R v Grice
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WALLER,LORD JUSTICE ROSKILL |
| Judgment Date | 26 July 1977 |
| Judgment citation (vLex) | [1977] EWCA Crim J0726-1 |
| Docket Number | No. 3376/R/77 |
| Court | Court of Appeal (Criminal Division) |
| Date | 26 July 1977 |
[1977] EWCA Crim J0726-1
Lord Justice Roskill
Lord Justice Waller
and
Mr. Justice Ackner
No. 3376/R/77
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. K. WILSON MELLOR, Q. C. and MR. R. F. SOLMAN appeared on behalf of the Appellant.
MR. J.D. ROYER appeared on behalf of the Crown.
This is an appeal by leave from a sentence that was imposed by Mr. Recorder Kelly at Stafford on 20th June of this year.
The facts of the case on which the sentence was originally passed were these. The appellant, aged 45, married his present wife, who had a number of children, in November 1975 and he adopted them. The eldest of these children is a girl.
In February 1977 she alleged that the appellant had had sexual intercourse with her on a number of occasions. That was a statement which she made to the police. The appellant was interviewed by the police. He at first said that she was making it up. He then made a statement that he had had sexual intercourse with her over an appreciable time, some of which was before she was 16. I am deliberately not going into the facts in detail, because at the end of the day the details of them do not make any difference to the course that we propose to take.
When the case had been committed for trial and came before Mr. Justice Goff, on 5th May, he pleaded not guilty and so the hearing was adjourned until 14th June, when the case was listed before Mr. Recorder Kelly. Mr. Recorder Kelly, having read the social enquiry report, formed the understandable view that it would be unfortunate if the girl had to go into the witness box and give evidence and be cross-examined. So he asked counsel for the prosecution and for the defence to come and see him.
He indicated his view to both counsel, that he was not minded to impose an immediate sentence if the appellant pleaded guilty. He indicated that one of the matters that he had in mind was that the girl had attempted suicide and that was involved with the affair between her and the appellant. He also said that he was worried about future contact with the two girls.
It was agreed in that discussion, so we are told, and the Recorder has agreed the version of the facts, that no condition could be incorporated in a suspended sentence. But counsel on behalf of the appellant indicated to the Recorder that the appellant intended to move, and said that subject to the appellant agreeing to a change of plea, he, the appellant, might give a voluntary undertaking, but it was agreed that this undertaking was not enforceable in law. I should have said that up to that time counsel's instructions were that this was to be a plea of not guilty and a fought case.
When that indication had been made by the Recorder, counsel naturally went back to his client, told him what was in the Recorder's mind, and the appellant decided that he would plead guilty. I will return to that in a moment, but I will just continue the outline of the facts. The appellant pleaded guilty and coming before the learned Recorder, counsel on his behalf said in mitigation that the appellant was prepared to undertake not to see the two girls.
The Recorder, in sentencing the appellant, said: "… this is a bad case. Normally I would have sent you to prison for four years straightaway. I am not going to do that for two reasons. First of all, you spared this girl the ordeal of giving evidence, and, secondly, you have had the decency to plead guilty; otherwise it would have been four years straightaway. what we are going to do instead is send you to prison for two years; that is one year on each count, but it will be suspended for three years, for two years." He explained that that meant that if he committed any other crime at any time during the next two years, not only would he be sentenced for that, but this sentence would be added.
Having passed that sentence he went on to say: "Now, the second thing is this. This must never happen again with either this girl or the other girl. I want you to promise us that you will never go near those two girls again, and never let them go near you. Are you willing to make that promise?" and the appellant replied "Yes". That was on 14th June.
On the following Friday it came to the notice of the police that the appellant had been to his wife's house and that the younger girl was there. The younger girl was not living at home, but was living at somebody else's house, as was the elder girl. When that information was brought to the notice of the learned Recorder, he caused a warrant to be issued, and later, when he was explaining what he did, in the course of the judgment, he said: "On Friday I was informed of this and I accordingly issued a warrant for Grice's immediate arrest. He was brought before me unrepresented. I heard part of the Police evidence. I asked him if he had any explanation. He gave one which I did not accept, and I committed him to prison over the weekend for contempt of court."
On Monday 20th the appellant came up before the Recorder, and we are told by Mr. Mellor, who has appeared in this Court on his behalf, that the proceedings took virtually the whole of the day. The Recorder was concerned with what he thought was a gross breach of an undertaking which the appellant had given. He considered various ways in which he could possibly deal with the case. He considered the possibility of binding the appellant over with a condition; he considered the possibility of putting him on probation, but he rejected both of those and ultimately he decided that section 11 of the Courts Act gave him power to alter the sentence which he had passed the previous week. He altered the sentence from one of a suspended sentence of imprisonment to one of immediate imprisonment.
I have briefly related the events in the order in which they took place, but, as it seems to us, at almost every stage, everything that the learned Recorder did was wrong. No doubt he did it with the best of intentions to avoid the unfortunate girl having to give evidence. But even if it were possible to achieve that objective, the methods which he adopted were wholly wrong.
I start first with the events of 14th June. They are described by the learned Recorder as a "plea bargain" in this way – I think it is fair to read what he said: "I have the advantage of sitting with a Lady Magistrate of 19 years' experience on the Bench and some 30 years' of teaching children of all ages, and particularly young girls. In other words, she is a lady who, putting it...
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