Judgment: approved by the Court for handing down
(subject to editorial corrections)
Ref:	CARC3407 

Delivered:	28.06.2001

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
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REFERENCE BY HER MAJESTY’S ATTORNEY GENERAL FOR 
NORTHERN IRELAND (NO 3 OF  2000) (GERARD JAMES ROGAN) 
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CARSWELL LCJ

	In this reference, brought under s 36 of the Criminal Justice Act 1988, the Attorney General for Northern Ireland sought leave to refer to the court sentences imposed upon the offender Gerard James Rogan, on the ground that they were unduly lenient.  They were imposed at Downpatrick Crown Court on 29 November 2000 by His Honour Judge Gibson QC, when the offender pleaded guilty to a number of motoring offences.  After hearing counsel present the case on behalf of the Attorney General, we granted leave and proceeded with the reference.
	The offences for which the offender was sentenced were as follows:
•	Count 1 -- causing death by dangerous driving, contrary to Article 9 of the Road Traffic (Northern Ireland) Order 1995;
•	Count 2 -- driving while unfit to drive through drink or drugs, contrary to Article 15(1) of the 1995 Order;
•	Count 3 -- driving with excess alcohol, contrary to Article 16(1)(a) of the 1995 Order;
•	Count 4 -- driving without insurance, contrary to Article 90 of the Road Traffic (Northern Ireland) Order 1981;
•	Count 5 -- driving while disqualified, contrary to Article 167(1)(b) of the 1981 Order.
The judge imposed the following sentences:
•	Dangerous driving causing death – four years’ imprisonment suspended for four years;
•	Driving while unfit – fine of £250;
•	Driving with excess alcohol – fine of £250;
•	Driving without insurance – fine of £250;
•	Driving while disqualified – six months’ imprisonment, concurrent with the four-year sentence, suspended for twelve months.
He also ordered that the offender be disqualified from driving on each count for a period of five years, the periods to run concurrently.
	 On 1 January 2000 at approximately 2.15 am police received a message that an apparently drunk male had been seen getting into a car at Donard Car Park, Newcastle after causing a disturbance outside a night club.  Two police officers in a car, the driver Reserve Constable Rodney Hanna and the observer Constable Paul Thomas Hanna, went to the car park.  There they saw a red Ford Sierra, with a male person in the driving seat and a female in the front passenger seat.  The driver saw the police and drove out on to Bryansford Road.  They followed that car, along with two other officers, the driver Constable Ward and the observer Reserve Constable Samuel Paul Hanna, in a second police car which had come to the scene.  The Ford Sierra was driven at speed through Newcastle and along the road leading to Annalong.  The driver ignored the flashing lights and two-tone horns of the two police vehicles.  He drove at high speed to Ballagh Road, with the car’s lights off, and at a point a little over three miles from Donard Car Park the car struck the rear of another vehicle travelling in the same direction.  It went out of control and struck a stone wall with such force that a large section of the wall was knocked down and collapsed into the adjacent field.  The car mounted the bank, becoming briefly airborne, then struck a gate pillar, spun round and finished up in the road facing towards Newcastle.  It was extensively damaged.  In the latter stages of the collision the passenger, Nicola Joanne Russell, who had not been wearing a seat belt, was thrown from the car and sustained serious head injuries from which she died later that morning.  She was aged sixteen years and was engaged to be married to the offender, whose child she was expecting.
	The driver of the car, the offender Gerard James Rogan, then aged 25 years, was arrested and taken to Newcastle police station.  On breath test it was found that his breath contained 66 microgrammes of alcohol per 100 ml of breath, 31 microgrammes above the prescribed limit.  He was at the time disqualified from driving, a twelve-month ban having been imposed by Belfast Magistrates’ Court on 13 August 1999 for driving with excess alcohol.  He also had a couple of minor driving convictions.
	The observer in the front police car, Constable Paul Thomas Hanna, felt a bump as he came up to the scene of the accident, and was afterwards concerned that the car might have run over Miss Russell as she lay in the road.  He reported his concern and part of the police investigation was directed towards ascertaining whether he might have done so.  If the findings of the vehicle examiner and the pathologist are correct, he did not in fact run over Miss Russell’s body.  The solicitors for the offender wished to check this possibility, however, and entered into correspondence with the Department of the Director of Public Prosecutions.  Through confusion caused by the similarity of the names of the officers, they were given the wrong name of the observer who reported feeling the bump and subsequent correspondence did little to clear up the confusion.  They therefore prepared to mount a defence based upon the possibility that the death of the deceased was not caused by her being thrown from the offender’s car but by her being run over by the police car.  
	When the case came to trial defence counsel asked to see the judge and he and prosecuting counsel saw him in chambers.  According to defence counsel, it was indicated to the judge that the offender wished to contest the case on the issue of the cause of death, and he was asked to adjourn the case in order to allow a report to be obtained from a forensic pathologist, whose preliminary views had only just been obtained.  The judge was also informed that the parents of the deceased girl did not wish the offender to receive a custodial sentence and that her father was prepared to say so in court.  We were informed that the judge indicated to counsel in chambers that if the father of the deceased so stated in open court he would, in the exceptional circumstances of the case, impose a suspended sentence.  Crown counsel told us that he did not acquiesce in this course of action, but informed the judge that if it were taken the Attorney General might wish to consider referring the sentence to this court. 
	The offender decided, after discussion with his counsel, to plead guilty to the charges on the basis that his driving was a causative factor in the accident which led to the death of the deceased, while maintaining that it was not the principal cause of her death.  A plea was entered on this basis and Miss Russell’s father made a plea for leniency in court, which the judge described as follows in his sentencing remarks:
“Mr Russell’s evidence to the court was extremely moving.  He said that he had known the defendant all his life, and added that the defendant had been shattered by this accident, and the death of his fiancé and baby son.  He was deeply remorseful, and would have to live with the consequences of his driving for the rest of his life.  Mr Russell added that he had read the case papers, and was fully aware of all the circumstances of this accident.  His plea for leniency was a particularly strong one, as was his request, and that of his wife, that the defendant should not be sent to prison.”

The judge recognised that, as he stated, “in the normal course of events a sentence of immediate imprisonment would be inevitable”.  In view of the fact that the offender and the deceased were engaged to be married, her father’s plea for leniency and the issue about the cause of death, he decided instead to impose the suspended sentences and fines which we have set out.  He described his course of action as a “wholly exceptional view, which is not to be taken as any sort of precedent”.
	Mr Weatherup QC on behalf of the Attorney General submitted that a suspended sentence was unduly lenient for such dangerous and irresponsible driving, particularly in the case of an offender who was already disqualified from driving.  He pointed to the presence of a number of the aggravating factors stemming from the judgment of Lord Lane CJ in R v Boswell [1984] 3 All ER 353 at 357 and enumerated in Archbold, 2001 ed, para 32-8: the offender’s heavy consumption of alcohol, his prolonged, persistent and deliberate course of very bad driving, his driving whilst disqualified, his previous convictions for motoring offences and his attempt to avoid apprehension by driving off at speed.   He acknowledged the mitigating effect of the plea of guilty, the offender’s remorse and the closeness of his connection with the deceased, but submitted that the balance was still heavily against the offender and that the sentence was incontestably too lenient.
	Mr Barry Macdonald QC for the offender emphasised, in addition to the mitigating factors which we have mentioned, the expectation aroused by the indications given by the judge in chambers, upon which the offender had acted in pleading guilty.  He suggested that to disturb his decision now could be a breach of Article 6 of the European Convention on Human Rights.  Not only should the court show compassion towards the offender in the circumstances of the case, but it would be an injustice to him to send him to prison after all that had taken place.  The judge, who had long experience of criminal trials and sentencing, was in the best position to assess the proper penalty and this court should not interfere with his sentence.  
	At this point we gave the offender’s counsel an opportunity to consider whether he wished to seek to set aside the plea of guilty, on the ground that he had been misled into entering the plea by the judge’s indication of the sentence which he proposed to impose, and offered to adjourn the appeal if he chose to do so.  After consulting with his client, Mr Macdonald informed us that he wished to proceed without attempting to pursue that course.  We therefore continued with the hearing on the merits of the sentence.
	We have had occasion in several recent cases to consider the level of sentencing in serious motoring offences and the degree of public concern about them, reflected in the substantial increase in the maximum sentences which may be imposed in consequence of the enactment of the Road Traffic (Northern Ireland) Order 1995.  In Attorney General’s Reference (No 1 of 1998) (McElwee) [1998] NI 232 we reviewed the previous cases and it is not necessary to repeat what we said in that judgment.  It is sufficient to say that the offender’s driving and his irresponsibility were culpable to a high degree and must be regarded as the very type for which Parliament intended the substantial penalties provided for in the legislation.  Were it not for the mitigating factors, which we must now discuss, the appropriate sentence on a plea of guilty would undoubtedly be in the region of five years’ imprisonment.
We can dispose shortly of the suggestion, which was implied in the argument presented on behalf of the offender, that because of the doubt about the causation of the death of the deceased, he might merit a lower sentence.  It is well settled law that on a charge of dangerous driving causing death the prosecution does not have to establish that the driving of the defendant was the sole cause of the death.  It is enough to prove that it was a substantial cause, in the sense that it was something more than de minimis or a slight and trifling link: R v Hennigan [1971] 3 All ER 133; R v Kimsey [1995] Crim LR 35.  On any version of the facts the offender’s driving must be regarded as a substantial cause of Miss Russell’s death.  We cannot suppose that he could have reasonably expected an acquittal, whatever doubts may have been raised about the cause of the fatal injuries of the deceased.  That factor could only have gone towards mitigation to a slight degree, as the sentence should reflect the quality of his dangerous and irresponsible acts.  It would have been wholly wrong to suggest that because of it the judge could have been asked to consider suspending a clearly justified sentence of imprisonment, which would have savoured of something approaching plea bargaining. 
	Mr Macdonald relied strongly on the expectation raised in the mind of the offender by the indication given by the judge that if he pleaded guilty he would receive only a suspended sentence.  He submitted that it would be unjust to increase the penalty after the offender had accepted the implied assurance contained in that indication and surrendered his chance of an acquittal.  We have already dismissed that possibility, but even if it had been a real one we do not consider that in the circumstances of this case the judge’s indication can govern what this court regards as the proper disposition of the case.  It is true that in Attorney General’s Reference (Nos 80 and 81 of 1999) [2000] Crim LR 398 the Court of Appeal considered it wrong to reopen and increase a sentence where the judge had given a clear indication in chambers of his proposed sentence (which the court regarded as unduly lenient) and repeated it in open court, while prosecuting counsel had acquiesced unreservedly in the line taken by the judge and used it to prevail upon the offender to give evidence for the Crown.  That case was, however, decided very much on its own facts, and the generally applicable principle is that a judge’s indication is no more than a factor to which the Court of Appeal may have regard in exercising its discretion on a reference: see Attorney General’s Reference (No 40 of 1996) (Robinson) [1997] 1 Cr App R (S) 357.  In Attorney General’s Reference (No 17 of 1998) (Stokes) [1999] Crim LR 92 Rose LJ stated it as follows:
“There is, as it seems to us, no warrant either in the terms of the 1988 Criminal Justice Act or in principle why this Court, on an Attorney-General’s Reference, must be bound by an indication as to leniency given by the sentencing judge, even where that is given prior to the entering of a plea of guilty … if it were the position that a legitimate expectation of a lenient sentence prior to a plea of guilty, was a sufficient reason for this Court not to exercise its powers under s. 36 of the Criminal Justice Act 1988, the whole purpose of those powers would, as it seems to us, be set at naught.  Anyone who pleads guilty to an offence which is, by the terms of that Act, susceptible to an Attorney-General’s Reference must, as it seems to us, be taken to do so in recognition of the risk that, if a lenient sentence is passed, that may give rise to an Attorney-General’s Reference to this Court, on which this Court may increase the sentence passed by the sentencing judge.”

	We may add that we are aware of no authority for the proposition advanced by Mr Macdonald that to review the sentence would constitute a breach of Article 6 of the Convention, nor was he unable to cite any to us.  We see no warrant in principle for such a conclusion.  Crown counsel had properly made the judge and defence counsel aware that he did not acquiesce in the course proposed by the judge and that a reference was a possibility.  The offender decided to plead guilty in that knowledge and cannot complain that he was deceived into doing so.  In any event, we do not consider that he forfeited any real advantage in pleading guilty on the facts of the case.
	The judge was plainly influenced to a considerable degree by the representations of Miss Russell’s parents, which do them considerable credit.  It is necessary for sentencers to exercise caution in the way in which they allow such representations, whether in favour of or adverse to the accused, to affect their judgment.  The principle which they should follow was articulated by Judge J, giving the judgment of the court, in R v Nunn [1996] 2 Cr App R (S) 136 at 140:
“… the opinions of the victim, or the surviving members of the family, about the appropriate level of sentence do not provide any sound basis for reassessing a sentence.  If the victim feels utterly merciful towards the criminal, and some do, the crime has still been committed and must be punished as it deserves.  If the victim is obsessed with vengeance, which can in reality only be assuaged by a very long sentence, as also happens, the punishment cannot be made longer by the court than otherwise would be appropriate.  Otherwise cases with identical features would be dealt with in widely differing ways leading to improper and unfair disparity …”

There is an exception, which is not material to the present case, where the imposition of a condign sentence on the offender may be actively detrimental to the interests of the victim.  
In Attorney General’s Reference (No 66 of 1996) (Spencer) [1998] 1 Cr App R (S) 16 Lord Bingham CJ stressed the need for courts to judge cases objectively and dispassionately, taking account of understandable outrage on the part of some victims and their families and expressions of forgiveness on the part of others.  They must not be overborne or intimidated by the former into imposing sentences which they consider are unjust.  Equally, they should not allow their admiration for generosity of spirit shown in the latter cases to lead them to give less than proper weight to the public interest in ensuring that a sufficient penalty is imposed upon those who commit serious crimes.
	The Court of Appeal set out three principles applying generally to the exercise of the power to vary unduly lenient sentences in Attorney General’s Reference (No 4 of 1989) [1990] 1 WLR 41 at 45-6:
“The first thing to be observed is that it is implicit in the section that this court may only increase sentences which it concludes were unduly lenient.  It cannot, we are confident, have been the intention of Parliament to subject defendants to the risk of having their sentences increased – with all the anxiety that this naturally gives rise to – merely because in the opinion of this court the sentence was less than this court would have imposed.  A sentence is unduly lenient, we would hold, were it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate.  In that connection regard must of course be had to reported cases, and in particular to the guidance given by this court from time to time in the so-called guideline cases.  However it must always be remembered that sentencing is an art rather than a science; that the trial judge is particularly well placed to assess the weight to be given to various competing considerations; and that leniency is not in itself a vice.  That mercy should season justice is a proposition as soundly based on law as it is in literature.

The second thing to be observed about the section is that, even where it considers that the sentence was unduly lenient, this court has a discretion as to whether to exercise its powers.  Without attempting an exhaustive definition of the circumstances in which this court might refuse to increase an unduly lenient sentence, we mention one obvious instance: where in the light of events since the trial it appears either that the sentence can be justified or that to increase it would be unfair to the offender or detrimental to others for whose well-being the court ought to be concerned.

Finally, we point to the fact that, where this court grants leave for a reference, its powers are not confined to increasing sentence.”

In another case decided a short time later, Attorney General’s Reference (No 5 of 1989) (1990) 90 Cr App R 358 the court indicated that it would not interfere unless the sentencing judge had made some error in principle which would result in public confidence being damaged if the sentence were not altered.  Applying these principles, we are left in no doubt that the sentence in the present case was unduly lenient and that it is necessary for us to increase it.  The offender’s driving was highly dangerous to the public and irresponsible.  His consumption of alcohol was well over the prescribed limit for driving a motor vehicle.  He was driving the car although he had been disqualified a few months earlier.  He was attempting to escape apprehension by driving off at high speed.  
	We take account of the mitigating factors, in so far as we can appropriately do so.  We do not disregard the expressed wishes of the family of the deceased, though for the reasons which we have set out we do not consider that they can be allowed to prevail.  We have regard to the plea of guilty – even late in the day – and the offender’s feelings of remorse.  We take into account the indication given by the judge of his intention.  We recognise the effect of the double jeopardy factor and the fact that the offender has been at liberty since the trial.  Placing all these matters in the scale, we are satisfied that the sentence was unduly lenient and that the case called for an immediate custodial disposition.  As Lord Taylor CJ said in Attorney General’s Reference (Nos 14 and 24 of 1993) (1993) 15 Cr App R (S) 640 at 643:
“ .. a prison sentence is required to punish the offender, to deter others from drinking and driving, and to reflect the public’s abhorrence of deaths being caused by drivers with excess alcohol.” 
We consider that an immediate custodial sentence of two years’ imprisonment is appropriate in all the circumstances of the case, and we propose to pass that sentence in place of the suspended sentence imposed by the judge on the charge of dangerous driving causing death.  In place of the fines imposed on counts 2, 3 and 4 we shall substitute a sentence of three months’ imprisonment on each count, concurrent with each other and with the sentence on count 1.  We shall remove the suspension on the sentence on count 5, that of driving while disqualified, and make it a sentence of six months’ imprisonment, concurrent with the other terms of imprisonment.  We shall leave the disqualification undisturbed.  The effective sentence of the court will accordingly be one of two years’ imprisonment plus five years’ disqualification.
	 We do not wish to leave this reference without making some observations about the practice of counsel seeing the judge in chambers in order to discuss issues in the case about to come on for hearing.  It is a basic principle of cardinal importance that justice is done in public, for all to see and hear, and all communications between counsel and judge should wherever possible be made in open court.  On the other hand, freedom of access for counsel to the judge has always been recognised as an important part of the practice prevailing both in England and Northern Ireland: see, in England, R v Turner [1970] 2 QB 321 and, in Northern Ireland, R v McNeill [1993] NI 43 at 48, per Hutton LCJ.  To this end it was laid down by the English Court of Appeal in R v Turner  that discussions should take place in chambers in criminal cases only where counsel has to communicate or discuss something which he cannot in his client’s interests mention in open court, eg that he is suffering from a serious health condition of which he is and should remain ignorant.  It is legitimate to discuss with the judge whether the prosecution should accept a plea of guilty to a lesser charge.  
	In  R v Turner Lord Parker CJ expressed very positive views on the limits of discussion which the judge should have on the sentence which he has in mind to impose.  They were encapsulated in Archbold, 2001 ed, para 4-79 in proposition 4:
“The judge should, subject to one exception, never indicate the sentence which he is minded to impose.  The exception 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.  Where any such discussion on sentence has taken place, counsel for the defence should disclose it to the accused and inform him of what took place.”

We observe that the direction contained in the last sentence is at variance with that contained in paragraph 16.26 of the Code of Conduct for the Bar of Northern Ireland, which enjoins counsel not to give their clients to understand that such discussions have taken place or inform them of their contents.  This instruction may be appropriate where discussion about sentences frequently takes place, but less so if it is restricted in the way which we now propound.
It is also the regular practice in England that such discussions in chambers should where possible be recorded by a shorthand writer, and where this is not feasible a note should be made by the judge or sent to him for agreement if made by counsel.
	The practice in our courts has until now been one of rather more ready access by counsel to the judge and freer discussion about sentence.  This seems to have been on the increase in recent years.  It appears to us that requests by counsel to see judges have become materially more frequent than they used to be and that in some courts it has come to be regarded as a standard and routine practice in virtually every case.  We would draw attention to the views which we expressed in Re McFarland’s Application (2000, unreported):
“We would discourage judges and magistrates from discussing with counsel in chambers matters relating to issues in the case at hearing.  We would also urge restraint in discussions on sentence …  It is our impression that counsel are a great deal too ready to ask to see a judge to inquire about his views on possible sentence, and we take the view the judges should exercise a considerable degree of reticence about giving an indication of the penalties which they have in mind.”

	We consider that the primacy of the principle of open justice has been in danger of erosion in consequence of the extent to which discussions in chambers have been held in recent years.  It is of some importance that it should be reaffirmed and the practice reviewed accordingly, not least because of the emphasis in the jurisprudence of the European Court of Human Rights on the principle that as part of a fair trial all proceedings in criminal trials should in general take place in public. 
	We would therefore propound for the guidance of sentencers in courts at all levels the following rules of practice governing discussions in chambers (references to judges are intended to include magistrates and references to counsel to include solicitors acting as advocates):
1.	There should be freedom of access for counsel to judges, but that does not mean freedom to discuss matters which can perfectly well be discussed in open court.  The basic principle is that access to the judge is to enable matters to be discussed which cannot be referred to in court without creating some difficulty.
2.	Inquiries about possible sentences should not be entertained by judges unless they are genuinely necessary to permit counsel to advise their clients on their course of action, eg if considering pleading guilty to a lesser charge.
3.	Where they think it proper to give an indication of the type of sentence which they propose to impose, judges should be cautious about how specific they are.  It is rarely advisable to do more than state whether the sentence will take a particular form, whatever the plea, or indicate in general terms how seriously the court views the case.
4.	A full and where possible verbatim note should be made of all discussions in chambers, preferably by a shorthand writer.  Where this is not practicable, the judge should take a full note or ask counsel to take a note and furnish it for agreement. 
We appreciate that this guidance represents a shift in practice to a more structured and less open style of discussion than that which has hitherto been the norm, but we are satisfied that it is necessary to move in that direction.  
	We shall quash the sentences imposed on the offender and substitute those which we have set out.  We direct that he surrender to custody within 48 hours.

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
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REFERENCE BY HER MAJESTY’S ATTORNEY GENERAL FOR 
NORTHERN IRELAND (NO 3 OF  2000) (GERARD JAMES ROGAN) 
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JUDGMENT

OF

CARSWELL LCJ

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