R v Maughan and Another
| Jurisdiction | Northern Ireland |
| Judge | Lord Lloyd-Jones,Sir Declan Morgan,Lord Hodge,Lord Burrows,Lord Hamblen |
| Judgment Date | 18 May 2022 |
| Neutral Citation | [2022] UKSC 13 |
| Year | 2022 |
| Court | Supreme Court |
[2022] UKSC 13
Lord Hodge, Deputy President
Lord Hamblen
Lord Burrows
Sir Declan Morgan
Lord Lloyd-Jones
Appellant
Martin O'Rourke QC
Steffan Rafferty BL
(Instructed by John J Rice & Co Solicitors (Belfast))
Respondent
Samuel Magee QC
Natalie Pinkerton BL
(Instructed by Public Prosecution Service for Northern Ireland (Belfast))
Intervener (Lord Advocate)
(written submissions only)
Her Majesty's Advocate
(Instructed by Appeals Unit, Crown Office (Edinburgh))
Heard on 27 January 2022
( with whom Lord Hodge, Lord Hamblen, Lord Burrows and Lord Lloyd-Jones agree)
The appellant pleaded guilty at arraignment on charges of aggravated burglary and stealing, false imprisonment, burglary, attempted burglary and allowing himself to be carried at Downpatrick Crown Court on 14 September 2017. In this appeal it is contended that the sentencing judge erred in reducing the discount to which he was entitled for his plea by reason (i) of his failure to accept responsibility for his offending behaviour when requested for interview after detention or to indicate his intention to plead guilty at any stage prior to arraignment and (ii) the fact that he was caught red handed in respect of some of the offences.
The detection of the appellant and his brother, who was also his co-accused in most of these offences, occurred as a result of events in the late evening of 24 July 2016. At approximately 9.55 pm a 62 year old householder returned to the home that he shared with his two sisters in Newcastle, Co Down. As he opened the front door the appellant and his brother ran up behind him and made their way into the house. The appellant was brandishing a knife. His brother had a screwdriver and lifted a large carving knife threatening to kill one of the sisters. They searched the house for money and valuables which they gathered in a bag. One of the ladies had a chain pulled off her neck and her watch taken. They then made off in the householder's car.
The attack was reported to police that evening and at approximately 11.30 pm the vehicle was identified travelling through Belfast. There followed a high-speed chase at speeds of over 100 mph with the vehicle avoiding a stinger by going through a roundabout on the wrong side and travelling through red lights. When cornered the stolen vehicle was used to ram the following police vehicle and subsequently was driven directly at an officer pointing a rifle towards the vehicle.
Eventually the vehicle came to a halt and the appellant and his brother attempted to make a run for it. They were arrested without warrant shortly afterwards and a range of items from the property in Newcastle were recovered. On any view in respect of these incidents the offenders were caught red-handed.
Further enquiries established compelling evidence including CCTV that in the previous three days the appellant and his brother had attempted to burgle a Parochial House in Holywood, and committed an aggravated burglary of a Parochial House in Finaghy, an aggravated burglary of a house adjacent to a Parochial Hall in Dungannon, an attempted burglary of a Parochial House in Castlewellan, and a burglary of commercial premises in Newcastle. The appellant had also committed an aggravated burglary in the Presbytery of St Peter's Cathedral in Belfast the previous year in the course of which the priest residing there was locked up overnight.
The morning following the appellant's arrest he was deemed fit for interview by the forensic medical officer. His solicitor and an appropriate adult attended but he refused to leave his cell. When an attempt was made to bring a mobile recording device to his cell that evening the appellant began screaming, preparing to spit and threatening to damage the cell if an interview was attempted. No interview was possible. No acceptance of responsibility for any of these matters was made.
The appellant was charged and brought before the Magistrates' Court on 26 July 2016. He was remanded in custody and committed for trial on 30 June 2017. He was arraigned on 14 September 2017 and pleaded guilty to the charges the subject of this appeal. He had given no prior indication of an intention to plead guilty. The case was adjourned for a pre-sentence report and a psychological report and he was sentenced on 21 December 2017.
In his sentencing remarks His Honour Judge Miller QC addressed the question of the discount for the plea in the following terms:
“Having regard to this aspect I take the view, in line with the observations of the court in R v Pollock [2005] NICA 43 that the maximum reduction is only due to those who admit their guilt when first confronted with the allegation. Mr O'Rourke submitted the decision in Pollock was wrong but unless directed otherwise I intend to follow the principle stated therein. As indicated to counsel in view of the fact that neither defendant co-operated with police on arrest and given the fact that for certain of the offences they were either caught red-handed or the evidence against them was so overwhelming, I do not believe that either is entitled to full credit. That said their pleas at an early stage do warrant a significant discount, which I assess at 25% in respect of each defendant.”
The Court of Appeal concluded that the sentencing policy on early admissions was more nuanced than described by the trial judge. The attitude at interview was relevant but not decisive. The policy that an offender caught red handed should not generally enjoy as big a discount as those with a viable defence was well established in Northern Ireland. The court rejected the submission that the meaning of “proceedings for an offence” in article 33 of the Criminal Justice (Northern Ireland) Order 1996 (“the 1996 Order”) was confined to court proceedings and held that it included the investigation of a suspected offence by police. The appeal was dismissed.
There were two sentencing policies at issue in this appeal. The first concerned the identification of the first reasonable opportunity to indicate an intention to plead guilty. This was derived from the decision of the Court of Appeal in Northern Ireland in Attorney General's Reference (No 1 of 2006) [2006] NICA 4 and was restated by the Court of Appeal in this case in the following terms:
“To benefit from the maximum discount on the penalty appropriate to any specific charge a defendant must have indicated his intention to plead guilty to that charge at the earliest opportunity. In this regard the attitude of the offender during interview is relevant. The greatest discount is reserved for those cases where a defendant indicates his intention to plead guilty at the outset.” (Emphasis added)
The second concerned the reduction in discount for the plea applied by Judge Miller QC because the appellant had been caught red handed in respect of some of these offences. Guidance from the Court of Appeal in Northern Ireland on this issue was given in R v Pollock [2005] NICA 43 by Kerr LCJ:
“18. While we can understand the reasons that a reduction of the discount for having been caught red-handed should no longer apply in England and Wales, we do not believe that the situation in Northern Ireland should be taken to be equivalent. We consider that a strong case can still be made in this jurisdiction for distinguishing between those cases where the offender is caught red-handed and those where a viable defence is available. The incentive to plead guilty in the latter category of case should in our view continue to be enhanced in this jurisdiction. It follows that the discount in cases where the offender has been caught red-handed should not generally be as great as in those cases where a workable defence is possible.”
The Court of Appeal in this case agreed that it was undesirable that judges should become involved in an appraisal of the strength of the Crown case and warned that a considerable degree of caution should be exercised in cases where the defendant was not literally caught red handed in treating the evidence as overwhelming.
The administration of justice is a devolved responsibility in Northern Ireland and Scotland. Sentencing policy is largely set by the Court of Appeal in Northern Ireland and the High Court of Justiciary Appeal Court in Scotland. In England and Wales sentencing policy is shared by statute between the Court of Appeal and the Sentencing Council.
In R (Gourlay) v Parole Board [2020] UKSC 50; [2020] 1 WLR 5344 and CPRE Kent v Secretary of State for Communities and Local Government [2021] UKSC 36; [2021] 1 WLR 4168 the Supreme Court recently considered the approach to awards of costs. It concluded that responsibility for developing practice lay principally with the Court of Appeal in those cases. The principles laid down by appellate courts in that area were generally matters of practice and not matters of law. Accordingly only in rare circumstances would an appeal on costs raise a question of law of general public importance.
The reasons for this were that the Court of Appeal heard many more cases than the Supreme Court and was better placed to assess what changes in practice were appropriate. The Supreme Court recognised that guidance from that appellate court was important in securing consistency and transparency. The Court of Appeal had the advantage of speed, flexibility and sensitivity in developing that guidance. The same is true of the responsibility of the Court of Appeal in Northern Ireland for sentencing practice. There was no dispute, therefore, that the legal test in this case was whether the guidance was unlawful, in effect whether it was perverse.
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