Conditional cautions
Case management
Disclosure
Detention and training
Drug supply
Expectation
Newton rules
Bad character
Obligatory sentences
Guilty plea discount
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Conditional cautions
The process of conditional cautioning is now being introduced on a rolling basis throughout the country. A conditional caution falls between a simple caution and a full charge. It is a caution with conditions imposed either to assist in the rehabilitation of the offender and/or to require the offender to make reparation to the victim.
However, should an offender fail to comply with any condition then he may be prosecuted for the original offence. For the new scheme to operate, the offender must be 18 or older at the time of the disposal, and must have made an admission to an investigating officer. The prosecutor must be of the view that there is sufficient evidence to charge and there must be consent by the offender to the conditions imposed.
A conditional caution may be imposed more than once if there had been a suitable gap (more than five years) or a different type of offence had been involved. There is no reason why a conditional caution should not be used even though an offender has been charged with a different offence on an earlier occasion. In this way, it differs from the youth referral scheme. A conditional caution code of practice has now been issued and sets out in paragraph 4 the statutory requirements of the scheme.
The first of these is that there must be evidence that the offender has committed the crime, which must include an admission made by the offender prior to any mention of a conditional caution. This is an unrealistic expectation introduced in an attempt to prevent any suggestion of an inducement. However, any competent solicitor would be bound to mention the subject of a conditional caution when giving advice in an area where they are known to be used.
There must be sufficient evidence for a charge to be preferred and the prosecutor must be of the view that a conditional caution is appropriate. There must then be a further formal admission with a further offer of legal advice if none has yet been received. An officer must explain the affect of a breach of the conditions and the fact that the conditional caution will be maintained on police records.
For reasons that are difficult to understand, there can be no negotiation over the conditions imposed. Given that a defence solicitor may have the best knowledge as to what would prove a suitable condition for a particular defendant - and this would involve no lack of independent judgement by a prosecutor - the provision seems unfortunate. There must then be a signature by the offender to a document setting out in formal terms the admissions - and that document will be admissible in evidence as to the truth of its content.
It is the imposition of conditions that is likely to cause the greatest problem when there is a breach and a prosecutor has to decide whether to amend the conditions or authorise a prosecution for the original crime. The code requires that conditions must be proportionate, achievable and appropriate and either promote rehabilitation or reparation.
It is always a condition not to commit further offences. There is no removal of the six-month time-limit for the prosecution of summary-only offences and in such cases conditions will have to be carefully set to be completed within the time available.
There will be a duty on offenders to show compliance with their conditions and to report any failure and to explain the circumstances that might amount to a reasonable excuse.
It will be important that solicitors point out this requirement to clients, as it may be relevant evidence on a judicial review of an inappropriate decision to prosecute.
The code anticipates that judicial reviews may be sought, but there appears to be no reason why in the proceedings themselves an application should not be made to stay for abuse by analogy with the decision in DPP v Ara [2001] 4 All ER 559, where a prosecution was stayed because a solicitor had not been given sufficient information to give sensible advice about the appropriateness of a caution - and yet the Crown sought to prosecute.
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Case management
The senior courts have now adopted a more appropriate approach to defence advocacy. In Khatibi v DPP [2004] 168 JP 361, the court accepted that it was proper for a defence advocate to put the prosecution to proof of each point and to keep silent as to shortcomings until advantage could be taken of them.
However, it then went on to acknowledge the different circumstances that now allow for the adjournment and re-opening of cases generally in the interests of justice. These changes were further explored in Tuck v Vehicle Inspectorate (noted in No 20 Independent Lawyer 2004, 20). It confirmed that discretion to allow the reopening of cases is not limited to matters arising on the spur of the moment or to mere technicalities; it has become a general discretion.
However, the general rule is that the Crown must finish its case once and for all and defence lawyers will wish to emphasise that the discretion to reopen should be used only rarely.
The discretion must be exercised to be fair to the defendant and ensuring that no prejudice will be caused. But the court confirmed that while criminal procedure is adversarial, it is not a game, and the overall interest of justice required a prosecution should not fail merely through inefficiency, carelessness or oversight.
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Disclosure
In R v Alibhai [2004] 5 Archbold News 1, the Court of Appeal gave helpful guidance about obtaining third-party material.
Defendants are often at a significant disadvantage as the law requires that to obtain a witness summons under either section 97 of the Magistrates Courts Act 1980 or section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965, the defence must show why the material they seek is relevant.
In most circumstances, the defence is seeking to find out whether it is indeed relevant to its case. The alternative approach is to require the Crown to seek such third-party material, using the provisions of paragraph 3.4 of the code made under the Criminal Procedure and Investigations Act 1996 (CPIA).
Alibhai confirms that the trigger for the prosecution to obtain third-party disclosure is suspicion that the third party might hold information that would be discloseable in the hands of the Crown. Commercial confidentiality could not justify a refusal to disclose; rather, victims must take proper and efficient steps to make the information available. Once an investigator has seen the material the normal CPIA rights exist for the defence to seek assistance from the court.
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Sentencing
Detention and training
The law on the availability of detention and training orders has been reinterpreted for those who are not persistent offenders, and who are younger than 15 on the date the crime is committed but who reach that age prior to conviction. The decision in R v L M [2003] 2 Cr App R (S) 124 had suggested that, if a young person was not a persistent young offender and committed a crime when younger than 15, that person could not be dealt with, for a non-grave crime, by way of a detention and training order, notwithstanding that the offender had reached 15 years of age by the time the conviction took place.
However, in R v Thomas [2004] Crim LR 1052, it was pointed out that the statute only prevents the imposition of a detention and training order on someone who is not a persistent young offender if that person is younger than 15 on the date of conviction. The Court of Appeal emphasised that this is not designed to change the test that is applied by magistrates at grave-crime hearings. This remains whether a sentence of two years or more may be required on the particular facts.
However, the decision identifies a situation in which the defence may need to act with speed to ensure, in appropriate cases, that a conviction takes place before a defendant has reached his 15th birthday.
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Drug supply
The sentencing of street-level class A drug users, who supply others to provide funds to feed their own habits, has been significantly affected by the decision in R v Afonso (2004) The Times 14 Oct, particularly in a situation where the drugs are supplied to an undercover police officer. The Court of Appeal has now recognised that those who have a drug habit need to feed it, and do so either by theft, prostitution or low-level supply.
That itself amounted to a mitigating circumstance and it was significant if the offender held no stock and supplied an undercover police officer. In those circumstances, the most advantageous disposal may be a drug treatment and testing order.
For those for whom such an order was not available, sentences should be in the range of two to two and a half years (with less for young offenders), significantly less than the previous tariff.
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Expectation
The principle of expectation was further confirmed in R (White) v Barking Magistrates' Court [2004] 148 SJ 294.
To retain a power to commit for sentence, a bench must expressly state that it is doing so. The expectation principle ceases to apply if the bench, at the time of giving the expectation, was under a material misapprehension as to fact, introduced by the defence. Where the misapprehension is based on a misreading of circumstances unknown to the defence the court has to apply the normal expectation principle.
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Newton rules
The importance of the Newton rules was again emphasised in R v Underwood and others [2004] Crim LR 1049.
A defendant will be sentenced on the prosecution version of the facts until the defence identifies issues as to which there is a difference. Once that has been done, usually in writing, in a way that can be produced to the judge, it will be for the Crown to establish its version of events by admissible evidence beyond reasonable doubt. The court is not bound to accept the defence version given in evidence but must give a ruling as if summing up to a jury, clearly setting out the findings made by the court.
A finding at a Newton hearing cannot be inconsistent with other pleas of not guilty already accepted by the Crown. If the Crown does not make out its version of the facts then the defendant is entitled to a full discount. However, a discount will be reduced if the Crown has succeeded.
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Bad character
In R v Bradley (2005) The Times, 17 Jan) the Court of Appeal has held that the new provisions on bad character can be applied in any trial or Newton hearing commencing on or after 15 December 2004.
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Obligatory sentences
The procedure for handling, in the magistrates' court, a person who is charged with a third domestic burglary or a third class A drug trafficking offence must be the correct one. If a person is wrongly treated as if having committed a third burglary, and sent (under section 51 of the Crime and Disorder Act 1998) to the Crown Court, everything that happens thereafter is a nullity. A committal for sentence would have to take place in new proceedings (see R v Hoare [2004] Crim LR 594).
Relevant details for mitigation were considered in relation to a third-time drug dealer in class A drugs in R v Pearce [2004] Crim LR 961. The mitigating circumstances of the earlier offences, such as that there was a low-level supply, could not make it unjust to impose the minimum term. However, the basis of plea to the current matter could do so. Such circumstances would include a short period holding the drugs, the fact that the defendant was under considerable pressure, and that the drugs were held without commercial gain. But the personal circumstances of this particular defendant prevented those arguments assisting her in the case reported.
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Guilty plea discount
The first sentencing guideline published by the Sentencing Guidelines Council (SGC), in relation to the guilty plea discount in sentence took effect for all offences sentenced on or after the 10 January 2005. Under section 172 of the Criminal Justice Act 2003, every court must have regard to this guideline when passing sentence.
A discount for a guilty plea is not a new concept. However, the guideline now published introduces a sliding scale by which a one-third discount will only be given where the guilty plea is entered at the first reasonable opportunity in relation to the offence for which the sentence is being imposed. The discount is reduced to a maximum of one-quarter where a trial date has been set, and to a maximum of one-tenth for a guilty plea entered at the door of the court or after the trial has begun.
The level of reduction will reflect the stage at which the offender indicates a willingness to admit guilt to the offence for which he is eventually sentenced. Defendants who do not plead at plea before venue but are committed for sentence may only receive a 30% discount at a plea and directions hearing.
Annex 2 to the sentencing guideline has a detailed explanation of what is meant by the phrase 'first reasonable opportunity'. This may be the first time that a defendant appears before a court and has the opportunity to plead guilty, but a court may consider it would be reasonable to have expected an indication of a willingness even earlier, perhaps while under interview. However, in either situation, the court will need to be satisfied that the defendant and any legal adviser would have had sufficient information about the allegations.
The guidelines separate the issue of discount for guilty plea from issues of remorse and other mitigating factors.
In future, genuine remorse or willingness to admit offences that would not otherwise have been investigated or proved is reflected in the original sentence, which must then be reduced by a further one-third in the event of the early guilty plea.
The guidelines clarify several other issues. No discount is any longer to be lost when an offender is caught red-handed. Where summary-only offences are under consideration and consecutive sentencing may be possible, some allowance for the entry of a guilty plea must still be made. A maximum sentence may continue to be imposed where a committal for sentence is avoided (confirming R v Warley MC ex p DPP [1998] 2 Cr App R 307) or where a detention and training order is used in place of a period of long-term detention under section 91 of the Criminal Courts (Sentencing) Act 2000.
An early guilty plea may also enable a court to impose a community sentence when otherwise the custody threshold might have been passed and similarly to impose a discharge or fine when the community threshold might otherwise have been passed. The actual sentence imposed will then incorporate the reduction. The discount applies to the punitive element of all sentences but has no impact on ancillary orders or to protective sentences (such as an extended sentence).
A special section of the guideline deals with its application to sentences for murder. Where a full life tariff is imposed, there is no room for a discount. In other cases, the discount will be half of that normally applied to all other offences but with a maximum of five years' discount being available. The SGC has also published two additional guidelines in relation to the new sentencing regime under the Criminal Justice Act 2003.
It is expected that these will come into effect on 5 April 2005, but in the meantime they are being used to train the judiciary.
By Anthony Edwards, TV Edwards, London
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