ensure that he never had the opportunity to prey on young women again'.

Author: MH

May 2007

E4.1 Murder: Life Imprisonment

The Criminal Justice Act 2003, sch. 21, does not purport to provide an exhaustive list of aggravating features, but rather features which the judge could and should take into account when deciding the minimum term. A murder may involve other aggravating features which can and should be taken into account when setting the minimum term to be served: Smitheman [2007] EWCA Crim 1006.

Author: MH

February 2007

E4.3 Murder: Detention at Her Majesty's Pleasure

The impact of the Criminal Justice Act 2003, sch. 21, on the sentencing of juvenile murderers, was examined by the Court of Appeal in A-G's Ref (No. 127 of 2006) R v H [2007] EWCA Crim 53. This was described by the court as a 'profoundly disturbing' case in which the offender, aged 15 at the time of the reference, was of low intelligence and emotionally damaged. He savagely murdered an 11-year-old child and had carefully planned the means by which his victim (who sufferd from cystic fibrosis) was lured to his home for sexual purposes. He then disposed of the body by wheeling it away in a dustbin.

Sir Igor Judge P noted that, under sch. 21, para. 7, the starting point for the tariff in cases involving juvenile defendants must always be 12 years, but added:

When the court is dealing with an offender aged under 18 years the provisions of paragraph 7 do not preclude the sentencer from reflecting on all the express features of the crime of murder identified in paragraph 4 and 5 of the schedule, and when they are found to be present, from treating them as features which aggravate the offence. The determination represents the end of the sentencing process which begins at the starting point . . .

No mathematical table can be produced which calculates the culpability of a young offender with any specific age, and no list, however carefully drawn up, can provide an accurate reflection of the way in which a young offender may or may not have learned from or been damaged by the experiences to which his young life has been exposed. The sentencer must make a balanced judgment of these matters . . .

The trial judge had determined that the aggravating and mitigating features in this case cancelled each other out, leaving the tariff at 12 years; but the Court of Appeal disagreed. Judge P explained:

The offender's culpability, and the consequent seriousness of the offence, are undoubtedly reduced by his age and mental illness, but in our judgment there are some striking features of the case which cannot be treated as wholly consistent with the offender's extreme youth. These include the deliberate selection of the victim for the purpose of exposing him to bullying and some form of sexual abuse, the elements of planning, which survived the intervention of school staff on the day of the killing itself, the sustained violence with more than one weapon and the murderous nature of the attack, and finally the calm efforts at concealment are all significant in themselves, but even for an offender of this age, with this offender's disadvantages, taken together they represent a formidable level of culpability and seriousness.

A sentence of 15 years, reduced from 18 on account of a guilty plea, was substituted.

Author: MH

June 2007

E4.3 Murder: Detention at Her Majesty's Pleasure

In A-G's Refs (Nos. 143 and 144 of 2006), Brown [2007] EWCA Crim 1245 the Court of Appeal provides guidance as to the problems of sentencing that may arise where two or more defendants are convicted of a jointly committed murder, but some were slightly above and some slightly below the age of 18 at the time.

The first offender in this case, who was aged around 17 and 5 months at the time of the murder, was sentenced to detention during Her Majesty's pleasure, with a minimum term of 17 years, the judge having taken a starting point (as required by law) of 12 years. The second offender, who was aged 18 years and 7 months at the time of the murder, was sentenced to custody for life with a minimum term of 21 years, the judge having taken a starting point of 30 years.

The court held that the disparity in the length of the minimum terms imposed could not be justified, despite the different starting points. The small disparity in the offenders' ages could not properly be reflected by more than one year's difference. The minimum term specified in respect of the younger of the offenders was accordingly increased to 20 years.

Author: MH

July 2007

E5.1 Overview of Provisions

In S (RM) [2007] EWCA Crim 1622, the Court of Appeal has resolved a problem concerning ongoing offences committed over a period of time spanning 4 April 2005 (i.e. the date on which the 'dangerous offender' provisions of the Criminal Justice Act 2003 came into force) or offences committed at some unknown time within a period spanning that date.

The general rule is that an increase in the penalty for an offence cannot apply to things done before the new penalty comes into effect, and the court had no doubt that an order of imprisonment for public protection represents a more serious sentence than a determinate sentence (see Reynolds [2007] EWCA Crim 538).

The CJA 2003, s. 234, provides that "where an offence is found to have been committed over a period two or more days, or at some time during a period of two or more days, it shall be taken for the purposes of s. 229 to have been committed on the last of those days".

This may seem at first glance to provide an answer, but s. 229 is concerned only with the assessment of dangerousness, where it falls to the court to assess "whether there is significant risk to members of the public of serious harm occasioned by the commission . . . of further [specified] offences." As Sir Igor Judge P points out in S (RM) at [5], s. 234 does not refer, and is not linked, to ss. 225 to 228, which are the provisions that really matter for this purpose. This appears to be a simple drafting error, but the general rule is that provisions of this kind must be strictly construed, and the Court of Appeal held that this rule was binding on them. Sir Igor Judge P said (at [11] and [12]):

11. . . . The end result, in our judgment, is that in cases where the count in the indictment spans the commencement date, the court should not impose any of the penalties created in sections 224 to 229 of the 2003 Act, unless satisfied that at least one relevant offence occurred after 4th April 2005. Once it is so satisfied, then the mere fact that the count was framed so that it spanned that date does not preclude such a sentence if it would otherwise be appropriate or mandated. We should perhaps add that, even if it is not open to the court to impose any of the dangerous offender penalties, because it is unsure whether the offence was committed before or after 4th April, if a qualifying offence or offences is committed after that date, then offences committed before the date may have some bearing on the assessment of dangerousness and, of course, on the determination of the minimum term. These offences do not cease to be relevant because the dangerous offender sentencing provisions do not apply directly to them.

12. We have two further comments: some care needs to be taken with the drafting of the appropriate counts in an indictment. Where it can realistically and sensibly be done, the indictments should be drafted to reflect the significance of 4th April 2005. Where it is difficult to produce an indictment in that form, then the judge, considering all the evidence, should make whatever findings are appropriate in the light of the evidence and give reasons for his conclusions, in particular, if in such a case the offence is found, on analysis of the evidence, to have taken place after 4th April.

Author: MH

November 2006

E5.5 Life Sentence or Imprisonment for Public Protection

Lang [2005] EWCA Crim 2864 and the provisions of the Criminal Justice Act 2003, s. 255 were considered in Beazley [2006] All ER (D) 175 (Oct). The Court of Appeal held that s. 255, where applicable, overrides the normal sentencing guidelines. If a person aged 18 or more is convicted of a serious offence, the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences, the offence carries a potential life sentence and the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life, the court must impose a sentence of imprisonment for life, even if this sentence would not otherwise have been indicated by the appropriate sentencing guidelines.

Author: MH

January 2007

E5.5 Imprisonment of Public Protection

In Williams [2006] EWCA Crim 3194, the Court of Appeal condemned the practice of imposing consecutive specified terms when imposing imprisonment for public protection. A single specified term must be imposed in such cases, having regard to all relevant factors.

It is wrong in principle for a judge, when considering whether to impose a sentence of imprisonment for public protection, to hear evidence of further allegations against the defendant that have not previously been pursued or proved by the prosecution. Nothing in the Criminal Justice Act 2003 undermines the basic principle that a defendant may be sentenced only for an offence proved against him (by admission or verdict) or which he has admitted and asked the court to take into consideration when passing sentence. A defendant might otherwise be deprived of his right to trial by jury: Farrar [2006] EWCA Crim 3261.

Author: MH

July 2007

E5.5 Imprisonment for Public Protection

The ruling in Farrar [2006] EWCA Crim 3261 (previously noted in the January update) was considered and explained by the Court of Appeal in Considine [2007] EWCA Crim 1166.

The question that arose in Considine was whether the assessment of "dangerousness" for the purposes of the Criminal Justice Act 2003, ss. 225 to 229 could legitimately include information as to other offending that the defendant had neither admitted nor been convicted of. The Court of Appeal gave an affirmative answer to that question.

Their lordships "entertained reservations" as to whether the full ambit of the principle in Canavan [1998] 1 All ER 42 (which was concerned with the process of establishing guilt) applies to the assessment of dangerousness for the purposes of s. 229. Under that provision a court or judge is entitled or in some cases required to take into account "any information about the offender which is before it." The court interpreted 'information' in this context as a broader concept than "evidence" in the strict legal sense. Accordingly, said Sir Igor Judge P (at [27]):

. . . relevant information bearing on the assessment of dangerousness may take the form of material adverse to the offender which is not substantiated or proved by criminal convictions.

Farrar was not authority for the proposition that the court must ignore information about criminal behaviour by the offender unless it has resulted in appropriate convictions:

What Farrar, consistently with Canavan, prohibits, is the introduction of a hybrid arrangement into the criminal justice system, in effect the possibility of conviction, or effective conviction, of a serious criminal offence after trial by judge alone in the course of a sentencing decision. The court was concerned that s. 229 should not be construed so as to allow the defendant to be deprived of his right to trial by jury or, in some way or other, be fixed with the consequences of guilt of a criminal offence without due process. A Newton hearing is not an acceptable form of trial for a criminal offence. It is after all a precondition to the Newton hearing that guilt of the offence is admitted by the defendant. It is therefore inappropriate to embark on a Newton hearing to decide whether or not the defendant has committed a discrete, but similar offence to those already before the court, solely for the purpose of making the assessment of dangerousness . . .

In our judgment what Farrar clearly did not decide is that, absent a conviction, the court making the section 229 decision is precluded from considering evidence of previous misconduct which would amount to a criminal offence. Arguments advanced on the basis that it did so decide are ill-founded.

In Considine, the trial judge was held to have been 'fully justified' in taking into account evidence of the defendant's long-term pattern of violent behaviour towards his former partner which had been put before the jury as evidence of his bad character under the Criminal Justice Act 2003, s. 101. The judge was not merely entitled, but required, to reflect on his own assessment of the defendant as he observed him throughout the trial.

Author: MH

1 September 2006

E5.9 Imprisonment for Public Protection: Assessment of Dangerousness

In Majid Ali Manir [2006] All ER (D) 132 (August) a sentence for public protection with a minimum period of 18 months was upheld on a defendant who, having taken drink, committed a serious sexual assault (which, had it not been interrupted, might have become rape) on a young woman to whom he and another had been speaking. The defendant was on licence for a driving offence. He had a previous conviction for robbery in which he had used a screwdriver as a weapon. While the defendant did not suffer from a recognised psychiatric illness, a pre-sentence report noted that he had a high degree of culpability and pre-meditation. He posed a high risk of re-offending and committing serious harm. The defendant submitted that, in the light of his early guilty plea, the fact that he had no previous history of sexual offending, and the fact that the victim had not in fact suffered serious harm, a determinate sentence of three years' imprisonment would have been appropriate.

Sexual assault is a specified offence under the CJA 2003, s. 224 and sch. 15, part 2, para. 104. There was evidence before the trial judge to indicate that there was a high risk that the defendant would commit further serious offences and that he might cause serious physical or psychological harm to his victim. The judge was entitled to make an assessment of dangerousness on the material before him and the Court of Appeal would not interfere with his finding.

The Court followed Lang et al [2006] 2 All ER 410, [2005] EWCA Crim 2864, which decides that the seriousness of an offence (under s. 225(2)(b)) relates both to the offence and to the dangerousness or culpability of the offender. It is clear from this case (and indeed from Lang at paras. [7] and 17]) that the relevant risk is one of serious re-offending and is not restricted to a risk of re-offending in the same way. It would seem that the element of violence involved both in the instant case and the prior robbery is the most significant indicator of dangerousness (taken with the defendant's culpability and pre-meditation).

Author: LL

December 2006

E5.9 Assessment of Dangerousness

Lang [2005] EWCA Crim 2684 and O'Brien [2006] EWCA Crim 1741 were examined in O'Halloran [2006] EWCA Crim 3148. The court held that a sentence of imprisonment for public protection (IPP) was not available under the Criminal Justice Act 2003, s. 225, in relation to any offence that is not a specified serious offence under sch. 15. It followed that a sentence of IPP imposed in respect of a charge of unlawful wounding under the Offences Against the Person Act 1861, s. 20, was unlawful. In practice, this made no real difference to the appellant's sentence, because a concurrent sentence of IPP imposed for robbery was upheld, and the court held that the trial judge had been right to take the s. 20 offence into account when setting the overall term.

Treacy J suggested that the principles set out in O'Brien at [58] et seq (see also the August 2006 update) can be distilled to the following three propositions:

  1. whilst it is not unlawful to impose consecutive indeterminate sentences, or an indeterminate sentence consecutive to another period of imprisonment, such a practice is undesirable. Common sense suggests that life imprisonment or IPP should start immediately it is imposed;
  2. where a judge intends to order that a period before which the defendant becomes eligible for parole should be served consecutively to an existing sentence, or should follow the period of return to prison under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000, then in order to ensure that the sentence imposed includes the balance of the existing sentence, or the period under section 116, he should increase the notional determinate term to reflect that balance or that period (see Hayward [2000] 2 Cr App R(S) 418;
  3. where a judge imposes concurrent and indeterminate sentences for two or more offences with concurrent minimum terms, and absent those indeterminate sentences he would have passed consecutive determinate sentences, he may reflect in the notional determinate term the totality of the offending by either choosing the same notional determinate term for all the offences or setting an increased notional determinate term for the most serious offence.

Treacy J continued:

We agree with and endorse the approach of the Court in O'Brien. . . .

In the circumstances, where the judge has before him for sentence a specified but not a serious offence of some gravity, at the same time as a serious offence which would attract a sentence of detention or imprisonment for public protection, he should:

(i) impose a sentence of IPP for the serious offence; and (ii) impose a concurrent extended sentence for the specified non-serious offence (see Lang paragraph 20). However, in fixing the notional determinate term for the IPP, the judge is entitled to take account of the circumstances of the specified non-serious offence. To hold otherwise would give unwarranted bonus to the offender and would short-change the victims and the public.

Author: MH

April 2007

E5.9 Assessment of Dangerousness: Consecutive Sentences

There is it seems no end to the difficulties inflicted on the courts by the complexities of the Criminal Justice Act 2003 in respect of dangerous offenders. Lang [2005] EWCA Crim 2684 and O'Brien [2006] EWCA Crim 1741, which were only recently examined in this context in O'Halloran [2006] EWCA Crim 3148 and in Brown [2006] EWCA Crim 1996, have been reconsidered yet again in C [2007] EWCA Crim 680. In C consideration was also given to the preceding regime as introduced by the Crime and Disorder Act 1998, s. 58 and restated in the Powers of Criminal Courts (Sentencing) Act 2000, s. 86.

The judgment in C cannot easily be summarised, but the court did offer (at [19]) this general guidance as to the practice to be adopted in dealing with consecutive and concurrent sentences on dangerous offenders:

  1. There is nothing unlawful about the imposition of a concurrent or consecutive sentence within either regimes relating to extended sentences, and indeed, as explained by Hooper LJ in O'Brien, where sentences of life imprisonment or imprisonment for public protection are imposed under chapter 5. This court will not interfere where extended or indeterminate sentences were justified, unless the practical result is manifestly excessive, or for some reason gives rise to real problems of administration.
  2. Nonetheless, judges should try to avoid consecutive sentences if that is at all possible and adjust the custodial term or minimum period within concurrent sentences to reflect the overall criminality if that is possible within other sentencing constraints.
  3. If consecutive sentences are considered appropriate . . . or necessary, if one or more of those sentences are determinate sentences, the determinate sentences should be imposed first, and the extended sentence or sentences expressed to be consecutive.
  4. In shaping the overall sentence, judges should remember that there is no obligation for the sentences to be expressed in historical date order. There is nothing wrong with stating that the sentence for the first offence in point of time should be served consecutively to a sentence or sentences imposed for any later offence or offences.

Author: MH

November 2006

E5.11 Detention for Life or Detention for Public Protection: Assessment of Dangerousness

The guidance given in Lang [2005] EWCA Crim 2864 was considered at length by the Court of Appeal in Johnson [2006] EWCA Crim 2486. Noting that Rose LJ's interpretation of the Criminal Justice Act 2003 in Lang does not purport to be definitive and ought not to be construed as if it were part of the statute itself, the court in Johnson set out to "address some of the areas of potential misunderstanding arising from Lang, in order to explain and amplify its guidance." Sir Igor Judge P nevertheless emphasises that, "nothing in this judgment is intended to undermine the guidance provided by Lang".

In paras [3] to [11] the court then makes a number of points of general application:

A sentence [imposed under the CJA 2003, ss 224-229] is concerned with future risk and public protection. Although punitive in its effect . . . it does not represent punishment for past offending.

It is a prerequisite to the sentence that the offender has been convicted of a "specified offence", one of 153 categories of violent or sexual offences listed in Parts 1 or 2 of Schedule 15 of the 2003 Act. Some specified offences are, and some are not serious offences for the purposes of section 224. Where, in the judgment of the court, there is a significant risk that the offender will commit further specified (but not necessarily serious) offences, and that the consequence of any such offence would be serious harm ("death or serious personal injury, whether physical or psychological") to members of the public, . . . he is to be regarded as a dangerous offender. . . . [The court is then] required to impose either a sentence of life imprisonment or imprisonment for public protection. The effect of sections 225(1) and (3) is that the court is left with no alternative.

It is not a prerequisite to a finding of dangerousness that the offender should be an individual with previous convictions. A man of good character may properly qualify for this sentence.

Just as the absence of previous convictions does not preclude a finding of dangerousness, the existence of previous convictions for specified offences does not compel such a finding. There is a presumption that it does so, which may be rebutted. The sentencer is entitled to conclude that, notwithstanding the statutory assumption, the offender with previous convictions, even for specified offences, does not necessarily satisfy the requirements of dangerousness.

If a finding of dangerousness can be made against an offender without previous specified convictions, it also follows that previous offences, not in fact specified for the purposes of section 229, are not disqualified from consideration. Thus . . . a pattern of minor previous offences of gradually escalating seriousness may be significant. . . .

Where the facts of the instant offence, or indeed any specified offences for the purposes of section 229(3) are examined, it may emerge that no harm actually occurred. That may be advantageous to the offender, and some of the cases examined in Lang exemplify the point. Another such example is Isa [[2005] EWCA Crim 3330]. On the other hand the absence of harm may be entirely fortuitous. . . . It does not automatically follow from the absence of actual harm caused by the offender to date, that the risk that he will cause serious harm in the future is negligible.

Nothing in the decision in Shaffi [2006] EWCA Crim 418, which was relied on before us, suggests the contrary. . . . Shaffi is not authority for the proposition that as a matter of law offences which did not result in harm to the victim should be treated as irrelevant. Indeed if that is what Shaffi decided, it would, in effect, have re-written the statute.

We considered arguments based on the inadequacy, suggestibility, or vulnerability of the offender, and how these and similar characteristics may bear on dangerousness. Such characteristics may serve to mitigate the offender's culpability. In the final analysis however they may also serve to produce or reinforce the conclusion that the offender is dangerous. . . . As experience shows, aberrant moments may be productive of catastrophe. The sentencer is right to be alert to such risks of aberrant moments in the future, and their consequences.

In Lang, Rose LJ suggested that the prosecution should be in a position to describe the facts of previous specified offences. This is plainly desirable . . . but not always practicable. There is no reason why the prosecution's failure to comply with this good practice, even when it can and should, should either make an adjournment obligatory, or indeed preclude the imposition of the sentence, when appropriate. . . . failure to comply with best practice on this point should be discouraged, but it does not normally preclude the imposition of the sentence.

It is not obligatory for the sentencer to spell out all the details of the earlier specified offences. To the extent that a judge is minded to rely upon a disputed fact in reaching a finding of dangerousness, he should not rely on that fact unless the dispute can fairly be resolved adversely to the defendant. In the end, the requirement is that the sentencing remarks should explain the reasoning which has led the sentencer to the conclusion.

Judge P then adds, 'at the risk of stating the obvious':

This court will not normally interfere with the conclusions reached by a sentencer who has accurately identified the relevant principles, and applied his mind to the relevant facts. We cannot too strongly emphasise that the question to be addressed in this court is not whether it is possible to discover some words used by the sentencer which may be inconsistent with the precise language used in Lang, or indeed some failure on his part to deploy identical language to that used in Lang, but whether the imposition of the sentence was manifestly excessive or wrong in principle. Notwithstanding the "labyrinthine" provisions of ss 224-229, and the guidance offered by Lang, these essential principles are not affected. They apply with equal force to References by HM Attorney General. In particular,

  1. In cases to which s 229(3) applies, where the sentencer has applied the statutory assumption, to succeed the appellant should demonstrate that it was unreasonable not to disapply it. Equally, where the Attorney General has referred such a case because the sentencer has decided to disapply the assumption, the Reference will not succeed unless it is shown that the decision was one which the sentencer could not properly have reached.
  2. This court is normally not assisted by reference to previous individual cases where there appears to be some similarity with the instant case. We hesitate to remind advocates that individual sentencing decisions are fact specific, and that it is rare for reports of sentencing cases to provide guidance about principle, or indeed to treat all the details of the information before the court which are no more than summarised.

Author: MH

April 2007

E6.3 Minimum Custodial Sentences for Firearms Offences

The Violent Crime Reduction Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 858) brings into force, on 6 April 2007, s. 30 of the Act which amends the Firearms Act 1968, s. 51A so as to substantially expand the range of firearms offences to which it applies.

Author: MH

May 2007

E6.3 Minimum Custodial Sentences for Firearms Offences

The Firearms (Sentencing) (Transitory Provisions) Order 2007 (SI 2007 No. 1324) modifies the Firearms Act 1968, s. 51A pending the repeal of the sentence of detention in a young offender institution for offenders aged 18 to 20 at the time of conviction. The modifications apply the five-year minimum term for a qualifying offence to offenders aged 21 or over sentenced to imprisonment and to 18 to 20 year olds sentenced to detention in a young offender institution.

Author: MH

November 2006

E9.10 Detention and Training Orders

The complex provisions of the Powers of Criminal Courts (Sentencing) Act 2000, ss. 101 and 102 were examined by Stanley Burnton J in R (A) v Governor of Huntercombe Young Offender Institution [2006] EWHC 2544 (Admin).

The Court of Appeal had previously created a problem in this case by varying the claimant's original DTO from one of thee years to one of 18 months, 'less 43 days spent on remand.' The last part of this order (which would, if followed, have resulted in his immediate release) was in fact unlawful, because s. 101(1) permits only orders of 4, 6, 8, 10, 12, 18 or 24 months; and although s. 101(8) (see E9.12) requires the period of any remand in custody to be taken into account in determining the term of the order, that period cannot be taken into account in determining the effect of the order.

When the Court of Appeal's error was discovered (which was when the claimant's parents arrived to collect him from detention), the court at once faxed a recommendation (but not an order) to the governor that he be released "under all powers available to the Prison Service". The Prison Service eventually decided that they had no power to do so, and that the Secretary of State had no power to order release under s. 102 at any time other than exactly one month or two months before the usual release point, in accordance with s. 102(4)(b).

Stanley Burnton J upheld this strict interpretation of s. 102(4)(b), and rejected arguments that the inconvenience caused to the claimant's parents amounted to 'exceptional circumstances' such as might justify early release on compassionate grounds under s. 102(3). As to the mistake by the Court of Appeal, whether such a mistake amounts to an exceptional circumstance will depend on the precise facts. In his lordship's view, such a mistake will not ordinarily amount to an exceptional circumstance, because of the increasing risk of such errors under today's bewilderingly complex sentencing rules. But he allowed the claimant's application for judicial review on the basis of other exceptional circumstances: notably because, but for a delay in the hearing of his original appeal, the Secretary of State would have been able to exercise his power to order early release under s. 102(4)(b), and because the Prison Service had intimated that they would act on any written recommendation from the Court of Appeal, only to reject it when it was made.

Author: MH

March 2007

E10.1 Commencement

The Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Saving Provisions) (Amendment) Order 2007 (SI 2007 No. 391) amends the principal Order (SI 2005 No. 950) so as to postpone commencement of ss. 177, 179 and 180 of and schs. 8 and 9 to the Act to April 2009. The postponement has effect insofar as the provisions apply to an offender aged 16 or 17. A similar postponement is applied to related amending provisions in sch. 32 of the 2003 Act.

Author: MH

November 2006

E14.6 Limited Effect of Conviction on the Grant of Absolute or Conditional Discharge

The relationship between the Powers of Criminal Courts (Sentencing) Act 2000, s. 14, and the Rehabilitation of Offenders Act 1974, s. 1(4), was considered by the Court of Appeal in Patel (application under s 58 of the Criminal Justice Act 2003) [2006] EWCA Crim 2689. The defendant applied for a job in the police. She completed an application form in which she was asked 'Have you ever been convicted of any offence, including motoring (but not parking) offences?' She answered, 'No'.

It was then discovered that she had in fact been convicted of theft nine years before and she was then prosecuted for an offence of deception, contrary to the Theft Act 1968, s. 16. The Court of Appeal upheld a judge's ruling that she had no case to answer. A person who had been conditionally discharged was not to be regarded as 'convicted' by reason of s. 14 of the 2000 Act. The Rehabilitation of Offenders Act 1974, s. 1(4) might seem at first to indicate the contrary, but it did not qualify or detract from s. 14 and existed only to enable offenders to take advantage of certain other provisions concerning spent convictions. The court noted that, whilst the police might well be interested in an applicant's criminal activity, including cautions and absolute or conditional discharges, there was nothing to prevent employers such as the police force, who were exempt from the 1974 Act, to frame questions in a wider way, by asking whether applicants had ever been 'found guilty', 'committed a criminal offence' or 'given an absolute or conditional discharge'.

Author: MH

November 2006

E18.1 Power to make Compensation Orders

The effect of delays in the making of compensation orders following the dismissal of confiscation proceedings under the Criminal Justice Act 1988 (i.e. under the old law) was examined in Hussain [2006] EWCA Crim 2405. The Court of Appeal noted that the relevant legislation imposes no fixed time-limits on the making of such orders. The court also noted that in Soneji [2005] UKHL 49 the House of Lords had refused to hold that a confiscation would necessarily be invalidated by failure to adhere to the six-month time-limit specified in respect of such orders. Lord Brown had said in that case (at [76]- [77]) that such time-limits were imposed not for the benefit of the defendant, but to ensure that not too long a time passed before the offender was stripped of his ill-gotten gains.

The court in Hussain, "took a similar view in relation to compensation orders":

They should be made as soon as possible, for the benefit of the victim. And in so far as the 1988 Act contemplates the order being made at the time of sentencing, that is not to raise any expectation in the mind of the offender that if it is not so made, then he can expect to keep his ill gotten gains. . .

That is not to say that such an order could be made at any time, however long after any sentence has been imposed or order made. We do not have to decide what time limit, if any, there may be to the making of a compensation order, still less what time limit there may be arising out of [Proceeds of Crime Act 2002], which does not apply to this case.

As to postponement of confiscation orders under the new regime (and the effect of such postponement on the making of compensation orders) see Blackstone's Criminal Practice 2007, E21.12 et seq.

Author: MH

February 2007

E20.4 Other Statutory Powers to Make Forfeiture Orders

The Violent Crime Reduction Act 2006 (Commencement No. 1) Order 2007 (SI 2007 No. 74) brings into force, on 12 February 2007, inter alia s. 54 of and sch. 4 to the Act, which make provision for the forfeiture and detention of land vehicles, ships and aircraft where a person is convicted of a trafficking offence under the Sexual Offences Act 2003, ss. 57 to 59.

Author: MH

24 August 2006

E21.15 Confiscation Order: Reconsideration

McKinsley v CPS [2006] EWHC Civ 1092;(2006) The Times, 22 August 2006, though decided under the Drug Trafficking Act 1994, s. 17 will apply also to the Proceeds of Crime Act 2002, s. 23. In an application for a certificate of inadequacy, the court is concerned only with the current state of the defendant's assets. It is not concerned with whether an error had been made as to the amount of the confiscation order. A defendant who considers that such an error was made has a statutory right of appeal. If the defendant is out of time the Court of Appeal (Criminal Division) will consider the application to extend time and the leave application on their merits. If there has been an appeal, the defendant may apply to the Criminal Cases Review Commission to refer the matter to the Court. The Administrative Court has no jurisdiction in certificate of inadequacy proceedings to go behind the basis of the confiscation order even if there was a manifest error or there is fresh material to be considered, and an attempt to get the Court to do so was an abuse of the process of the court. The same preclusive rule will apply under the 2002 Act in respect of applications to the Crown Court (Gokal v. Serious Fraud Office, [2001]] EWCA Civ 368 followed).

Author: LL

December 2006

E21.10 Determination of the Recoverable Amount

Scragg [2006] EWCA Crim 2916 provides guidance as to the calculation of the benefit to an offender where he has unlawfully acquired and then sold on the assets in question (which in this case were second hand cars). The Court of Appeal stressed that when arriving at a determination of benefit under the Proceeds of Crime Act 2002, s. 76, a court must not penalise the offender twice in respect of the same property or benefit, but should instead have regard to s. 80.

Judge Lorraine-Smith, giving the judgment of the court, said:

In our judgment what the judge should have done . . . was to apply section 80 to the facts of the present case. He should first have looked at the value of the cars when the appellant obtained them and then gone on to see whether there were any proceeds of sale in his hands that exceeded the value of the vehicles when he obtained them. On this basis . . . where a vehicle was obtained by the appellant worth £10,000 and sold for £8,000 the benefit would be £10,000. On the other hand if the vehicle was sold not for £8,000 but for £12,000 then the benefit would be £12,000. This approach seems to us not only to follow the approach required by the section but also to be in keeping with the principle behind the confiscation legislation namely to relieve criminals of their ill-gotten gains. It is true that the legislation sometimes operates in a draconian manner, but not so as to render a defendant liable to confiscation twice over for the same criminal conduct. It is not in our view realistic to treat the purchase and sale of the same vehicle as separate criminal enterprises; each falls within the ambit of the offence to which the appellant pleaded guilty namely fraudulent trading by carrying on the business of his company with intent to defraud creditors of the company.

Author: MH

June 2007

E21.10 Determination of the Recoverable Amount

May [2005] 1 WLR 2902 was applied in Green [2007] EWCA Crim 1248, in the context of a case brought under the Drugs Trafficking Act 1994; but the Court of Appeal certified a point of law of general public importance for possible consideration by the House of Lords, namely, whether, where any payment or other reward in connection with drug trafficking was received jointly by two or more persons acting as principals to a drug trafficking offence as defined in s. 1(3) of the 1994 Act, the value of each person's proceeds of drug trafficking within the meaning of s. 4(1)(b) of that Act includes the whole of the value of such payment or reward.

Author: MH

September 2006

E21.15 Reconsideration

Gokal v Serious Fraud Office [2001] EWCA Civ 368 was followed in Re McKinsley [2006] EWHC Civ 1092. This case was decided under the Drug Trafficking Act 1994, s. 17, but will apply also to the Proceeds of Crime Act 2002, s. 23. The court held that, on an application for a certificate of inadequacy, the court is concerned only with the current state of the defendant's assets. It is not concerned with whether an error had been made as to the amount of the confiscation order. A defendant who considers that such an error was made has a statutory right of appeal. If the defendant is out of time, the Court of Appeal (Criminal Division) will consider the application to extend time and the leave application on their merits. If there has been an appeal the defendant may apply to the Criminal Cases Review Commission to refer the matter to the Court. The Administrative Court has no jurisdiction in certificate of inadequacy proceedings to go behind the basis of the confiscation order even if there was a manifest error, or there is fresh material to be considered, and an attempt to do so was an abuse of the process of the court. The same preclusive rule will apply under the 2002 Act in respect of applications to the Crown Court.

Author: LL

August 2007

E22.1 Power to Recommend for Deportation

Failure to give written notice in accordance with the Immigration Act 1971, s. 6(2) does not necessarily render a recommendation for deportation invalid: Abdi [2007] EWCA Crim 1913. Having considered Nazari [1980 1 WLR 1366 and Soneji [2005] UKHL 49, Toulson LJ said:

29. The language of s 6(2) might suggest that its purpose is to avoid the risk of a person being recommended by a court for deportation who is not eligible to be deported because he is a British Citizen. But the appellant is not a British citizen. It is difficult to see why Parliament should have intended that a recommendation for deportation of a non-British citizen should be automatically invalidated by a failure to serve a notice which would on the facts have been irrelevant to the offender.

30. The purpose of s 6(2) may, however, be the wider purpose suggested in Nazari of putting the defendant on notice of the possibility of the making of a recommendation for deportation, so as to give him time to prepare to address the possibility on the merits. Even on that basis, in this case the appellant and his counsel were aware of the risk of such a recommendation and Mr Banks was able to make his submissions to the recorder on it. He also recognised that it is a particularly unappealing point in terms of any substantial merit in circumstances where the appellant's case was conducted on the basis that the appropriate notice had been served and the judge was led to believe that it had been served.

31. If it were to happen that a court made a recommendation for deportation against a person who was a British citizen, and therefore ineligible to be deported, there would be a number of other safeguards within the statutory scheme. First, the recommendation is just that - a recommendation and not an order. It would be open to the offender or his representatives to draw the position to the attention of the Secretary of State. Secondly, there could be an appeal against the recommendation to this court. Thirdly, if a deportation order were made, there could be an appeal to the Asylum and Immigration Tribunal. Fourthly, as a matter of practicality, the process for carrying out a deportation requires Home Office officials to obtain personal details regarding the deportee's citizenship in order to prepare the necessary travel documentation.

32. Recommendations for deportation are not always opposed by defendants. Sometimes a defendant will recognise that a deportation recommendation is inevitable, or may even welcome it, and may wish the sentencing process including the recommendation for deportation to be completed as quickly as possible. According to Mr Banks' argument, if in such a case the defendant had not received the prescribed notice, the court would have no power to make an unopposed recommendation for deportation, but would be compelled to adjourn the matter to everyone's cost and inconvenience.

33. Bearing these considerations in mind, we do not believe that the court should impute to Parliament an intention that non-compliance with s 6(2) should necessarily render a recommendation for deportation invalid. Unless that were the proper construction of the Act, the ground of appeal based on lack of notice must in this case fail.

Author: MH

September 2007

E22.1 Power to Recommend for Deportation

In Chirimimanga [2007] EWCA Crim 1684, the appellants, who were overstayers or failed asylum seekers, pleaded guilty (inter alia) to offences concerning the use of falsified passports (genuine Nigerian or Zimbabwean passports falsified with 'indefinite leave to remain' stamps) in order to obtain employment at a nursing home. One also pleaded guilty to possessing an identity document that related to another, contrary to the Identity Cards Act 2006, s. 25(5). Having imposed sentences of imprisonment, the trial judge recommended that all three be deported on the basis that their offending made it undesirable for them to be allowed to remain.

On appeal, it was argued that the deportation orders were unjustified, having regard to the previous good character of the appellants, the modest level of criminality involved and the fact that they had not entered the country illegally. Furthermore, the judge had failed to give detailed reasons for making his recommendation.

Having considered a wide rang of authorities, including Benabbas [2005] EWCA Crim 2113, Wang [2005] EWCA 293, and Carmona [2006] EWCA Crim 508, the Court of Appeal upheld the deportation orders. The appellants were not merely overstayers but had engaged in forgery and deception. The public interest in preventing the fraudulent use of passports to gain entry or support residence was of considerable importance and deserved protection.

It would have been better if the judge had spelled out in somewhat more detail why, having regard to the appellants' offences, their continued presence in the UK was to its detriment. But failure to do this is not necessarily fatal to a deportation order (see also Bavistock (1993) 14 Cr App R(S) 471; Asinugo [2007] EWCA Crim 114).

Author: MH

November 2006

E23.7 Sexual Offences Prevention Orders

In Richards [2006] EWCA Crim 2519 the court held that in appropriate cases it was open to a sentencing judge to impose a sexual offences prevention order under the Sexual Offences Act 2003 even when an extended sentence, as provided by the Criminal Justice Act 2003, s. 227, was not required. Having examined the relevant schemes set up by the two statutes (which had been enacted on the same day), Sir Igor Judge P concluded (at [27]):

In our judgment, these schemes were intended to be and are distinct. Therefore it is not a pre-condition to the making of a sexual offences prevention order that the judge should be satisfied that the offender would also qualify for an extended sentence (or for that matter, a sentence of life imprisonment or imprisonment for public protection), or that he should regard himself as deprived of necessary jurisdiction if they do not. That presupposes that the risk of re-offending must either be sufficient for the purposes of the dangerousness provisions in the Criminal Justice Act, or, if it is not, that it should be ignored. In short, although there may well be cases in which the potential overlap between the two sentencing regimes will require close attention, the ambit of the court's broad discretion to make a sexual offences prevention order is prescribed by the provisions which created it, without reference to sections 224-229 of the Criminal Justice Act.

Author: MH

February 2007

E23.7 Sexual Offences Prevention Orders

The Sexual Offences Act 2003 (Amendment of Schedules 3 and 5) Order 2007 (SI 2007 No. 296) amends those schedules of the Act. Article 2 adds three offences to sch. 3, namely offences under ss. 48 to 50 of the Act (all of which relate to child prostitution or child pornography). Schedule 5 to the Act lists the offences which, in addition to those listed in sch. 3, may lead to a person being made subject to a sexual offences prevention order under s. 104 of the Act. Article 3 adds eight offences for England and Wales and also removes the three offences being added to sch. 3. The offences added are as follows:

  • outraging public decency
  • an offence under the Theft Act 1968, s. 1 (theft)
  • an offence under the Theft Act 1968, s. 9(1)(a) (burglary with intent to steal, inflict grievous bodily harm or do unlawful damage)
  • an offence under the Child Abduction Act 1984, s. 1 (offence of abduction of child by parent, etc) or s. 2 (offence of abduction of child by other persons)
  • an offence under the Protection from Harassment Act 1997, s. 2 (offence of harassment)
  • an offence under the Postal Services Act 2000, s. 85(3) or (4) (prohibition on sending certain articles by post)
  • an offence under the Communications Act 2003, s. 127(1) (improper use of public electronic communications network).

Author: MH

June 2007

E23.7 Sexual Offences Prevention Orders

Sexual Prevention Orders under the Sexual Offences Act 2003 are invalid if made after proceedings had already been instituted under the Crime and Disorder Act 1998, s. 2. In such cases, the original provision remains applicable by virtue of the Interpretation Act 1978, s. 16: Bradshaw [2007] All ER (D) 90 (May).

Author: MH

November 2006

E23.8 Restraining Orders under the Protection from Harassment Act 1997

There is no right of appeal to the Crown Court against a refusal to vary or discharge a restraining order made in a magistrates' court following conviction of an offence of harassment. Such a refusal is not itself a 'sentence' within the meaning of the Magistrates' Courts Act 1980, s. 108. The appropriate remedy to seek in such a case would be by way of judicial review or case stated: R (Lee) v Crown Court at Leeds [2006] EWHC 2550 (Admin).

Author: MH

December 2006

E23.8 Restraining Orders under the Protection from Harassment Act 1997

The Sentencing Guidelines Council Guideline on Breach of a Protective Order is a definitive guideline which affects all breaches of a restraining order made under the Protection from Harassment Act 1997, s. 5 or a non-molestation order under the Family Law Act 1996, s. 42 when sentenced on or after 18 December 2006.

Author: MH

May 2007

E23.10 Financial Reporting Orders

The Serious Organised Crime and Police Act 2005 (Amendment of Section 76(3)) Order 2007 (SI 2007 No. 1392) amends s. 76 of the 2005 Act so as to add more than 20 offences to the list of offences in respect of which a financial reporting order may be made. The added offences include conspiracy to defraud, false accounting, money laundering offences, drug trafficking offences, offences related to terrorist funding, tax evasion offences and offences of corruption.

Author: MH

August 2006

E25.2 Listed Offences

In Forbes v Secretary of State for the Home Department [2006] EWCA Civ 962, the civil division of the Court of Appeal rejected the appellant's contention that the Sexual Offences Act 2003, s. 81 and sch. 3 were incompatible with the ECHR, Article 8, insofar as they required an offender to submit to notification requirements even in cases involving offences under the Customs and Excise Management Act 1979, s. 170, in which no proof was required to show that the offender either knew or believed he was importing indecent material involving children.

Giving the judgment of the court, Sir Igor Judge P cited with approval the decision of the High Court of Justice in Northern Ireland in In the matter of an application by Kevin Gallagher for Judicial Review [2003] NIQB 26, where Kerr J rejected a submission that the automatic imposition of the notification requirements of the Sexual Offences Act 1997 infringed the applicant's rights under Article 8. Kerr J said in that case:

It is inevitable that a scheme which applies to sex offenders generally will bear more heavily on some individuals than others. But to be viable the scheme must contain general provisions that will be universally applied to all who come within its purview. The proportionality of the reporting requirements must be examined principally in relation to its general effect. The particular impact that it has on individuals must be of secondary importance... The automatic nature of the notification requirements is in my judgment a necessary and reasonable element of the scheme. Its purpose is to ensure that the police are aware of the whereabouts of all serious sex offenders. This knowledge is of obvious assistance in the detection of offenders and the prevention of crime.

Author: MH

February 2007

E25.2 Listed Offences

The Sexual Offences Act 2003 (Amendment of Schedules 3 and 5) Order 2007 (SI 2007 No. 296) amends inter alia sch. 3 to the Act. Article 2 adds three offences to sch. 3, namely offences under ss. 48 to 50 of the Act (all of which relate to child prostitution or child pornography).

Author: MH

February 2007

E25.3 Notification Period

The Violent Crime Reduction Act 2006 (Commencement No. 1) Order 2007 (SI 2007 No. 74) brings into force, on 12 February 2007, inter alia s. 57 of the Act, which amends the Sexual Offences Act 2003, s. 82(1). The effect of the amendment is that persons sentenced to imprisonment for public protection under the Criminal Justice Act 2003, s. 225 are added to those for whom the notification period is indefinite.

Author: MH

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