England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		26 October 2005

1. MR JUSTICE PENRY-DAVEY: On 1st September 2005 in the Southampton Magistrates' Court the claimant pleaded guilty to an offence of harassment contrary to section 2 of the Protection from Harassment Act 1997. On the following day he was sentenced to 23 weeks, or 161 days, imprisonment. The maximum sentence that could have been imposed for the summary only offence was 26 weeks or 182 days. A notice of appeal was given immediately following sentence, the ground being that insufficient credit had been given in accordance with the guidelines for the plea of guilty. That was on the basis that a one-third reduction under the guidelines from the maximum sentence could have been imposed of 26 weeks or 182 days, which would have reduced the sentence to four months or 121 days.
2. The matter came before HHJ Burford and Magistrates on 23rd September at a time when the claimant had been in custody for some 30 days. The transcript of the proceedings makes clear that the court proceeded with a good deal of care. The facts of the harassment offence were set out with the claimant's antecedents including his conviction of a serious sexual offence for which he had previously served a sentence of six years' imprisonment, and in respect of that, and indeed again, the judge enquired whether there had been a social enquiry report. The timings were set out, the length of time which he had spent in custody, and the judge said this at page 7 of the transcript in relation to the report:

"All right, it is not just with regard to the appeal that we regard on that the pre sentence report is absolutely essential. The defendant has been convicted of, what must have been a very serious offence if he received six years for it. It is an offence that is not wholly dissimilar to the current matters although there is no allegation of indecent assault in the current matters and we first of all as I have already said to Miss Goodall, want to know the facts of the previous matter and we want the benefit of a pre sentence essentially to assist us as to the future danger of this defendant to woman. That is what we want the pre sentence report for and we would be shirking our duty in my view if we were to dispose of this appeal without the benefit of a pre sentence report."

3. Then Miss Carter pointed out again the maximum sentence available and the judge said:

"Oh indeed. We are not going to increase the sentence of imprisonment beyond the six months because we can't but pre sentence reports deal with constructive suggestions further in to the future and we don't want this appellant necessarily, I am not saying we have pre judged it at all, but we don't want without further report this appellant to be released from his current sentence with no further assistance from any probation or other services. That is what we have got in mind you see."

4. There were then further submissions but the judge continued to maintain his wish, and indeed the wish of the court, for the pre-sentence report. The nature of the problem was set out when the probation officer indicated that six weeks would be required for a report and the judge pointed out the difficulty that that would cause. Despite a further request to consider the position, the probation officer indicated that a full report could not be available in less than six weeks.
5. It was following that and further submissions from Miss Carter on behalf of the claimant that the judge rose in order to give the opportunity for the claimant to be consulted. When the parties returned to court, the application was made for leave to abandon the appeal. It has been pointed out that the six weeks would take matters right up almost to the fence when the sentence would have expired in any event. The court then retired to consider the matter and came back to indicate its decision.
6. The judge, at page 14 of the transcript, pointed out that the claimant had not given three days' notice in writing for the date of the hearing of his desire to abandon the appeal and therefore the law was that the court had discretion to allow the abandonment of the appeal; and he went on in these words:

"The hearing having commenced the case of Manchester Crown Court, ex party, Welby in the divisional court ... says:

'Only in exceptional circumstances would the judge be entitled to grant leave to abandon the appeal where the application is made after the hearing has commenced.'"

7. He went on:

"In our unanimous view those exceptional circumstances did not exist allowing us to grant leave to abandon the appeal. Quite apart from that we take the view that so overriding and so important is the need for a pre sentence report in this case that the appeal should not be abandoned. We want a pre sentence report. It is most unfortunate and I say this in public that the resources of the probation service are so constrained that they can't provide a report in the case of relatively short prison sentence like this, sooner than six weeks. That is a matter of funding and resources that the Government should give urgent consideration to. But we cannot compel the probation service to do it in under six weeks if that is the minimum period they say. The consequence of that will be that Mr Munden will have served 72 days in custody by 4th November which is six weeks from today, equivalent to a total sentence of 144 days compared to the maximum sentence that could have been imposed of 182 days and compared with the actual sentence imposed of 161 days.

"We also bear in mind that he pleaded guilty at the first opportunity and in normal circumstances would have been entitled to a reduction of one third over the maximum possible sentence of 182 days which would have been a sentence of 120 days allowing his release in 60 and we are conscious of the fact that because the probation service require six weeks rather than the normal four the period that he will have spent in custody by 4th November will be some twelve days longer than the period he would in the normal course of events have been entitled to be released. But nevertheless I repeat we regard the need for a pre sentence report in this case as such overriding importance that we refuse leave to abandon the appeal."

8. The court went on to adjourn the matter until 4th November.
9. It is that decision which is challenged in these proceedings, permission having been granted by the single judge on 18th October. Rule 11 of the Crown Court Rules 1982 provides that an appellant may abandon his appeal before the date of the hearing by giving notice not later than the third day before the date fixed. In the case cited by the judge, that is R v Manchester Crown Court, Ex parte Welby and Another 1981, 73 Criminal Appeal Reports page 248, this court considered the situation that arose where an appellant failed to comply with the requirements of the rules. It was held that if an application to abandon was made before the hearing of the appeal had begun, only in the most exceptional circumstances would a judge be entitled to refuse to grant leave; whereas once the hearing had commenced, it would only be in exceptional circumstances that an application to abandon the appeal would be granted. In this case, it is accepted that the application to abandon was made after the hearing had commenced and indeed it is apparent from the transcript that it was substantially into the hearing that the matter was finally determined. But it is contended that there were exceptional circumstances and that the decision of the court to refuse leave to abandon the appeal was unreasonable.
10. It is submitted that a tribunal properly directing itself should have allowed the appeal to be abandoned for the following reasons: first, the judge recognised that the claimant was entitled to a discount for his guilty plea, which on the basis of the guidelines would have been between one fifth and a third of the sentence imposed. Thus even on the basis that this offence justified the maximum term of imprisonment, which is not conceded, the claimant should have received a sentence of between 122 days with a one-third discount and 146 days with a one-fifth discount. Thus a six week adjournment for the preparation of a pre-sentence report would have the consequence that the claimant would remain in custody for a further 42 days, making a total of 72 days for the equivalent of a sentence of 144 days.
11. Following from that, by the time the appeal was heard the claimant would have served the maximum appropriate for the offence. It is also submitted that a pre-sentence report would provide no useful purpose, because, by the time the court was able to consider it, the claimant would already have served the maximum appropriate and any further sentence would constitute, in reality, his being sentenced twice for the same offence. It is accepted that the necessity for such a long adjournment was not the fault of the court but it is contended that the fact of that long adjournment resulted in the circumstances of the case being exceptional.
12. That submission is resisted by the Crown, who point out first the obligation on the court to obtain a pre-sentence report, unless the court is of the opinion that it is unnecessary. Similarly on appeal, if no pre- sentence report has been obtained in the court below there is an obligation to obtain such a report, unless the court below is justified in not so obtaining a report or the court is of the view that such a report is unnecessary. It is clear from the transcript that the court not only considered the matter with great care but was unanimously of the view that a pre- sentence report was necessary. That can only have been on the basis that one matter that was within the consideration of the court was the substitution for the custodial sentence of a rehabilitation order. It was further acknowledged by the court that it was unfortunate that there was inevitably a delay, but it was pointed out on behalf of the Crown that that did not alter the fact that the report was still properly required.
13. I have considered with some care the course that events took in this case and I have concluded that in the circumstances set out, the conclusion to which the court came was taken on the basis of relevant factors, and that the court was entitled to conclude that the circumstances were not exceptional and to refuse leave to abandon the appeal.
14. It is not, in my judgment, a decision with which this court should interfere as being in any way unlawful and accordingly I would dismiss the application.
15. LORD JUSTICE MAURICE KAY: I agree. The Crown Court clearly had in mind that the appropriate sentence may -- I emphasise "may" -- be one which provides for the ongoing supervision of the claimant pursuant to a community order. On that basis, it would be very regrettable if the court were to be prevented from giving full consideration to that possibility because of the delay that arises in the preparation of a pre- sentence report.
16. Whether or not such a way of dealing with the case, as envisaged as a possibility, will still be considered appropriate when the court reconvenes on 4th November in the light of whatever the pre-sentence report says, remains to be seen.
17. I observe that neither on the day when the claimant was sentenced in the Magistrates, Court on 2nd September, nor on the day when the case was considered in the Crown Court on 23rd September, was any application for bail made on the claimant's behalf. There was nothing to prevent such an application following sentence in the Magistrates' Court' or on the 23rd September or even later. I do not propose to prejudge the outcome of any such an application but one can see how the justification for bail might increase in view of the fact that the judge indicated that the appropriate custodial sentence following the early plea of guilty may have been one in the region of 120 days.
18. Be that as it may, for the reasons given by my Lord I too would dismiss this application for judicial review.

Thank you both very much.

19. MISS CARTER: I am grateful.
20. MISS GOODALL: I am instructed to apply for costs.
21. LORD JUSTICE MAURICE KAY: What is the claimant's position?
22. MISS CARTER: He is publicly funded and I was going to ask for a detailed assessment.
23. LORD JUSTICE MAURICE KAY: What are his general circumstances?
24. MISS CARTER: I am afraid I do not have precise instructions but certainly when I saw him on 23rd September he was not in employment and he did not have any savings at that stage but I am afraid I do not have precise details in relation to his finances. One would assume, obviously since he has been remanded in custody, that that is not going to have changed.
25. LORD JUSTICE MAURICE KAY: We cannot see any point in making an order for costs save for assessment of your costs.
26. MISS CARTER: I am very grateful.