Sentencing guidelines
The Sentencing Guidelines Council has updated the compendium of sentencing decisions that qualify as guidelines, to include a series of recent decisions (see www.sentencing-guidelines. gov.uk).
In R v Oosthuizen [2005] Crim LR 979, the Court of Appeal held that a full discount for a guilty plea must be allowed, even in cases where a defendant is caught red-handed, and that cases decided before the relevant guideline was published were no longer to be regarded as good law. This was also confirmed in R v Forbes [2005] EWCA Crim 2069, which held that there are good policy reasons for giving credit even if in reality the defendant had no choice but to plead guilty.
R v Oosthuizen also decided that a local court should not make assumptions on local prevalence and should not impose, for reasons of local deterrence, a penalty higher than is otherwise appropriate, unless there is good research evidence available for the area that allows a temporary variation from the normal national standard.
Time on remand
The same case also considered the position when the court had failed to follow the duty imposed on it by section 240 of the Criminal Justice Act 2003 (CJA) to direct that days spent on remand should count as time served, unless some closely defined discretions were found to exist. Home Office regulations have been passed indicating that time in custody should not be allowed to count for more than one purpose, but other reasons will need close definition in judgment. If a magistrates' court overlooks the requirement to make allowance for time on remand, the matter should be re-listed under section 142 of the Magistrates Court Act 1980. However, in the Crown Court there is a 28-day time-limit to correct an error and the same judge is required.
The Court of Appeal indicated that it would be reluctant to accept appeals on the basis that the court had failed to undertake its duty on this issue. Therefore, solicitors should confirm, in any case which they did not conduct themselves, that proper allowance for time on remand was made.
Indication of sentence
In R v Goodyear [2005] 3 All ER 117, the court has now allowed advocates to approach a judge in the Crown Court for an indication of the sentence he would impose were a particular defendant to plead guilty. These applications must originate from the defendant (albeit on advice), who must instruct the advocate in writing to obtain one. Such an indication would be binding, provided the plea is then entered within a reasonable time, but such indications cannot be banked pending the outcome of a trial.
Goodyear is only of use where the facts of the matter can be agreed. However, the Crown is not bound by such an indication, and the Attorney-General will still be able to refer appropriate cases, where the power exists, to the appeal court for a ruling that the sentence was unduly lenient. No court is bound to give an indication.
Racial aggravation
Where the Crown is in the position of being able to charge a racially aggravated version of events (for instance, causing actual bodily harm) but chooses not to do so, a judge may not sentence as if there had been racial aggravation when dealing with the basic offence (R v Macgillivray [2005] Crim LR 482). Where there is no aggravated version of the offence and the aggravating circumstances are not relevant at a trial, a judge may not sentence, on the basis of aggravation, without bringing the matter to the attention of the defence so that there may be, if required, a Newton hearing on the issue, prior to sentence being imposed (R v O'Callaghan [2005] Crim LR 484).
Dangerous offenders
The appeal courts have begun to give guidance on the sentencing provisions, introduced by the CJA, to deal with those convicted of specified and serious specified offences, where the court might consider that there is a significant risk that serious harm will be caused to members of the public by the commission of further specified offences. R v Lang and others (2005) The Times, 10 November, established a number of principles.
'Members of the public' need not be construed broadly and is not to exclude any particular group such as co-habitees or family. Mental Health Act orders under section 37 can override the dangerous offenders provisions. In assessing significant risk, the following should be noted:
In R (DPP) v South East Surrey YC (2005) The Times, 28 December, the court specifically considered the position of youths facing allegations of specified offences. It emphasised that the policy of the legislature is that youths should be dealt with in the youth court. Because an assessment of significant risk required a pre-sentence report, it would seldom be appropriate to consider the issue, certainly for non-serious specified offences, prior to conviction. At that stage, there could be a committal for sentence in appropriate cases.
When extended sentences are imposed on dangerous offenders, it appears that the extended term begins at the end of the expressed 'custodial term' - whatever the date of actual release (see Regina v S (2005) The Times, 30 December).
Character in the police station
The Crown is able to lead at trial evidence of a defendant's bad character if the defendant has passed through any one of seven gateways and the additional statutory requirements are met.
Two of the gateways are unlikely to arise at the police station stage. These are where bad character is admitted by agreement or where there is an issue between suspects. In the police station, most solicitors will advise that no comment be made on anything that has been said by a co-suspect as it is, at that stage, still inadmissible hearsay.
Three of the gateways represent a substantial risk for suspects if they are not careful about what they say during interview. Thus, if they give a false impression about themselves, volunteer information about previous misconduct, or make imputations against a witness, their character can be led.
These phrases are being interpreted widely. Thus a false impression was held to exist where misleading statements were made as to the nature of a suspect's employment, and the circumstances in which he came to be injured in a road-traffic incident (see R v Renda [2005] EWCA Crim 2826) or where a false impression was given as to one's standing in the community (see R v Somanathan [2005] EWCA Crim 2866).
The greatest risk is the making of imputations. Solicitors are well able to intervene to prevent a suggestion that a witness is lying. This is a matter of opinion on which the defendant is not qualified to comment. However, in R v Ball [2005] EWCA Crim 2826, the mere use of the word 'slag' was held to be a sufficient imputation against a witness to allow in the defendant's previous convictions.
Solicitors will need to deal with all these issues in consultation, with strong advice to clients not to deal with their previous history of offending, and to restrict themselves to a factual description of what has occurred without any comment about any witness who may give evidence to the contrary.
The final two gateways are within the control of the investigating officers.
The first is whether there is an issue between the defence and the Crown, namely whether there is a propensity to commit crime or a propensity to untruthfulness. There can be no doubt that if the investigating officer makes general enquiries about previous conduct, no comment should be made. If the officer is merely investigating the list of convictions, without particular reference to the facts, there is no possibility of an inference being drawn to the defendant's disadvantage, and the defendant may merely be enabling the Crown to obtain evidence about previous offending that it would otherwise have had great difficult proving.
Furthermore, it is far from clear that all forms of misconduct will be admissible as bad character reference. Thus in Jones v Whalley [2006] Crim LR 67 (a case where a private prosecution had been brought following the acceptance of a caution), the court stated that the caution is not a conviction and is likely to be excluded as admission of guilt at trial.
Similarly, there are some issues about the extent to which mere allegations can be used as evidence of misconduct.
The position in relation to defendants is certainly not as advantageous as for those who are merely witnesses. In the latter case, it is difficult to have a mere allegation put in evidence (see R v Bovell; R v Dowds [2005] Crim LR 790; R v Akram [2005] EWCA Crim 2826). However, in R v Smith (David) (2006) The Times, 2 January; R v Rafiq [2005] Crim LR 963; and in Somanathan, earlier incidents involving the defendant were allowed to be made known to the jury.
Matters become more difficult for the defence where an investigator has done some fuller investigation and identified specific relevant facts in the earlier events that are material to the issues between the Crown and the defence in relation to the new investigation. In such circumstances, a failure to deal with them may lead to inferences under section 34 of the Criminal Justice & Public Order 1994.
Much the same reasoning applies to the final gateway, namely whether it is important explanatory evidence. Thus, if the police disclose that they intend to ask about an earlier incident of domestic violence, when investigating the crime reported to them, the failure during investigation to mention relevant facts could well lead to disadvantageous inferences.
However, in each of these two examples, it may be better to advise a no-comment interview while preparing a timed and dated statement from the suspect (which is not disclosed at this stage), so that there can be no suggestion at a later stage that the facts of the previous convictions or conduct have been the subject of recent fabrication.
The difficulties for the Crown in proving the facts of earlier convictions were emphasised in R v Humphris (2005) The Times, 19 September, when it was said that while the fact of the conviction might be admitted as a business document under section 117 of the CJA, the same would not apply to the detailed circumstances of the relevant offence.
Once a case reaches court, the Crown has to overcome a number of hurdles before it is able to prove prior misconduct. It must first establish one of the three routes to admissibility. These are that the new offence alleged is in the same category as a previous conviction, or that the allegations are offences of the same description, or that the facts have sufficient similarity to allow for the admission of the earlier incident.
This is not the same test as used to be provided by the similar fact rules (see R v Somanathan (2005) The Times, 18 November).
Because the particular facts will have to be proved in this final largest group, the defence should be confident that the Crown can establish those facts before making admissions, certainly in the police station.
Once the Crown has established one of these three possible routes to admissibility, it must satisfy the court on three further matters. It must persuade the court that the existence of the misconduct shows a propensity to commit crime.
Outside sexual crime, this is unlikely to be possible if there is only one previous conviction.
Secondly, that propensity must make it more likely that the particular offence would be committed. This will have a particular relevance where the original source of admissibility was that the offences were in the same category.
Finally, even if the propensity does make it more likely that this particular crime would be committed, the court must be satisfied that it would not be unjust to admit the previous convictions and that there were sufficient other evidence for the Crown to proceed (see R v Hanson Gilmore & Pickstone [2005] Crim LR 787).
By Anthony Edwards, TV Edwards, London
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