Case Law Updater – Crime, March – April 2023

Our updater team comprises Joseph Sinclair and Rachel Pain.

R v Hanson [2023] EWCA Crim 203

Sentencing – Dangerousness – Youths – Detention for Public Protection

The appellant was sentenced to detention for public protection concerning five robberies that were committed when he was 15. He appealed the sentence on the basis that inter alia the judge had not considered his age and that he may change and develop as he aged.

[22] It is clear from the case law that even when an offender has been found to pose a significant risk of serious harm to members of the public from future offences, it has always been necessary for the court to go on to consider separately whether only an indeterminate sentence would be adequate to protect the public.  In deciding that discrete issue in the case of a young offender, it has always been necessary for the court to bear in mind the likelihood of change which is inherent in youth. 

[31] Paragraph 17(vi) of Lang [[2006] 2 Cr. App. R. (S) 3] required the judge to bear in mind that the young appellant may change and develop more quickly than an adult would and to take into account his level of maturity.  In the circumstances of this case, those considerations positively pointed away from any need for what Lord Judge in Attorney General Reference No 55 of 2008 (R v C) referred to as “the last but one resort when dealing with a dangerous offender”.

R v Cowell [2023] EWCA Crim 162

Sentencing – Suspended Sentences

The appellant was sentenced to 12 months’ imprisonment for breach of a non-molestation order. In sentencing him, the judge had referenced the Imposition of community and custodial sentences guidelines, finding that “this matter is so serious that only an immediate custodial sentence can be justified”.

[21] We accept Ms O’Kane’s criticism of the judge that she only referred expressly to one of these six factors [under the heading “Can the sentence be suspended?”]: her conclusion that appropriate punishment could only be achieved by a sentence of immediate custody. In our view it is always appropriate for a sentencing judge to go through these six factors as part of the sentencing exercise. That is not, we stress, a mindless box-ticking exercise. On the contrary, it is a good discipline for a sentencing judge to have these factors in mind and to consider each expressly to see whether or not this is a case where, on balance, immediate custody can be avoided.

R v Allon [2023] EWCA Crim 204

Sexual Offences – Notification Requirement – Youth – Jurisdiction

The defendant was convicted of an offence of distributing indecent photographs of a child contrary to s.1(1)(b) of the Protection of Children Act 1978. He was 17 at the time of the offence, but 20 at the time of conviction. The judge held that as he was over 18 at the time of conviction, he was caught by the notification requirements. As a result the Crown Court issued a certificate under s.92 of the Sexual Offences Act 2003 that he was subject to the notification requirements under Part 2 of that Act.

The Court of Appeal held that issuing a certificate was not a decision or order of the sentencing judge, and is in itself incapable of being appealed (in these circumstances, a challenge by way of judicial review is likely to be the appropriate vehicle: [31]). However, the court had jurisdiction where a judge had erroneously ruled that the notification requirements should apply: [17-20].

On the merits of the judge’s decision:

[27] Accordingly where, as in paragraph 13 [of schedule 3 to the 2003 Act], the application of the notification requirements is dependent upon the offender having attained a particular age, it is his age when he committed the offence which is relevant.  Parliament has granted him the benefit of an exception from the normal consequences of his crime, based upon his comparative youth when he committed it; and he does not lose that benefit merely because he is not convicted until after he has attained the relevant age.

In these circumstances, the Court of Appeal held it could reconstitute itself as a Divisional Court (with the permission of counsel: [30 & 32], treat the application for leave to appeal as including an application for permission to apply for judicial review, and quash the issuance of a s.92 certificate: see [29-34].

R v Ali [2023] EWCA Crim 232

Sentencing – Prison Population – Suspended Sentences

[22] The judge in this case did not refer to this consideration, and he is obviously not to be criticised for that, given the chronology set out above. We have concluded that there were strong arguments for suspending the sentence in this exceptional case, for the reasons we have given. Any doubt we may have had on that issue is resolved by this additional factor which we do take into account in dealing with this appeal. This factor will principally apply to shorter sentences because a significant proportion of such sentences is likely to be served during the time when the prison population is very high. It will only apply to sentences passed during this time. 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 6 February 2023. Sentencing courts will now have an awareness of the impact of the current prison population levels from the material quoted in this judgment and can properly rely on that. It will be a matter for government to communicate to the courts when prison conditions have returned to a more normal state.

R v Ahmed & Ors. [2023] EWCA Crim 281

Sentencing – Adults Offending as Children

[32] “We therefore answer as follows the question posed at the start of this judgment:

i) Whatever may be the offender’s age at the time of conviction and sentence, the Children guideline is relevant and must be followed unless the court is satisfied that it would be contrary to the interests of justice to do so.

ii) The court must have regard to (though is not necessarily restricted by: see (v) below) the maximum sentence which was available in the case of the offender at or shortly after the time of his offending. Depending on the nature of the offending and the age of the offender, that maximum may be (a) the same as would have applied to an adult offender; (b) limited by statutory provisions setting a different maximum for an offender who had not attained a particular age; or (c) limited by statutory provisions restricting the availability of different types or lengths of custodial sentence according to the age of the offender.

iii) The court must take as its starting point the sentence which it considers was likely to have been imposed if the child offender had been sentenced shortly after the offence.

iv) If in all the circumstances of the case the child offender could not in law have been sentenced (at the time of his offending) to any form of custody, then no custodial sentence may be imposed.

v) Where some form of custody was available, the court is not necessarily bound by the maximum applicable to the child offender. The court should, however, only exceed that maximum where there is good reason to do so. In this regard, the mere fact that the offender has now attained adulthood is not in itself a good reason. We would add that we find it very difficult to think of circumstances in which a good reason could properly be found, and we respectfully doubt the decision in Forbes in this respect. However, the point was not specifically argued before us, and a decision about it must therefore await a case in which it is directly raised.

vi) The starting point taken in accordance with (iii) above will not necessarily be the end point. Subsequent events may enable the court to be sure that the culpability of the child offender was higher, or lower, than would likely have been apparent at the time of the offending. They may show that an offence was not, as it might have seemed at the time, an isolated lapse by a child, but rather a part of a continuing course of conduct. The passage of time may enable the court to be sure that the harm caused by the offending was greater than would likely have been apparent at that time. Because the court is sentencing an adult, it must have regard to the purposes of sentencing set out in section 57 of the Sentencing Code. In each case, the issue for the court to resolve will be whether there is good reason to impose on the adult a sentence more severe than he would have been likely to have received if he had been sentenced soon after the offence as a child.

 Myerscough v Rex [2023] EWCA Crim 279

Sentence – time spent on remand – extradition – s.243 Criminal Justice Act 2003

Appeal in relation to credit for time spent on remand whilst awaiting extradition.

The court held that under Section 243 of the 2003 Act, credit will only be given for time spent in custody while awaiting the extradition which led to the trial – not awaiting an extradition which never occurred.

Number of days spent under Section 243 must be specified in open court.

[22] s. 243(2) must in our view be read with s. 243(1). That defines “extradition prisoner” materially for present purposes as (a) someone tried for an offence “after having been extradited to the United Kingdom” and “without having first been restored or had an opportunity of leaving the United Kingdom” who (b) was for any period kept in custody while awaiting his extradition to the United Kingdom “as mentioned in paragraph (a)”. This last phrase seems to us to indicate that the custody referred to is custody while awaiting the extradition which led to the trial. Here, that means the 17 or so days spent in custody in Romania, not the 21 months spent in custody awaiting an extradition that never occurred from a different territory.

[27] where Parliament had made a clear policy choice that credit should be given for time spent on remand in some cases but not others it was not for the courts “to negate and then rewrite that clear policy distinction.

Rex v Khan [2023] EWCA Crim 297

Credit – Indication of Plea – Guilty Plea

This was an appeal of the decision to give Mr Khan 25% credit for his guilty plea. He had given an indication at the magistrates’ court, which the appellant argued entitled him to one-third.

[20] The documents show that the appellant did not indicate guilty pleas in the Magistrates’ Court but he did indicate that he would likely plead guilty in the Crown Court on a written basis of plea. This court has held that for the purposes of determining the appropriate reduction in sentence, an indication of a guilty plea must be an unequivocal indication. An indication of a likely plea is not enough: see R v Plaku [2021] EWCA Crim 568, [2021] 4 WLR 82, at [17]. The discount of 25 per cent was unimpeachable.

Wu v Chelmsford City Council [2023] EWCA Crim 338

Unlawful Eviction – Meaning of “Deprive” – Actus Reus

The appellant, a landlord, attended a premises and changed the locks. She was told by the council that she was obliged to house the tenants. The house had been left open, but the tenants did not have any keys until they were delivered a day later.

On appeal, the appellant argued that “deprivation” for the purposes of s.1(2) of the Protection from Eviction Act 1977 required the occupier to be put and/or kept out of physical occupation. The Court of Appeal agreed.

[43] In our judgment, that part of the actus reus of s.1(2) which requires that the resident occupier has been deprived of occupation of the premises does require actual physical deprivation of occupation, namely that the occupier has by the defendant’s conduct been put and/or kept out of physical occupation of the property.

…

[48] In our judgment the natural reading of s.1 is that the actus reus of the completed offence under sub-section (2) requires that the defendant’s conduct has in fact put or kept the residential occupier out of physical occupation.