Crime Case Law Updater – September 2023

Our case law updater team comprises Joseph Sinclair and Rachel Pain.

R v Borsodi [2023] EWCA Crim 899

Intentional Strangulation – Suspended Sentence – Cook

It was submitted on behalf of the appellant that the sentencing judge erred in his interpretation of Cook (Alfie) [2023] EWCA Crim 452.

In the absence of sentencing guidelines, the sentencing judge was right to refer to Cook:

“[16] In view of the inherent conduct required to establish this offence a custodial sentence will be appropriate, save in exceptional circumstances. We consider that ordinarily that sentence will be one of immediate custody.”

However, the sentencing judge went on to state as there was nothing exceptional about this case, an immediate custodial sentence of 10 months must be imposed. This incorrectly conflated the two principles in paragraph 16 of Cook.

“[17] We are in no doubt that the Learned Judge did misinterpret the first two sentences of [16] in Cook. The first sentence makes clear that in view of the inherent conduct required to establish this offence a custodial sentence will be appropriate, save in exceptional circumstances, and such a custodial sentence may be immediate or, in appropriate cases, may be suspended. The second sentence makes clear that:  “Ordinarily the sentence will be one of immediate custody”. “Ordinarily” is not to be equated with “exceptional circumstances”, which is where the Learned Judge fell into error.”

The court noted that applying the overarching guideline a suspended sentence would have been imposed (due to the appellant’s deportation, however, the appeal was dismissed).

R v Wilson [2023] EWCA Crim 673

Perverting the Course of Justice – Suspended Sentences – Prison Population

The defendant received a sentence of 24 months’ imprisonment suspended for two years for dangerous driving, perverting the course of justice, and criminal damage. In a reference under s.36, the Attorney General submitted that the sentence was unduly lenient as inter alia imposing suspended sentences for perverting offences were exceptional. The Court of Appeal accepted that the sentence was unduly lenient but refused to impose a custodial sentence.

In respect of the prison population and Ali [2023] EWCA Crim 232, the court observed that:

[38] “…It was said that currently there was a very high prison population which is an additional factor that a sentencing court should take into account. Such a principle will apply to shorter sentences until prison conditions have returned to a more normal state.”

As to the decision to suspend:

43. The Recorder found, as we have already indicated, that there were exceptional circumstances: the offending arose out of a suicide attempt; Mr Wilson was the carer for his partner; and he shared the care of his autistic ten year old daughter. The Recorder had also referred to Ali. We consider that it was not only lenient, but that it was unduly lenient not to impose an immediate custodial sentence for the offence of perverting the course of justice. The jurisprudence is clear. An immediate custodial sentence should be imposed for the offence of perverting the course of justice. That is because of the damage that is caused to the justice system by those who lie and deceive the investigating and other authorities, including the courts. This offending continued for fifteen months.

R v ZA [2023] EWCA Crim 596

Sentencing children and young people – youth-specific guidelines – sentencing notes – YRO

Following conviction at the Central Criminal Court for conspiracy to rob, and guilty pleas to possession of a bladed article and conspiracy to steal, a youth sentence was reduced on appeal from five years to three. The appellant was aged 15 at the time of the offending; 16 at the date of conviction.

The sentencing Judge took account of both offence-specific adult guidelines and the overarching youth guideline, but failed to refer to the specific youth robbery guideline. It was submitted on behalf of the appellant that this resulted in different considerations affecting culpability and harm. It was also submitted that, as a youth, aspects of the appellants circumstances called for an alternative to custody.

On appeal the court stressed the importance of full and accurate sentencing notes from prosecution and defence, directing courts attention to relevant specific guidance. The necessity of an individualistic approach was also noted.

The court concluded it is generally unhelpful to go straight to paragraph 6.46 of Overarching Youth Guideline (“half to two-thirds of the adult sentence”). The stepped approach in the youth-specific guideline should have been followed.

The court noted that a YRO with ISS would have been a particularly suitable disposal, and that concurrent sentences of detention for non-grave crimes are unlawful.

The Judgment provides a suggested checklist for the sentencing of youths, including consideration of separate listings for young people jointly convicted with adults and full sentencing notes identifying all relevant guidelines, particularly youth specific guidelines.

[82] “This appeal has generated a number of lessons to be learned when sentencing children and young people, especially when they have been tried together with older co-accused, as the appellant was here. An entirely different approach to sentence is required than that which courts routinely apply to adult offenders.”

[82(6)] “In general it will not be helpful to go straight to paragraph 6.46 of the overarching youth guideline without having first directed the court to general principles canvassed earlier in that guideline, as well as to any youth-specific guideline. The stepped approach in the overarching youth guideline and any youth-specific offence guideline should be followed.”

[82(7)] “If the court considers that the offence(s) is(are) so serious as to pass the custody threshold, the court must consider whether a YRO with ISS can be imposed instead. If it cannot, then the court must explain why.”

R v Kilkenny [2023] EWCA Crim 861

Sentencing – Manslaughter – Dangerousness

The Court of Appeal issued the following guidance when sentencing manslaughter and considering dangerousness generally:

“(1) Courts when passing sentence in manslaughter cases, as in other cases, must follow the stepped approach in the Definitive Guideline.

(2) Where the Definitive Guideline has a step (step 5 in a manslaughter case) which requires consideration of dangerousness, that issue must be specifically addressed by counsel and the judge. Even when it is not being actively considered, it requires passing reference, to ensure it is not being overlooked, and the judge, as well as counsel, are not passing-by an important topic.

(3) If a judge is contemplating a finding of dangerousness, and is thereby considering passing an extended sentence or life sentence, he or she should ordinarily raise that with defence counsel to allow submissions.

(4) We also remind courts when passing sentence, it is generally an essential and necessary requirement to obtain a pre-sentence report when an extended sentence is within the active contemplation of the court. It is not a mandatory statutory requirement, but it would be generally unwise to decline to do so, save in the most obvious or exceptionally serious forms of violence falling for sentence, or where the offender is without a shadow of doubt a dangerous man, or where it is accepted by his defence lawyers that he is dangerous.

(5) If a report has been sought, and it is not available on the day of sentence, it is important that steps are taken immediately to secure the report. If an adjournment is required, however regrettable the resulting delay may be, an adjournment should ordinarily be sought and granted.”

R (on the application of the CPS) v Preston Crown Court & Ors. [2023] EWHC 1957 (Admin)

Appeals to the Crown Court – Guilty Pleas – Bar to Appealing Conviction

In 2015, the Appellant pleaded guilty in the Youth Court to eleven offences of making indecent images of a child, and a single offence of having indecent images of a child in his possession. In 2022, his case was referred to the Crown Court by the CCRC under s.13 of the Criminal Appeal Act 1995.

The Crown submitted that it was necessary for the Appellant to first vacate his plea at the Youth Court before the Crown Court could proceed to hear his appeal by way of a re-hearing. In dismissing the Crown’s claim, the court found that s.11(2) of the Criminal Appeal Act 1995 allowed the CCRC to oblige the Crown Court to hear an appeal without having to remit to the magistrates’ court. Outside of a CCRC referral, the court made the following observations about the Crown Court’s powers:

[19] Section 108 [Magistrates’ Court Act] 1980 contains what appears to be an absolute bar on an appeal to the Crown Court against conviction after a guilty plea in the Magistrates’ Court. The higher courts have had to consider this question on a number of occasions, both before and after the introduction of the statutory bar. It is clear that the Crown Court does have a power to vacate a plea and remit to the Magistrates’ Court for trial, but the circumstances where it may exercise that power are not entirely clear.

…

[31] It is clear that the power of the Crown Court to vacate a guilty plea on appeal from the Magistrates’ Court is circumscribed. It is not as broad as the power of a trial court to permit a change of plea before sentence, or the power of the Court of Appeal Criminal Division to entertain an appeal against conviction following a plea of guilty in the Crown Court. It applies to an equivocal plea, that is one which the justices ought not to have accepted…

R v Rees [2023] EWCA Crim 487

Indications of Sentence – Inappropriate Pressure to Plead

Counsel for the parties were called into court in the absence of the defendants. The Crown said they would accept pleas on some counts from one defendant (“D”) in exchange for offering no evidence on the remaining counts in addition to those against his father. An exchange took place between the judge and defence counsel for D, where the former asked if the defendant was “fit and well”. Defence indicated that they understood the meaning of this (a non-custodial sentence with unpaid work), but did not ask for further clarification. A Goodyear indication was not given by the judge.

Defence counsel had a conference with D who later pleaded guilty. The Court of Appeal found that the defendant was of the belief that he was at risk of immediate custody if he was convicted by a jury, and was told that risk no longer applied if he pleaded guilty.

The defendant appealed on the basis that inappropriate pressure had been exerted by the judge and defence counsel. In quashing the conviction, the Court of Appeal found that the judge’s indication had rendered it unsafe:

35. We think it right to observe that hearings of the kind which took place in this case ought not to happen. Discussions about sentence between counsel and the court should take place in the presence of the defendant whose sentence is being discussed. Indications should be given in clear terms so that their implications are unambiguously understood by all concerned. In our judgment, the principal responsibility for ensuring that this happens falls on the judge, particularly in circumstances where it is the judge who has initiated the whole process. We also consider that where a judge is seeking to give an indication of sentence in this unconventional and inappropriate way, it is the responsibility of counsel on both sides to ensure that the proceedings are conducted in accordance with the law as it has been clearly explained by this court on a number of occasions.

36. The concern of defence counsel is, of course, to ensure that they clearly understand what the court is saying so that they can give accurate advice to their client whose proper interests are safeguarded. So far as the prosecution are concerned, the prosecution here acts as a minister of justice, and in our judgment, has, if nothing more, an obligation to submit to the court that conversations of this kind should only happen in the presence of the defendant.

JCS Guidance on expiry of time to deal with proceedings on arrest for breach of bail under section 7 Bail Act 1976

JCS Criminal Law and Committee Board guidance on the meaning of the requirement defendants be brought before the court within 24 hours of arrest.

The defendant must be brought before a magistrate or judge within 24 hours (not simply in the cells), but the application does not need to be concluded.