COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT DONCASTER
HIS HONOUR JUDGE JACK
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JUDGE
DEPUTY CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE TREACY
MR JUSTICE WAKERLEY
MR JUSTICE CALVERT-SMITH
|- v -
Mr Martin Sharpe for the Appellant
Crown Copyright ©
Lord Woolf, Chief Justice:
Grounds of Appeal
Proceedings on 19th April
"Mr Goodyear is very eager not to have a trial, and is very eager to avoid, if it were possible, the possibility of a custodial sentence, and on my behalf I wonder whether your Honour would be in a position to give any indication?"
The judge responded:
"Well, certainly not at this stage, because I haven't considered the question of sentence at this point … and in any event I don't think I would be in a position to give an indication. … I am sorry for that."
"… I will make submissions … that the custody threshold would not be passed, and I simply wondered whether your Honour is in a position to assist in that regard, both I anticipate on behalf of myself and my learned friend … [counsel for Green]."
The judge replied:
"… as things stand and on the prosecution case at it is put, it seems to me that I cannot assist, although I can obviously say that your client's good character would stand him in good stead, and a guilty plea would stand him in good stead. But it does seem to me at the moment the issue as to the value of the benefits is significant."
"There is no suggestion by the Crown that the defendants got anything they wouldn't otherwise have got. This is simply an allegation that they are keeping him sweet, as it were … I hope I don't oversimplify matters in putting it in that way, but that is the way in which I propose to open it to the jury."
Counsel confirmed the judge's understanding of what he had just said, that it was not suggested that the defendants had obtained additional work as a result of providing benefits for Mr Stones. He went on that there was no evidence to suggest that these defendants had benefited over and above any other contractors.
"Yes, in those circumstances I can revise what I said earlier. I do take the view, by contra distinction to the case of Mr Stones, who was a public servant and may be in a rather different position, but I do take the view that this is not a custody case."
This was the critical sentence indication.
Proceedings on 24th June
"… that this is a case in which a prison sentence is justified. I indicated on an earlier occasion that I did not think that this was a custody case. I hoped that that was not misunderstood. I certainly did not intend to indicate that this was case where the custody threshold had not been crossed. I was intending to indicate, for the benefit of the defendants, that they need not worry about having to serve an immediate prison sentence. I take the view that this is a case in which there are, however, exceptional circumstances, where the prison sentence which I have to pass can be suspended."
Advance Indication of Sentence
"The judge should, subject to the one exception referred to hereafter, never indicate the sentence which he is minded to impose. A statement that on a plea of guilty he would impose one sentence but that on a conviction following a plea of not guilty he would impose a severer sentence is one which should never be made. This could be taken to be undue pressure on the accused, thus depriving him of that complete freedom of choice which is essential."
The court referred to occasions when the judge would tell counsel that on the basis of the information before him, the sentence which would follow a guilty plea would be non-custodial, without saying anything about what would happen if the case proceeded to trial and conviction.
"Even so, the accused may well get the impression that the judge is intimating that in that event a severer sentence, maybe a custodial sentence would result, so that again he may feel under pressure. This accordingly must also not be done."
The only exception to the rule that an indication of sentence should not be given is:
"… that it should be permissible for a judge to say, if it be the case, that whatever happens, whether the accused pleads guilty or not guilty, the sentence will or will not take a particular form, e.g. a probation order or a fine, or a custodial sentence."
"A significant number of those who now plead guilty at the last minute would be more ready to declare their hand at an earlier stage if they were given a reliable early indication of the maximum sentence that they would face if found guilty."
"At the request of defence counsel on instructions from the defendant, judges should be able to indicate the highest sentence that they would impose at that point on the basis of the facts as put to them. … We envisage that the procedure which we recommend would be initiated solely by, and for the benefit of, defendants who wish to exercise a right to be told the consequences of a decision which is theirs alone."
The Commission implied that the single question which the judge would have a discretion to answer would be: "What would be the maximum sentence if my client were to plead guilty at this stage?".
"That comparison is precisely what a defendant considering admitting his guilt wants to know. He knows and will in any event, be advised by his lawyer that a plea of guilty can attract a lesser sentence and broadly what the possible outcomes are, depending on his plea. So what possible additional pressure, unacceptable or otherwise, can there be in the judge, whom he has requested to tell him where he stands, indicating more precisely the alternatives?"
(a) he should not plead guilty unless he is guilty;
(b) any sentence indication given by the judge remains subject to the entitlement of the Attorney General (where it arises) to refer an unduly lenient sentence to the Court of Appeal;
(c) any indication given by the judge reflects the situation at the time when it is given, and that if a "guilty plea" is not tendered in the light of that indication the indication ceases to have effect;
(d) any indication which may be given relates only to the matters about which an indication is sought. Thus, certain steps, like confiscation proceedings, follow automatically, and the judge cannot dispense with them, nor, by giving an indication of sentence, create an expectation that they will be dispensed with.
(a) If there is no final agreement about the plea to the indictment, or the basis of plea, and the defence nevertheless proceeds to seek an indication, which the judge appears minded to give, prosecuting counsel should remind him of this guidance, that normally speaking an indication of sentence should not be given until the basis of the plea has been agreed, or the judge has concluded that he can properly deal with the case without the need for a Newton hearing.
(b) If an indication is sought, the prosecution should normally enquire whether the judge is in possession of or has had access to all the evidence relied on by the prosecution, including any personal impact statement from the victim of the crime, as well as any information of relevant previous convictions recorded against the defendant.
(c) If the process has been properly followed, it should not normally be necessary for counsel for the prosecution, before the judge gives any indication, to do more than, first, draw the judge's attention to any minimum or mandatory statutory sentencing requirements, and where he would be expected to offer the judge assistance with relevant guideline cases, or the views of the Sentencing Guidelines Council, to invite the judge to allow him to do so, and second, where it applies, to remind the judge that the position of the Attorney General to refer any eventual sentencing decision as unduly lenient is not affected.
(d) In any event, counsel should not say anything which may create the impression that the sentence indication has the support or approval of the Crown.
S 36 of the Criminal Justice Act 1988
Appeal against sentence
The decision in this case