18.12.2020

Bailey & Ors, R. v (Rev 1) [2020] EWCA Crim 1719

Green LJ, Julian Knowles J, HH Judge Blair QC (Recorder of Bristol)

In R. v Bailey & Ors, the Court of Appeal (Criminal Division) considered the articulation of the principle of totality in sentencing remarks.

In the Each Appellant has been granted leave to appeal against sentence. A ground of appeal common to a number of appeals concerns totality. This particular ground raises a point of interest from a procedural perspective. It arose from the fact that in the lengthy sentencing remarks about the position of each defendant, no specific reference to totality was made. The judge did however make a brief and general reference towards the end of the sentencing remarks, to the effect that she had taken totality into account in relation to each defendant. [2]

When seeking permission to appeal, the Appellants argued that this was an improper and inadequate approach. There was a duty to spell out how totality applied in each case. It was not enough to make a single, isolated, fleeting reference to totality. [3]

First, whether a judge has applied totality is a question of substance and not form. The fact therefore that the judge made a single generalised statement towards the end of her sentencing remarks to the effect that she had considered totality is perfectly adequate. Sentencing remarks are not intended to amount to a test of drafting; they are intended to be succinct explanations of the facts and matters that have affected the judge’s judgment as to the sentence to be imposed. [34]

Second, in relation to totality, the Totality Guideline makes plain that the purpose behind a judge taking totality into account is to ensure that the final sentence is just and proportionate. During argument there were suggestions that a judge should expressly use the expression “just and proportionate”. We disagree. There is no magic in words. What matters is whether the final sentence is just and proportionate, taking into account all the relevant facts and matters. [35]

Third, a number of advocates suggested that the application of the totality principle was designed to lead to the judge applying an appropriate reduction to the sentence. Again, we disagree. Totality is designed to ensure that the sentencing exercise is not formulaic. [36]

[Full judgment here]

17.12.2020

Further measures to monitor terrorist offenders announced

The monitoring of convicted terrorists and others who pose a terror risk “will be strengthened” under plans laid out today by the Government. This is following a review by Jonathan Hall QC, the Independent Reviewer of Terrorism Legislation.

A number of recommendations made following the review will be implemented. These include:

  • the introduction of new legislation to give police powers to search terrorism offenders on licence
  • the doubling of the number of specialist probation officers tackling terrorism
  • improving intelligence sharing between police, prisons, probation and the security services

[Full GOV.UK press release here]

16.12.2020

Attorney General’s Reference: Long & Ors v R. [2020] EWCA Crim 1729

The President of the Queen’s Bench Division (Dame Victoria Sharp), Holroyde LJ and Wiliam Davis J

In Long & Ors, the Court of Appeal (Criminal Division) considered three applications.

Firstly, two defendants, Bowers and Cole, apply for leave to appeal against their convictions of the offence of manslaughter. Secondly, Her Majesty’s Attorney General’s application for leave to refer the sentences on all three offenders as being unduly lenient, and finally, all three offenders (Long, Bowers and Cole) applied for leave to appeal against their respective sentences.

In her initial remarks, the Attorney General rehearsed some of the facts and said that the sentences have caused widespread public concern… [57]

… Leave to refer should only be granted to the Attorney General where the sentence passed is outside the range which a judge could reasonably consider appropriate, or is based on an error of principle, such that public confidence in the administration of justice would be damaged if the sentencing was not corrected. References to “widespread public concern” do not meet that test… [61]

As to the length of the custodial terms, we note a striking feature of the submissions. When applications are made by the Attorney General for leave to refer to this court sentences which are said to be unduly lenient, it is frequently on the basis that the judge fell into error by failing to follow a relevant guideline. In this case, however, the argument advanced by the Attorney is that the sentence of Long, and therefore the sentences on Bowers and Cole, were unduly lenient because the judge erred in failing to depart from the relevant guideline. [83]

That is, to say the least, an unusual submission. It involves the proposition that in the circumstances of this case, a sentence within the guideline offence range was not within the range properly open to the judge, who was instead required to pass a sentence outside that range. We think it regrettable that, in advancing that submission, the structure and ambit of the guideline were not addressed. Nor was any sufficient explanation given why it is contended that the judge was not merely entitled to depart from the guideline but positively required to do so. [84]

The court refused the Attorney General’s applications for leave to refer and held that sentences for manslaughter passed on Long, Bowers and Cole remain in place.

The court granted Bowers and Cole leave to appeal against sentence and allowed their appeals to very limited extents and refused Long’s application for leave to appeal against sentence. The applications for leave to appeal against conviction, made by Bowers and Cole only, were refused. [102]

[Full judgment available here]

11.12.2020

Attorney General’s Reference: McCann & Ors, R v [2020] EWCA Crim 1676

The Lord Chief Justice of England and Wales (Lord Burnett), The President of Queen’s Bench Division (Dame Victoria Sharp), The Vice President of the Court of Appeal (Criminal Division) (Fulford LJ) and Choudry J.

In McCann & Ors the Court of Appeal (Criminal Division) considered Her Majesty’s Solicitor General’s application for leave to refer the sentences of two unconnected prolific sexual offenders (McCann and Sinaga) to the Court of Appeal on the grounds that their multiple life sentences with minimum terms of 30 years were unduly lenient.

…He submits that the scale and nature of the offending calls for whole life tariffs to be attached to the life sentences. We have been unable to accept that submission but conclude that the minimum terms should be raised to 40 years. The third case before us is an application for leave to appeal by a doctor convicted of multiple sexual offences against his patients. He was sentenced to life imprisonment with a minimum term of 15 years. We give leave to appeal but dismiss the appeal. [1]

…The offending in the cases of McCann and Sinaga, very serious indeed though it is does not, in our judgment, call for either to receive a whole life tariff. This is not to minimise the seriousness of their offending but instead to ensure that the most severe sentence in our jurisdiction is reserved, save exceptionally, either for the most serious cases involving loss of life, or when a substantive plan to murder of similar seriousness is interrupted close to fulfilment. [90]

…These two cases are paradigms of the circumstances which justify a departure from the usual position of fixing the requisite custodial period at a half of the determinate term… In these circumstances we grant leave to refer these sentences, and vary the life sentences in each case, by substituting minimum terms for McCann and Sinaga of 40 years. The multiple life sentences remain and whether either is in fact ever released will depend upon the assessment of risk by the Parole Board at the end of the minimum terms. [95]

[Full judgment available here]

10.12.2020

Knife and Offensive Weapon Sentencing Statistics: April to June 2020 have now been released.

The publication presents key statistics describing the trends in the number of offenders receiving cautions and convictions for; possession of an article with a blade or point; possession of an offensive weapon; or threatening with either type of weapon in England and Wales.

Sentencing

  • The proportion of offenders receiving immediate custodial sentences has remained stable at around 38% for the last three years.

Sentencing under section 28 of the Criminal Justice and Courts Act (CJCA) 2015

  • The average custodial sentence received by offenders sentenced under section 28 of the Criminal Justice and Courts Act 2015 was 7.9 months in the year ending June 2020.
  • Since the year ending June 2017 (the first full year after the legislation came into force) the average custodial sentence length has increased from 7.2 to 7.9 months for adults and 6.1 to 7.6 months for 16 and 17 year olds.

[Full publication available here]

09.12.2020

New sentencing guidelines for firearms offences comes into force on 1 January 2021

Eight new guidelines for sentencing offenders convicted of firearms offences have been published by the Sentencing Council and will come into force on 1 January 2021.

The eight new guidelines cover offences under the Firearms Act 1968:

  • Possession, purchase or acquisition of a prohibited weapon or ammunition
  • Possession, purchase or acquisition of a firearm/ammunition/shotgun without a certificate
  • Possession of a firearm or ammunition by person with previous convictions prohibited from possessing a firearm or ammunition
  • Carrying a firearm in a public place
  • Possession of firearm with intent to endanger life
  • Possession of firearm or imitation firearm with intent to cause fear of violence
  • Use of firearm or imitation firearm to resist arrest/possession of firearm or imitation firearm while committing a Schedule 1 offence/carrying firearm or imitation firearm with criminal intent
  • Manufacture/sell or transfer/possess for sale or transfer/purchase or acquire for sale or transfer prohibited weapon or ammunition

These guidelines also draw sentencers’ attention to evidence of sentencing disparities for some firearms offences based on ethnicity.

[Full press release here]

01.12.2020

The Sentencing Code comes into force

The Sentencing Code comes into effect on 1 December 2020 in England and Wales, consolidating existing sentencing procedure law into a single Act.

[The Sentencing Act 2020 is available here]