James Philip Daniel Cairns v The Queen
| Jurisdiction | England & Wales |
| Judge | Lord Justice Leveson |
| Judgment Date | 16 April 2013 |
| Neutral Citation | [2013] EWCA Crim 467 |
| Docket Number | Case No: (1) 201207125 A6; (2) 201206160 A7; (3) 201204341 A4; 201204436 A4; (4) 201300041 A5; 2012 07366 A5. |
| Court | Court of Appeal (Criminal Division) |
| Date | 16 April 2013 |
[2013] EWCA Crim 467
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURTS AT
(1) MAIDSTONE (His Honour Judge Joy) T20120415
(2) MERTHYR TYDFIL (His Honour Judge Williams) T20120264
(3) CARDIFF (His Honour Judge Curran) T20107814
(4) PRESTON (Mr Recorder O'Brien) T20127049/54
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Leveson
Mr Justice Mitting
and
Mr Justice Males
Case No: (1) 201207125 A6; (2) 201206160 A7; (3) 201204341 A4; 201204436 A4; (4) 201300041 A5; 2012 07366 A5.
Quentin Hunt for the Appellant Cairns
Alexander Greenwood for the Appellant Morris
Ian Murphy Q.C. for the Appellant Rafiq
John Charles Rees Q.C. for the Appellant Drummond
Timothy Brennand for the Appellant Firfire
Kenneth Hind for the Appellant Latif
All assigned by the Registrar of Criminal Appeals
Paul Lewis Q.C. (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 27 March 2013
Approved Judgment
Far too many appeals against sentence are mounted on the basis that the Judge has failed to have any, or sufficient, regard to the basis on which a plea of guilty has been entered. Although it has not been submitted that the principles are in doubt, these cases (each of which is said to raise some aspect of the problem) have been collected together in order to re-state the approach to be adopted. To that end, the Crown Prosecution Service has instructed Mr Paul Lewis Q.C. (who was counsel for the Crown in the case of Rafiq and Drummond) to provide over-arching or general submissions: we are grateful for his assistance.
It is a cardinal principle of our criminal justice system that, for those cases decided in the Crown Court, a jury decides on the guilt or otherwise of those charged with crime. That critical decision concerns only whether the ingredients of the criminal offence or offences (as set out in the indictment) are proved. The jury is not concerned with what might be described as the aggravating or mitigating circumstances which will be important in the event of a conviction, namely the decision that falls to the judge as to the sentence to be imposed. Only in very rare circumstances should the jury be asked questions supplementary to the verdict (one example being whether manslaughter has been proved as an involuntary act, by reason of diminished responsibility or because of loss of control).
After a trial, therefore, once the offence has been proved, in order to do justice, the judge has to determine the gravity of the offending and is both entitled and required to reach his or her own assessment of the facts, deciding what evidence to accept and what to reject. The conclusions must be clear and unambiguous not least so that both the offender and the wider public will know the facts which have formed the basis for the sentencing exercise. They also inform this court should the offender seek to appeal the sentence as wrong in principle or manifestly excessive, or the Attorney General seek to refer it as unduly lenient.
The position is no different when an offender pleads guilty. The admission comprised within the guilty plea is to the offence and not necessarily to all the facts or inferences for which the prosecution contend. Once again, however, the responsibility for determining the facts which inform the assessment of the sentence is that of the judge. In the normal course, when the contrary is not suggested, that assessment will be based on the prosecution facts as disclosed by the statements. If, however, the offender seeks to challenge that account, the onus is on him to do so and to identify the areas of dispute in writing, first with the prosecution and then with the court.
The proper approach of the prosecution to bases of plea was considered in R v Tolera [1999] 1 Cr App R 29 and is now set out in the Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise (issued with effect from 1 December 2009). In so far as it deals with the position of the defendant and the court, it can be summarised in this way:
i) A basis of plea must not be agreed on a misleading or untrue set of facts and must take proper account of the victim's interests; in cases involving multiple defendants, the bases of plea for each defendant must be factually consistent with each other (see para C1).
ii) The written basis of plea must be scrutinised by the prosecution with great care. If a defendant seeks to mitigate on the basis of assertions of fact outside the prosecutor's knowledge (for example as to his state of mind), the judge should be invited not to accept this version unless given on oath and tested in cross examination as set out in IV.45.14 of the Consolidated Criminal Practice Directions (CCPD): see para. C3. If evidence is not given in this way, then the judge might draw such inferences as he thought fit from that fact.
iii) The prosecution advocate must ensure that the defence advocate is aware of the basis on which the plea is accepted and the way in which the case will be opened (para. C5). Where a basis of plea is agreed, having been reduced into writing and signed by advocates for both sides, it should be submitted to the judge prior to the opening. It should not contain matters that are in dispute: see R v Underwood [2005] 1 Cr App R 13 replicated in CCPD IV.45.11(c) and (d). If it is not agreed, the basis of plea should be set out in writing identifying what is in issue; if the court decides that the dispute is material to sentence, it may direct further representations or evidence in accordance with the principles set out in R v Newton (1982) 77 Cr App R 13.
iv) Both sides must ensure that the judge is aware of any discrepancy between the basis of plea and the prosecution case that could potentially have a significant effect on sentence so that consideration can be given to holding a Newton hearing. Even where the basis of plea is agreed between the prosecution and the defence, the judge is not bound by such agreement: see paras. C8 and C10, CPR IV.45.12 and Underwood(ibid). But if the judge is minded not to accept the basis of plea in a case where that may affect sentence, he should say so.
Without seeking to be exhaustive of the issues that might arise (or citing all the relevant authorities), there is no obligation to hold a Newton hearing (a) if the difference between the two versions of fact is immaterial to sentence (in which event the defendant's version must be adopted: R v Hall (1984) 6 Cr App R (S) 321; (b) where the defence version can be described as 'manifestly false' or 'wholly implausible': R v Hawkins (1985) Cr App R (S) 351; or (c) where the matters put forward by the defendant do not contradict the prosecution case but constitute extraneous mitigation where the court is not bound to accept the truth of the matters put forward whether or not they are challenged by the prosecution: R v Broderick (1994) 15 Cr App R (S) 476.
A Newton hearing need not be a lengthy affair. By way of example, in the case of Cairns discussed below, if the judge was concerned that the defendant was, in truth, the equivalent of a street dealer (given the quantity of drugs, the money in his possession and the phone details), it would have taken a few minutes only for the defendant to be provided with the opportunity and, if he took it, to give evidence seeking to establish his contention that his supply of class A drugs to others was on a social basis to friends and associates only. The judge would then have been in a position to decide the issue to the usual standards. Given the risk that credit for a guilty plea will be reduced if there is an adverse Newton finding (see R v Caley & other cases [2012] EWCA Crim 2821 at paras. 26 and 27), advancing a spurious basis of plea will require careful consideration. At the conclusion of any such hearing, in order to meet the requirements of the defendant and the wider public, the judge should provide a reasoned decision as to his findings of fact and thereafter, following mitigation, proceed to sentence.
After conviction following a trial, the judge is bound to honour the verdicts of the jury but, provided he does so, is entitled to form his own view of the facts in the light of the evidence. This is so even if the jury express an opinion on a matter going only to sentence: see R v Mills [2004] 1 Cr App R (S) 332. In R v McGlade (1990) 12 Cr App R (S) 105, Lord Taylor CJ put the general proposition in this way (at 109):
"There is clear authority that if the verdict of a jury leads inexorably to one version of the facts being found and only one version, the learned judge is bound to sentence upon that basis. But if the verdict of a jury leaves open some important issue which may affect sentence, then the learned judge, having heard all the evidence himself in the course of the trial, is free and, indeed, it is his duty to come to a conclusion, if he can, upon where the truth lies."
That is not to say that a Newton hearing is never appropriate after a trial. If an issue not relevant to guilt but relevant to sentence has not been canvassed in the trial, a further hearing may be necessary. In R v Finch (1993) 14 Cr App R (S) 226, the defendant alleged that he had been enticed into carrying drugs by a police officer and the judge made...
To continue reading
Request your trial
-
R Ronald Middleton v Vanessa Geard
...principles are clear and the approach to be adopted was set out again by the President of the Queen's Bench Division in R v Cairns [2013] EWCA Crim. 467. 11 The learned judge was obliged in any event to go through the sentencing exercise in accordance with the guidelines issued by the Sente......
-
R v Bipin Kumar Solanki
...83 At paragraph 15 of the skeleton argument on sentence, Solanki refers to the decision of this court in R v Cairns and Others [2013] EWCA Crim 467, at [8] to [10] in the judgment given by Leveson 84 It is submitted that a Newton hearing would not have been appropriate in this case after a......
-
R v Neil Greenfield
...of legal principles which are relevant to these appeals. They are principally derived from the judgments of this court in R v Cairns [2013] EWCA Crim. 467, R v Cuni [2018] EWCA Crim. 600 and R v Williams [2019] EWCA Crim. 279, and authorities which are cited in or have followed those cas......
-
Queen v William Robert Thompson Morrow
...2018, the Crown invited the court to consider whether a Newton hearing was necessary. The Judge was referred to the case of R v Cairns [2013] EWCA Crim 467 which makes it clear that the decision as to whether a Newton hearing is required is one for the court. At paragraph [6] of R v Cairns,......