Neutral Citation No:  NICA 31
Ex tempore Judgment: approved by the Court for handing down
(subject to editorial corrections)*
DEENY LJ (delivering the judgment of the court)
"9: Procedural Requirements for Custodial Sentences
(1) In forming any such opinion as is mentioned in Article 5(2) or 7(2), a court shall take into account all such information as is available to it about the circumstances of the offence or (as the case may be) of the offence and the offence or offences associated with it (including any aggravating or mitigating factors).
(2) Subject to paragraph (3), a court shall obtain and consider a pre-sentence report before forming any such opinion as is mentioned in Article 5(2), 7(2), 13(1)(b) or 14(1)(b)(i)."
"Paragraph (2) does not apply if, in the circumstances of the case, the court is of the opinion that it is unnecessary to obtain a pre-sentence report; and where the court does not obtain and consider a pre-sentence report, it shall state in open court that it is of that opinion and what the circumstances are."
"Section 19(1) provides that where an offender is convicted of a subsequent offence … and the offence was committed during the operational period of his suspended sentence … then, unless the sentence … has already taken effect, the court shall consider his case and deal with him by one of the following methods - (the four methods are then set out). This shows that it is the court's duty where an offender is convicted of a subsequent offence to operate the suspended sentence procedure and even whether method (d) of making no order is adopted that fact is to be recorded: Section 19(6). Furthermore, it is the court's duty to adopt method (a) by ordering the suspended sentence to take effect 'unless the court is of opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was passed including the facts of the subsequent offence and where it is of that opinion the court shall state its reasons."
"We consider that merely by using the phrase 'in view of the all circumstances' the Magistrates' Court did not comply with its duty to state its reasons for not ordering the suspended sentence to take effect: that this is so appears clearly from the wording of Section 19(1). On the other hand we consider the provisions should directory and not imperative: it could not be intended that an accused person who benefits from the decision not to adopt to course (a) is deprived of that benefit by the court's failure to state the reasons for its action. On the other hand mandamus may be available to compel an inferior court to state its reasons and thereafter if the reasons are by any chance incapable of supporting the court's decision, that decision might conceivably be impugned."
"No custodial sentence shall be invalidated by the failure of a court to obtain and consider a pre-sentence report before forming an opinion referred to in paragraph (2) but any court on an appeal against such a sentence—
(a) shall, subject to paragraph (6), obtain a pre-sentence report if none was obtained by the court below; and
(b) shall consider any such report obtained by it or by that court.
(6) Paragraph (5) (a) does not apply if the court is of the opinion—
(a) that the court below was justified in forming an opinion that it was unnecessary to obtain a pre-sentence report; or
(b) that, although the court below was not justified in forming that opinion, in the circumstances of the case at the time it is before the court, it is unnecessary to obtain a pre-sentence report."