QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|CHESHIRE EAST BOROUGH COUNCIL||Defendant|
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"A person guilty of an offence under [the various regulations including regulations 9 and 11] shall be liable -
(a) on summary conviction, to a fine not exceeding the statutory maximum [which is £5,000]; or
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding two years or both."
"In short, it is alleged in this case that the Appellant has carried out building work in the Complainant's home that was unnecessary and expensive [£6,000] and then driven the Complainant to the bank on more than one occasion for [her] to withdraw the cash to pay for the work. The Court considered that the Complainant was likely to be vulnerable given [her] age."
The age is not in fact identified but the complainant was an elderly lady. I am told by Mr Lake that by elderly he understood she was at least over 60.
"13. There being no sentencing guidelines for offences under the Consumer Protection from Unfair Trading Regulations 2008, our Legal Adviser drew our attention to the Sentencing Guidelines for Fraud Offences. He advised us that, in cases where there was no sentencing guideline for the offences alleged, both Legal Advisers and Magistrates had been trained to study the guidelines, identify the guideline for the offence that appeared most analogous to the offences alleged and to make reference to that guideline in dealing with the offences alleged either in deciding sentence after conviction or (as here) in determining what the sentence might be after conviction so that Magistrates could decide whether their sentencing powers were adequate when dealing with mode of trial. In accordance with standard procedure in the Magistrates' Court these issues were initially raised and with us by our Legal Adviser prior to our coming into Court..."
They then deal with that last point, but there is nothing that turns on it because it is not suggested that, as it were, secret advice was given, because the matter was dealt with openly and submissions were invited from the appellant's representatives at the hearing.
"36. We have already observed that the appellants were perhaps fortunate that the prosecution chose not to pursue the charge of conspiracy to defraud. If the appellants had been convicted of such an offence, then maybe the total sentences passed would have been justified. But the offences to which they pleaded guilty and the basis upon which they fell to be sentenced are offences of neglect of duty only. Dishonesty is not a component of the regulatory offences. We think that the Recorder was wrong to sentence them upon the basis that dishonesty was alleged in the charge, let alone that it had been admitted.
37. Furthermore, in our judgment, the Recorder was also plainly wrong to seek guidance from the Sentencing Guidelines Council's Definitive Guideline on Fraud, which is also predicated upon dishonesty."
Then he went on to say that the appellants could be sentenced only for what was alleged against them in the particulars of the offences, and of course the particulars did not and, similarly in this case, do not allege dishonesty.
"Absent a specific sentencing guideline for the offences before us, were we wrong in law in considering the starting points and ranges for offences within the Sentencing Guidelines Council's Magistrates' Court Sentencing Guidelines that are of a similar level of seriousness to inform our determination as to jurisdiction?"
In principle the answer to that would be "Yes", but one must underline the words "of a similar level of seriousness". It is only appropriate to refer to guidelines where the particular offence has no guidelines specific to it if in reality it is analogous, or of a similar level of seriousness. The mistake here was to refer to a guideline which was based upon dishonesty, when dishonesty was not an ingredient of the offences with which the appellant was charged.
"Was it an unreasonable exercise of our discretion to find that the most analogous Sentencing Guidelines Council's Magistrates' Court Sentencing Guideline was that pertaining to confidence fraud?"
The answer is that it was a wrongful exercise of discretion. I do not think one needs to use the word "unreasonable", but it clearly was in my view, for reasons I have given, wrong in law. The third question they ask is:
"Was it unreasonable for us to conclude that, on conviction after trial, this defendant would be likely to receive a custodial sentence?"
The first point to make is that a "highly likely" test was not a correct test. What they had to consider, when deciding on mode of trial, was whether, as I put it earlier, the custody threshold was passed. That is to say, whether it should be open to the court, on the facts, to impose a sentence which was more than that which they were empowered to impose.