The Court of Appeal has quashed an unlawful sentence after finding it was too short to be suspended.

The court also heard that the appellant, who appeared in court over an alleged assault, had lied to the court that he failed to appear in time for his trial because of his solicitor. 

The appellant denied assault and assault by beating in December 2021. His case was listed on the warned list to start on any day during a two-week period starting on 16 January 2023. The two-day trial was called on during the second week. The appellant, who was not named in Rex v Abdulrahman Haddad, was working and could not reach the court until the afternoon.

The appellant, who was acquitted of the assault charge, was charged for failing without reasonable excuse to surrender to his bail at the appointed time in relation to his late arrival to court. He claimed he was not told his trial could begin on any day in the two-week period and his solicitor had told him to call in sick so that the court could be informed. The solicitor denied the claim.

The Court of Appeal judgment said the appellant ‘on his own admission’ had been told by his solicitor before the warned list period began that he would have to be available at short notice for the start of his trial on any day within that two-week period.

Finding the appellant’s conviction for failure to attend was safe and dismissing the appeal against conviction, the judgment said the appellant ‘had taken an unreasonable risk’ in not making sure he could have an additional week’s leave if needed. The judge ‘was fully entitled to conclude that…there was no reasonable excuse for his failure to attend’.

It added: ‘Instead, in an attempt to explain away his own error and misconduct he had tried to maintain, falsely, that he had never been told that the trial could begin on any day within the two week period.’

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The judge sentenced the appellant to seven days imprisonment suspended for six months for failing to surrender. The minimum term of imprisonment that may be suspended is 14 days. The suspended sentence imposed on the appellant was unlawful, the CoA found. 

Allowing the appeal against sentence, Sir Robin Spencer, with Lord Justice Singh and His Honour Judge Timothy Spencer KC, sitting as an additional judge of the Court of Appeal (criminal division), quashed the suspended sentence and ordered an absolute discharge.

Sir Robin Spencer said: ‘The judge plainly intended to pass and thought he was passing a standard suspended sentence of imprisonment for the Bail Act offence of failing to surrender. That is why he referred to the relevant Sentencing Council guideline for failure to surrender to bail. 

‘We are quite satisfied that the judge in the present case was not imposing a term of imprisonment for contempt by way of committal. He was simply imposing a sentence of imprisonment for a criminal offence.

‘Although the judge was entitled to impose a suspended sentence of imprisonment for this Bail Act offence, the sentence he passed was unlawful because the minimum term that may be suspended is 14 days, and here the term imposed was only 7 days. It follows that the suspended sentence must be quashed.’

 

Joe Weeks appeared for the appellant and Bhavin Patel appeared for the Crown.