In Court
| DOI | 10.1177/0264550510373967 |
| Published date | 01 September 2010 |
| Date | 01 September 2010 |
| Subject Matter | Articles |
In court
The Journal of Community and Criminal Justice
Copyright ª 2010 NAPO Vol 57(3): 349-359
DOI: 10.1177/0264550510373967
www.napo.org.uk
http://prb.sagepub.com
General sentencing issues
Requesting PSRs: Legitimate expectations?
Where a court ordering a pre-sentence report indicates the nature of the sentence it
has in mind, is a differently constituted court receiving that PSR bound by that indi-
cation even where it considers that the first court had adopted an unreasonably leni-
ent stance? A sequence of cases of long-standing, notably that of Gillam (1980),
had established that where there has been ‘something in the nature of a promise,
express or implied’ that gives a defendant a sense of legitimate expectation, the sen-
tencing court should not resile from the earlier court’s indication. This principle now
embraces the added dimension of courts’ duty under CJA 2003 s172 to have
regard to pertinent guidelines issued by the Sentencing Guidelines Council (SGC),
coupled with the widespread use in magistrates’ courts of a form detailing the provi-
sional stance of the bench requesting the PSR. The issue has recently been posed
afresh, prompting challenge by the offender using the ‘case stated’ appeal process.
In the course of a late night group fracas outside a public house two young men,
T. aged 20 and a 19 year-old, reacted to seeing another man pulling the hair of a
young woman with such force that she fell to the ground by attacking him. The victim
was knocked to the ground and subjected to repeated punches and kicks. Perhaps
surprisingly, they were charged not with assault (or even with affray) but with threa-
tening behaviour (Public Order Act 1986 s4), probably because the victim had
been unwilling to make a statement to the police. Both defendants entered timely
guilty pleas. Though the younger man was of previous good character, T. had prior
convictions, most prominently for conspiracy to rob, attracting a four year term from
which he had been released on licence eight months before the current crime, his
sentence expiring in a further 16 months following that episode.
When the case was considered by a lay Bench the justices’ attention was drawn
to the relevant part of the SGC’s Magistrates’ Courts Sentencing Guidelines (2008)
which identifies that for circumstances falling in the mid-range of this kind of offend-
ing, featuring ‘fear or threat of immediate unlawful violence such as a punch’, courts
should adopt a starting point (in respect of a first time offender pleading not guilty) of
a high level community order, with a range between a low level community order
and 12 weeks custody. The magistrates completed a pre-sentence assessment stage
‘sentencing form’, identifying as their starting point ‘community medium’, noting as
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350
57(3)
aggravating factor ‘kicking and punching the victim’, with ‘impulsive reaction to vic-
tim assaulting female’ as offence mitigation. As regards ‘community order require-
ments to be investigated’, the Bench indicated ‘unpaid work’. Though the form
included the standard advice: ‘ensure that the defendant is warned that this does not
guarantee a non-custodial sentence will be imposed’, there was no evidence that
any warning was issued and the Divisional Court was subsequently prepared to
accept that the justices had indicated that a medium level community penalty was
appropriate, thus effectively ruling out custody.
Following completion of a PSR in respect of T. his case came before a district
judge (DJ) who, in light of what she considered significant aggravating features
in respect of the offence, advised the defence that she had concerns with the indica-
tion previously given by the justices. She went on to impose suspended sentence
orders on both defendants, in T.’s case 20 weeks suspended for 18 months. T.
appealed, arguing that the DJ should have felt bound by her lay colleagues’ prior
indication. The questions identified to be answered by the High Court included:
where an indication given to a defendant about the level of sentence is inconsistent
with the SGC’s guidelines and no reason is given for departing from the guidelines,
can the defendant be said to have a legitimate expectation?
Having regard to recent judgments by the High Court addressing these consid-
erations, Aikens LJ reiterated the principle that a sentencing court should act in
accordance with an earlier indication given to a defendant and that if a court passes
a more severe sentence ‘without reason which justifies departure from the early indi-
cation’, the High Court will feel obliged, however reluctantly, to amend sentence to
bring it into line with that indicated. However, no judicial review will lead to a reduc-
tion in sentence on the basis of ‘legitimate justification’ if the expectation had been
founded in an indication that ‘was so unreasonable as to be perverse, or was a deci-
sion that no reasonable Bench, properly directing itself, could have reached’. The
core question that thus fell to be determined here was whether the DJ had had reason
to depart from the lay Bench’s indication. In amplifying the principles governing the
correct approach to giving an indication of sentence, Aikens LJ specified as follows:
when giving an indication a Bench is duty bound to have regard to sentencing
guidelines;
such regard must be proper, reasonable regard, not an unreasonable one;
if a Bench gives an indication of sentence without proper, reasonable regard
to guidelines that may mean, depending on the circumstances of the case, that
the indication cannot give rise to a legitimate expectation on the defendant’s
part and may give the subsequent Bench good reason to justify departing from
the earlier indication.
In this instance, the Divisional Court considered that the justices had misjudged the
level of offence seriousness, having regard to the circumstances of an attack by a
large group on a single victim outside licensed premises, evidencing a considerable
degree of violence and perpetrated in T.’s case during the unexpired period of a
previous custodial sentence imposed for a serious offence. Notwithstanding mitiga-
tion afforded by the victim’s behaviour, the impulsive nature of the offenders’
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In Court 351
response and their guilty pleas, it had been unreasonable to regard the offence as
falling within the middle category of the SGC guidelines; it had come within the
highest category, with a starting point of 12 weeks custody. Accordingly, the indi-
cation given had been unreasonable and the DJ had thus not been bound by it. T.’s
appeal was thus dismissed. The Court went on to endorse the view given in a similar
kind of case, Nicholas v Chester Magistrates’ Court (2009):
We thoroughly deprecate the practice, if such it be, of one Bench to adjourn
sentencing for reports and in so doing give an indication as to the type of sentence
which it would be appropriate to pass where that bench is not reserving sentence
to itself. By so doing, as is indicated in the authorities, and save in an exceptional
case, the effect of that is to...
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