R v Howells
| Jurisdiction | England & Wales |
| Judge | Lord Chief Justice |
| Judgment Date | 30 July 1998 |
| Judgment citation (vLex) | [1998] EWCA Crim J0730-10 |
| Docket Number | Case No: 98/3270/Y2, 98/3871/Y4 98/3826/W3, 98/3394/W4, 98/3990/Z2 98/7533/S1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 30 July 1998 |
[1998] EWCA Crim J0730-10
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
The Lord Chief Justice of England
(Lord Bingham of Cornhill)
Mr Justice Ian Kennedy
and
Mr Justice Collins
Case No: 98/3270/Y2, 98/3871/Y4
98/3827/Z2, 98/3618/W4, 98/3623/W4
98/3826/W3, 98/3394/W4, 98/3990/Z2
98/7533/S1
and
MR P RICHARDS appeared on behalf of the Applicant Howells
MR J COLLINS appeared on behalf of the Applicant Ashby
MR EL WHAITES appeared on behalf of the Appellant Glowacki
MR S FRANKLIN appeared on behalf of the Appellants Robson & Howard
MR VAN DER ZWART appeared on behalf of the Appellant Marston
MR MF BUTTERWORTH appeared on behalf of the Applicant Shanoor
In each of these cases a relatively short sentence of imprisonment or detention was imposed. The longest sentence under review was 12 months', the shortest 4 months'. Factually, the cases have little or nothing in common. Our purpose in giving this reserved judgment in all the cases together is to give such little help as we can in resolving one of the most elusive problems of criminal sentencing: when is an offence so serious that only a custodial sentence can be justified for it?
Sections 1 and 2 of the Criminal Justice Act 1991, as amended, contain the overriding provisions which govern the exercise of the court's discretion to impose a custodial sentence. So far as relevant to the present issues these sections provide:
"1. (2) Subject to subsection (3) below, the court shall not pass a custodial sentence on the offender unless it is of the opinion —
that the offence, or the combination of the offence and one of more offences associated with it, was so serious that only such a sentence can be justified for the offence; or ……..
(3) Nothing in subsection (2) above shall prevent the court from passing a custodial sentence on the offender if he fails to express his willingness to comply with a requirement which is proposed by the court to be included in a probation order or supervision order and which requires an expression of such willingness.
(4) Where a court passes a custodial sentence, it shall be its duty - in a case not falling within subsection (3) above, to state in open court that it is of the opinion that either or both of paragraphs (a) and (b) of subsection (2) above apply and why it is of that opinion; and in any case, to explain to the offender in open court and in ordinary language why it is passing a custodial sentence on him.
(2) Subject to sections 3(2) and 4(2) of that Act [the Crime(Sentences) Act 1997], the custodial sentence shall be - for such term (not exceeding the permitted maximum) as in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it; or ……….."
These provisions were the successors to somewhat comparable provisions in section 1(4) of the Criminal Justice Act 1982, which contained the words "the offence was so serious that a non-custodial sentence cannot be justified". This expression was considered by this court in R v Bradbourn (1985) 7 Cr.App.R.(S) 180 at 182 where Lawton LJ, delivering the judgment of the court, said:
"This section of the Criminal Justice Act 1982 has created much difficulty for the courts because it is pregnant with a number of ambiguities. For example, what is meant by the phrase, "necessary for the protection of the public"? Does it refer to the future activities of the offender or does it refer to the fact that the particular offender's offence is of a kind which may be dangerous to the public and from which the public require protection? Further, there is nothing in the subsection to indicate what is meant by the phrase, "so serious that a non-custodial sentence cannot be justified". Does it refer to the label which is put on the offence or does it refer to the circumstances of the offence? In our judgment, it is unlikely that it refers to the label put on an offence. An illustration will show why. A youth of 17 may wrench a handbag out of the hand of a woman out shopping—a common kind of offence. The force used to achieve the wrenching may take the offence just over the border from theft into robbery. It is an unpleasant offence, but is it so serious, if it is a first offence, that a non-custodial sentence cannot be justified? Another youth of the same age may do the same and in addition punch the woman in the face breaking her jaw. The label on the offence will be the same, but the circumstances will be different.
The application of this section by the courts has come under considerable criticism, most from academic writers. In the May 1985 number of the Criminal Law Review, under the heading "A duty unfulfilled," the editor said this:
"Ever since the section came into force, there has been a manifest need for guidance on the considerations which may or may not bring a case within one of the grounds specified in section 1(4). On several occasions the Court of Appeal has failed even to consider the relevance of section 1(4) in a case to which it clearly applies …."
The learned editor then set out a number of such cases. He may not appreciate that this Court and other courts can recognise an elephant when they see one, but may not find it necessary to define it.
In this case we are not called upon to construe any of the phrases in section 1(4) other than the phrase, "so serious that a non-custodial sentence cannot be justified". It may be of help to academics lecturing in criminology to have definitions given by this Court of other parts of the subsection, but any attempt by this Court to do so in this case would be obiter. In our judgment the phrase, "so serious that a non-custodial sentence cannot be justified" comes to this: the kind of offence which when committed by a young person would make right-thinking members of the public, knowing all the facts, feel that justice had not been done by the passing of any sentence other than a custodial one. We think that is as good guidance as we can give to courts and that any attempt to be more specific would only add to the difficulties of courts and not help them."
In R v Cox [1993] 1 WLR 188 (1993) 14 Cr.App.R. (S) 479 these observations were held to apply to the slightly different language of section 1(2)(a) of the 1991 Act, which was of wider application than the earlier section. But the difficulty of definition to which the court referred in R v Bradbourn is a real and persistent one. There is no bright line which separates offences which are so serious that only a custodial sentence can be justified from offences which are not so serious as to require the passing of a custodial sentence. But it cannot be said that the "right-thinking members of the public" test is very helpful, since the sentencing court has no means of ascertaining the views of right-thinking members of the public and inevitably attributes to such right-thinking members its own views. So, when applying this test, the sentencing court is doing little more than reflect its own opinion whether justice would or would not be done and be seen to be done by the passing of a non-custodial sentence. In the end, the sentencing court is bound to give effect to its own subjective judgment of what justice requires on the peculiar facts of the case before it.
It would be dangerous and wrong for this court to lay down prescriptive rules governing the exercise of that judgment, and any guidance we give, however general, will be subject to exceptions and qualifications in some cases. We do however think that in approaching cases which are on or near the custody threshold courts will usually find it helpful to begin by considering the nature and extent of the defendant's criminal intention and the nature and extent of any injury or damage caused to the victim. Other things being equal, an offence which is deliberate and premeditated will usually be more serious than one which is spontaneous and unpremeditated or which involves an excessive response to provocation; an offence which inflicts personal injury or mental trauma, particularly if permanent, will usually be more serious than one which inflicts financial loss only. In considering the seriousness of any offence the court may take into account any previous convictions of the offender or any failure to respond to previous sentences (1991 Act, section 29(1)) and must treat it as an aggravating factor if the offence was committed while the offender was on bail (1991 Act, section 29(2)).
In deciding whether to impose a custodial sentence in borderline cases the sentencing court will ordinarily take account of matters relating to the offender:
The court will have regard to an offender's admission of responsibility for the offence, particularly if reflected in a plea of guilty tendered at the earliest opportunity and accompanied by hard evidence of genuine remorse, as shown (for example) by an expression of regret to the victim and an offer of compensation. Attention is drawn to section 48 of the Criminal Justice and Public Order Act 1994.
Where offending has been fuelled by addiction to drink or drugs, the court will be inclined to look more favourably on an offender who has already demonstrated (by taking practical steps to that end) a genuine, self-motivated determination to address his addiction.
Youth and immaturity, while affording no defence, will often justify a less rigorous penalty than would be appropriate for an adult.
Some measure of leniency will...
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...WLR 328 573ex pStafford(1998) 2 WLR 372 52R vHorseferryRoadMC,ex pHillier(1998)162JP783187R v Howeand Son (1999) 2AllER249 427R vHowells(1998) 162 JP 731 222R vJones(1999) 163 JP 97 339R v Kelly (1998) 3AllER 741 25R v Kelly(Edward)(1999) 2 WLR1100 446R v Kennedy (1999) 1 Cr App R54 229R vK......
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Cases
...1253454ex p Stafford [1998] 2 WLR 372 52R vHorseferryRoadMC,ex p Hillier (1998)162JP783187R vHoweand Son [1999] 2 All ER249427R vHowells(1998) 162 JP 731 222R v Jones (1999) 163 JP 97 339R v Kelly (1998) 3 All ER 741 25R v Kelly(Edward)[1999] 2 WLR1100446RvKennedy.(1999) 1 Cr App R 54 229R ......
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...1253454ex p Stafford [1998] 2 WLR 372 52R vHorseferryRoadMC,ex p Hillier (1998)162JP783187R vHoweand Son [1999] 2 All ER249427R vHowells(1998) 162 JP 731 222R v Jones (1999) 163 JP 97 339R v Kelly (1998) 3 All ER 741 25R v Kelly(Edward)[1999] 2 WLR1100446RvKennedy.(1999) 1 Cr App R 54 229R ......