• Out of court disposals (OOCDs) have long been viewed by advocates to be an efficient and effective response to criminal behaviour, in particular in the case of low-level offending by first time offenders.
• In most police force areas in England and Wales there are currently six different OOCDs available: community resolutions; cannabis/khat warnings; Fixed Penalty Notices; Penalty Notices for Disorder; simple cautions; and conditional cautions.
• Some police force areas have been trialling a new, two-tier, approach to OOCDs in recent years and the Government’s September 2020 White Paper, A Smarter Approach to Sentencing, proposes rolling this out nationally. This will reduce the number of available OOCDs to two: community resolutions (for less serious offending/offenders with limited offending histories) and conditional cautions (for more serious offending/offenders with more significant offending histories).
• The use of OOCDs rose sharply between 2004 and 2007 following the introduction of an ‘offenders brought to justice’ target for police forces. The removal of this target precipitated a steady decline in the use of OOCDs since 2008.
• OOCDs can offer efficiency savings as it is generally quicker and cheaper to issue an OOCD than it is to prosecute an offence through the courts. This can have advantages for all parties involved in the criminal justice process, including facilitating greater victim involvement. However, the use of OOCDs also raises concerns about whether they are being used consistently and for appropriate cases. There is a wide variation in the use of OOCDs between different police forces: in 2018, OOCDs accounted for 10% of offences brought to justice in Cleveland but 53% of offences brought to justice in neighbouring Durham.
• Concerns have also been raised about the adequacy of the mechanisms of ensuring accountability of decision-making in the issuing of OOCDs. The primary method of external accountability is through the use of OOCD scrutiny panels; however, the organic evolution of these panels has raised questions about their effectiveness.
• Whilst OOCDs are an important tool in the criminal justice system’s toolbox, it is essential that scrutiny is applied to the decision-making process to ensure that OOCDs are issued efficiently, appropriately and consistently.
Ronan Hughes, Gheorghe Nica, Maurice Robinson and Eamonn Harrison were today sentenced for 39 counts of unlawful act manslaughter. All four offenders were involved with people smuggling operations whereby migrants were loaded into the backs of sealed lorry containers and transported across mainland Europe to the UK. On 22 October 2019, during one such smuggling operation, 39 Vietnamese migrants were loaded into the back of a sealed lorry container. This was a much higher number of people than previous occasions and it was suggested that this increase in numbers was to make up for a previous failed smuggling endeavour. Each victim paid between £10,000-£13,000 for their place in the container.
As the container was driven across Europe to the Belgian port of Zeebrugge by Harrison, the temperature inside the container rose significantly, reaching a maximum of 38.5 degrees. As it did so oxygen levels depleted. Those inside the container began to overheat and struggled to breathe. By the time the container arrived at the docks in Purfleet, Essex all of the victims had died of either overheating, or asphyxia and hyperthermia. The lorry driver collecting the container from Essex was Robinson. Robinson had received a message from Hughes instructing him to check on the victims but ‘not let any escape’, which he agreed to do. Robinson found an opportunity to pull over and surveyed the back of the lorry. On seeing that all 39 individuals were dead Robinson called Hughes who instructed him to destroy his phone and contact the emergency services. After destroying his phone, Robinson called for an ambulance which attended with the police.
All four offenders received custodial sentences for manslaughter. Hughes received a sentence of 20 years’ imprisonment, Nica received a sentence of 27 years’ imprisonment, Robinson received a sentence of 13 years and four months’ imprisonment and Harrison received a sentence of 18 years’ imprisonment. As these sentences are longer than seven years, and for a specified offence, all four offenders will have to serve two-thirds of their sentence in prison before release.
The trial which resulted in these convictions did not deal exclusively with the manslaughter charges. It also dealt with a wider set of offending relevant to a total of four unlawful consignments of migrants smuggled to the UK in October 2019. It was the final of these consignments which resulted in the deaths of the 39 people. Four other offenders were sentenced for associated offences but, crucially, were not convicted of manslaughter. Commenting on the exceptional nature of this offence at sentencing, Mr Justice Sweeney provided: ‘I am conscious that there is nothing that I can either do or say that can either reflect the value of their lives, or reflect the extent of the loss to their families whose moving statements I have considered with care’.
What is unlawful act manslaughter?
Unlawful act manslaughter is a homicide offence that requires a death to result from the commission of an unlawful act which itself presented an objective risk of causing bodily harm to another. The accused need not have actually intended to cause any harm to anyone, nor appreciated the risk of harm presented. Instead, they need only have the relevant intention to commit the unlawful act which resulted in the death. Accordingly, in this case, the offenders’ intention to conduct the smuggling operations, coupled with the objective dangerousness of concealing 39 individuals in a sealed container for a significant number of hours, satisfied the requirements for conviction for this offence.
How is unlawful act manslaughter sentenced?
Sentencing courts in England and Wales are required to follow offence-specific sentencing guidelines issued by the Sentencing Council. All relevant guidelines must be followed unless the court is satisfied that it would be contrary to the interests of justice to do so. The guidelines establish both a starting point and a sentencing range for the court to follow, with these being based on a guided assessment of the harm caused by the offence and the culpability of the offender.
The sentencing guidelines for the offence of unlawful act manslaughter provide a range of 1- 24 years’ custody. The maximum available sentence is life imprisonment, although a discretionary life sentence is considered to require, in addition to the commission of a very serious offence, a finding that the offender poses a future risk to the public. In these unusual circumstances, despite the seriousness of the offence, none of the offenders were found to pose a sufficient future risk to meet the criteria for a life sentence. Mr Justice Sweeney noted that: ‘I agree with the submissions on all sides that none of those facing sentence for manslaughter meet the statutory definition of being dangerous offenders. Nor, in my view, and very serious though they are, do the manslaughter offences, whether alone or in combination, meet the relevant criteria for the imposition of life sentences.’
The breakdown of sentencing starting points and ranges for this offence is illustrated in the below table, with categories A-D indicating offenders assessed to have the highest to lowest culpability respectively. Importantly, this guidance reflects the starting points and ranges relevant to a single count of unlawful act manslaughter. In this case, Mr Justice Sweeney determined that the manslaughter offences fell in Category B, with a starting point of 12 years.
The roles and sentences of the offenders
It was concluded that Hughes and Nica played a leading role in the conspiracy to people smuggle and Harrison and Robinson, both of whom were lorry drivers, played a lesser role in the conspiracy. Harrison was a lorry driver recruited by Hughes and his role was to meet the migrants at the designated locations in Europe, load the migrants onto the trailers, give them instructions about the journey, and transport the lorry to the designated port. Robinson was the lorry driver who was responsible for picking up the container after it had arrived in the UK before transporting it to a designated location.
The roles of each offender was varied and this was reflected in the sentences handed down. There were common aggravating features to all of the offenders identified by Mr Justice Sweeney: that the underlying conspiracy was committed for financial gain; that death occurred in the context of an offence that was planned or premediated; that significant mental or physical suffering was caused to the deceased; that, after the event, all four defendants disposed of their unregistered phones.
The longer sentences for Hughes and Nica (of 20 years and 27 years respectively) were reflective of their leading roles in the operation. In the case of Hughes, an additional aggravating factor was that he had a relevant previous conviction (section 65 of the Sentencing Act 2020 provides that previous convictions should be treated as an aggravating factor if the court considers they are relevant, having had regard to the amount of time that has elapsed since that previous conviction). Treated as an aggravating factor for Nica was that he left the country after the offence. However, key to understanding the differing sentences is the reduction in sentence that is available to offenders who plead guilty. A guilty plea entered at the first reasonable opportunity attract a reduction of one-third to the sentence. Both Hughes and Robinson received this full discount and this explains why they received significantly lower sentences than Nica and Harrison respectively.
Why were the offenders not sentenced cumulatively for 39 separate counts of manslaughter?
In sentencing the defendants, Mr Justice Sweeney determined that each offence of manslaughter in this case carried a starting point of 12 years’ imprisonment. This raises the question as to why the starting point for 39 counts is not treated as being 468 years (39 x 12 years).
Intuitively one might assume that when sentencing an offender for multiple counts, a court will devise a sentence proportionate to each count in isolation (i.e. in this case, each victim) and then add these up to reach a total sentence. This is known as a ‘cumulative’ approach to sentencing. However, as in most countries, sentencing in England and Wales does not simply take a ‘cumulative’ approach when dealing with multiple counts. This is because a cumulative approach can produce disproportionate sentences whereby individuals convicted of multiple minor offences (for example, 100 offences of shoplifting) are punished more severely than those with a single conviction for a much more serious crime (for example, rape). Instead, the court considers the ‘bigger picture’ of the relevant criminal offending and attempts to impose a sentence which reflects the ‘overall proportionality’.
The way that the overall proportionality approach to sentencing is achieved in practice is through the operation of the principle of ‘totality’. The Sentencing Council has produced a guideline on the totality principle (https://www.sentencingcouncil.org.uk/overarching-guides/crown-court/item/totality/) and this guideline notes: ‘All courts, when sentencing for more than a single offence, should pass a total sentence which reflects all the offending behaviour before it and is just and proportionate’.
Establishing what sentence might be considered to be proportionate in accordance with the totality principle in this case was made difficult by two interrelated and compounding factors: the high seriousness of the type of crime that was being sentenced (manslaughter), and the number of counts. Imposing a sentence of even a couple of years for each individual victim would result in all offenders spending the rest of their lives in prison. Accordingly, bound by the principle of totality, the sentences imposed by Mr Justice Sweeney reflect a ‘bigger picture’ assessment of each offenders’ role, not a tallied-up total of sentences for each count.
Also relevant to the issues engaged in respect of sentencing for multiple counts is the decision of the court to impose custodial sentences which run on a concurrent (at the same time) or consecutive (one after the other) basis. This decision is a matter of discretion for the court and should be exercised in a manner that is considered to be most consistent with adherence to the principle of ‘totality’. The Sentencing Council’s totality guideline provides some guidance on circumstances where concurrent sentences will ordinarily be considered to be more appropriate. These include: a) where the offences arise out of the same incident or facts; or b) where the series of offences are of the same or similar kind. Similarly, consecutive sentences will ordinarily be considered appropriate where: a) the offences arise out of unrelated facts or incidents; b) the offences that are of the same or similar kind but where the overall criminality will not sufficiently be reflected by concurrent sentences; or c) one or more offence(s) qualifies for a statutory minimum sentence and concurrent sentences would improperly undermine that minimum.
In the current case, as all 39 counts of manslaughter arose from the same incident it is consistent with the guidance that the sentences on each count are served concurrently. Whilst this is the established approach in England and Wales, it is inevitable that in the quest to find the ‘right’ overall sentence for the offenders in such a tragic case as this the life of each individual victim will be sorely under-valued. Simply put, no sentence of imprisonment, however long, can equate to the loss of 39 lives, as recognised by Mr Justice Sweeney himself.
The Sentencing Academy has published a new report by Dr Melissa Hamilton (Reader in Law and Criminal Justice, School of Law, University of Surrey) examining the research findings on the effectiveness, particularly in terms of reducing re-offending, of three key sentencing disposals: immediate imprisonment, suspended sentence orders and community orders.
• Reducing re-offending is one of five key sentencing objectives in England and Wales. Courts employ a range of sentences, from discharges to imprisonment. This paper summarises findings from the latest research exploring the relative effectiveness of the principal sanctions for more serious offending: immediate imprisonment, suspended sentence orders and community orders.
• In recent years, researchers have evaluated the relative effectiveness of these different sanctions by comparing the re-offending rates of those who have served a sentence of immediate imprisonment to those who served instead a community order or suspended sentence order.
• Comparing re-offending rates associated with different sanctions is challenging because high risk offenders are more likely to be sentenced to custody. This may explain why short sentences of imprisonment are associated with higher re-offending rates than community orders and suspended sentence orders.
• Recent research by the Ministry of Justice and other agencies compared re-offending rates for immediate imprisonment, suspended sentence orders and community orders, having first controlled for other explanatory factors. Re-offending rates for offenders sentenced to short terms of immediate imprisonment were higher than rates for offenders sentenced to either a community order or a suspended sentence order. Re-offending rates for offenders sentenced to community orders are typically higher than those given suspended sentence orders.
• It is too early to know whether the introduction of supervision upon release for short-term custodial sentences has been effective in reducing re-offending because of additional changes implemented around the same time.
• More research is needed to determine whether the type of sentence is related to re-offending rates by gender and ethnicity and to determine how different sentences meet the criminogenic needs of offenders and how they improve their lives more generally.
• Research should use longer follow-up periods to better evaluate the impact of sentences on long-term desistance.
Most convictions in England and Wales in the Crown Court and the magistrates’ courts arise as a result of the defendant entering a guilty plea. Courts are explicitly required to consider the guilty plea when passing sentence by section 73 of the Sentencing Code (previously section 144 of the Criminal Justice Act 2003). Defendants who plead guilty and who waive their right to a trial are normally entitled to a sentence reduction. All common law jurisdictions offer sentence reductions to defendants who forgo their right to trial and instead plead guilty.
The primary source of guidance in England and Wales regarding the levels of reduction appropriate in cases of a guilty plea is the definitive guideline issued by the Sentencing Council in 2017 to replace an earlier guideline issued in 2007.
Two principal justifications currently exist for offering sentence reductions to defendants who plead guilty. First, a guilty plea saves witnesses from having to attend court to give evidence. This may require multiple appearances and can be time-consuming and stressful. Second, a plea, particularly if entered early in the criminal process, conserves criminal justice system resources. The police, the Crown Prosecution Service and the court system all conserve resources when a trial is avoided. A guilty plea may be considered evidence of remorse on the part of defendants, but this factor is considered elsewhere in the sentencing methodology.
The sentencing guideline recommends a sliding scale of sentence reductions: later guilty pleas attract a more modest sentence reduction. If a plea is indicated at the first stage of the proceedings, a sentence reduction of one-third of the custodial sentence should be awarded. The guideline also specifies that one-third is the maximum reduction appropriate across all cases. A plea entered after the first stage attracts a maximum reduction of one-quarter. The reduction awarded should decrease to a maximum of one-tenth on the first day of trial. The guideline includes a series of exceptions to the recommended reductions. These allow a departure from the recommended maximum reductions. For example, if there were circumstances which significantly affected the defendant’s ability to understand what was alleged against them or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner. In addition, there is a separate regime for young defendants.
A guilty plea may also affect the type of sentence imposed. For example, a court may take a guilty plea into account by reducing a custodial sentence to a community order or by reducing a community order to a fine.
The 2017 guideline modified a previous guideline issued in 2007. The new guideline sought to increase the consistency of plea-based reductions to sentence and to encourage defendants who intended to plead guilty to do so at the first opportunity – rather than later in the criminal process. In the years preceding 2017, a significant proportion (approximately one-third) of trials were avoided close to the trial date for different reasons. A proportion of these so-called ‘cracked trials’ arose as a result of the defendant entering a guilty plea well after the first opportunity. The guideline was not intended to affect the overall rate of guilty pleas entered.
Research conducted prior to the introduction of the latest guideline revealed that courts were broadly following the 2007 guideline’s recommended reductions. Thus, almost all (89%) of defendants who entered an early plea received the one-third reduction recommended by the 2007 guideline. The empirical pattern of reductions diverges to a greater degree for pleas entered at a later stage due to circumstances such as late service of evidence or late compliance with disclosure obligations. No comparable data have been published to determine whether the pattern of sentence reductions has changed as a result of the new guideline.