R v Newsome ; R v Browne
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WIDGERY,LORD JUSTICE FENTON ATKINSON,and,MR. JUSTICE EVELEIGH |
| Judgment Date | 29 July 1970 |
| Judgment citation (vLex) | [1970] EWCA Crim J0729-1 |
| Docket Number | No. 3518/B/70 |
| Court | Court of Appeal (Criminal Division) |
| Date | 29 July 1970 |
[1970] EWCA Crim J0729-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Widgery
Lord Justice Fenton Atkinson
Mr. Justice Melford Stevenson
Mr. Justice O'Connor
and
Mr. Justice Eveleigh
No. 3518/B/70
No. 2939/B/70
MR. A. HIDDEN appeared on behalf of the Appellant Newsome.
MR. G. CHEYNE appeared on behalf of the Appellant Browne.
MR. F. BEEZLEY appeared on behalf of the Crown.
These two appeals have been heard together because they raise an identical point. Initially I will deal only with the appeal of Newsome. This Appellant pleaded guilty before the Lord Chief Justice at Suffolk Assizes on two counts both related to the same incident. One was causing death by dangerous driving and the other was driving with a blood alcohol concentration above the prescribed limit.
He was sentenced to seven months' imprisonment on the first indictment and one day concurrent on the second, and disqualified for twelve months. He appeals against sentence by leave of the single Judge and has been on bail for a substantial period since the trial.
The issue in this case arises in a rather special way. The case was a bad case of causing death by dangerous driving. I do not propose to go through the details. It is sufficient for this purpose that Mr. Hidden does not seek to challenge the observation of the Lord Chief Justice when passing sentence that this was the kind of case where in respect of an Englishman or an Irishman serving in our own Forces he would unhesitatingly have sent the Appellant to prison for eighteen months. It was that kind of case.
However, sentencing was complicated for two reasons both deriving from the fact that the Appellant was a serving soldier in the United States Forces. The learned Judge was told that the intention was that the Appellant should return to the United States very shortly, and in those circumstances it was quite obvious to everybody at the trial that to pass a suspended sentence of imprisonment would really be equivalent to an absolute discharge because the Appellant would have left the country in a very short space of time and that he would, in fact, have suffered no penalty or sanction in respect of this offence.
Equally, it was very much in the mind of the Lord Chief Justice, as his judgment discloses, that this man's future might well be prejudiced as a result of the sentence passed upon him, and he was clearly anxious to give the United States Military Authorities the maximum scope to deal leniently with this man in their own field if they could. When one has read the whole of what was said at the trial carefully, as we have, it becomes abundantly clear that the learned Lord Chief Justice was minded to pass a custodial sentence, an immediate sentence of imprisonment, as being the only punishment meet for this case, but at the same time was anxious to make that sentence as lenient as he could consistent with it taking effect in that way.
What happened when he passed sentence initially was that he ordered imprisonment for a period of six months. No doubt in a moment of aberration he had overlooked the fact that under Section 39 of the Criminal Justice Act of 1967 a sentence of six months' imprisonment attracts a mandatory suspension, and a mandatory suspension for the reasons which I have already given was clearly not thought appropriate in this case.
Accordingly, having had the matter drawn to his attention by Mr. Hidden observing, as one would expect of him, his duty to the Court in this regard, the Lord Chief Justice immediately reconsidered the matter and imposed a sentence of seven months which, of course, did not involve a mandatory suspension.
The basis of the appeal is that in making that adjustment, if that is the correct word, the learned Lord Chief Justice committed an error of principle in that it is said that such an adjustment in the upward direction is not permissible when it is motivated by a desire to avoid the mandatory suspension imposed by Section 39 of a sentence of six months.
The first thing to observe in this case is the point is not a novel one, and it is quite clear to us that this kind of momentary error is common all over the country for reasons which will be well appreciated, but further than that, there are two earlier decisions of this Court in which the matter was considered.
The first is the case of Corr decided on the 15th January of this year and the second is the case of Maylam decided on the 27th February. For all practical purposes those cases were identical to the present. In each instance a sentence of six months was imposed and then corrected by the presiding Judge for the same reasons as apply in the instant case, and both matters were the subject of appeal to this Court and being appeals on sentence, of course, they were not argued on both sides. Indeed, it seems quite clear from reading the transcripts that on each occasion this Court, sitting in its normal constitution of a division of three, regarded it almost as axiomatic that an adjustment of sentence in this way, even though intended to correct a momentary error, was not permissible and, accordingly, in each case the sentence was quashed and a sentence of six months suspended was substituted.
Of course, the first matter which we have had to consider with Mr. Hidden's assistance is whether it is open to us, albeit we are sitting as a Court of five, to take a different view from that expressed in the two earlier cases. We have been reminded so far as was necessary of the basic principle of stare decisis applicable as it is to civil and criminal Courts in this country. We have noted from the authorities to which Mr. Hidden has referred that there is discernibly a slight tendency in the civil division of this Court to relax the fetters of the doctrine. However, we do not base our decision in this case upon developments in the civil division because they have certainly not reached the point at which it would be appropriate for us to regard them as in any sense binding upon us.
We do, however, recognise, as has been recognised for years, that the principle of stare decisis does not apply in its full vigour to decisions of the Court of Criminal Appeal as it used to be and the criminal division of this Court as it now is.
We have been referred to the case of Taylor, reported in 34 Criminal Appeal Reports at page 138 where a Court of seven departed from a previous view assumed by the Court and declined to follow an earlier authority of this Court. It is perfectly true that the Lord Chief Justice, Lord Goddard, in giving judgment in that case justified the action of the Court to a very large degree by the fact that in that case a...
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