Robert Perkins and Others v R

JurisdictionEngland & Wales
JudgeMr Justice Irwin,The Lord Chief Justice Of England And Wales Mr Justice Simon
Judgment Date26 March 2013
Neutral Citation[2013] EWCA Crim 323
Docket NumberCase No: (1)2012/02519;(2)2012/05883;(3)2012/03179
CourtCourt of Appeal (Criminal Division)
Date26 March 2013
Between:
(1) Robert Perkins
(2) Billy Bennett
(3) Ronnie Hall
Appellant
and
R
Respondent

[2013] EWCA Crim 323

Before:

The Lord Chief Justice Of England And Wales Mr Justice Simon

and

Mr Justice Irwin

Case No: (1)2012/02519;(2)2012/05883;(3)2012/03179

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM (1) BRADFORD CROWN COURT

(2) CHELMSFORD CROWN COURT

(3) PETERBOROUGH CROWN COURT SITTING AT HUNTINGDON

(1)His Honour Judge Durham Hall QC

(2) Mr Recorder Dodd QC

(3) Mr Recorder Clark

(1) T2011/7601; (2) T2012/7110; (3) T2011/7211

Royal Courts of Justice

Strand, London, WC2A 2LL

(1) Stephen Wood for the Applicant Perkins

(2) P Panayi for the Applicant Bennett

(3) Roy James (Solicitor Advocate) for the Applicant Hall

Tom Little for the Crown

Hearing date: 12th February 2013

1

LORD JUDGE LORD CHIEF JUSTICE OF ENGLAND AND WALES: 1. These cases, which were heard together, raised a number of different questions about victim personal statements and, in cases of homicide, family impact statements, both now well-established parts of criminal process. They are:

a) An appeal against sentence by Robert Perkins who, following his guilty plea and variation of sentence made under s.155 of the Power of Criminal Courts (Sentencing) Act 2000, was made subject to a total sentence of 12 years imprisonment by His Honour Judge Durham Hall QC in the Crown Court at Bradford.

b) An appeal against sentence by Billy Bennett who, following his guilty plea, was sentenced to a total of 9 years imprisonment by Mr Recorder Dodd QC at Chelmsford Crown Court on 17 September 2012.

c) An appeal against conviction for aggravated burglary by Ronnie Hall at the Crown Court at Peterborough sitting at Huntingdon before Mr Recorder Clarke and a jury on 16 March 2012. On 27 April he was sentenced to 11 years imprisonment.

Victim Personal Statements/Family Impact Statements

2

Victim Personal Statements that is, statements by the victims of a crime or crimes, or in cases involving death, Family Impact Statements, by surviving members of the family of the deceased, were formally introduced into the criminal justice system of England and Wales in 2001. In this judgment they will be referred to as the statement or statements. They were included in the Practice Direction (Criminal Proceedings: Consolidation) [2002] 1 WLR 2872 and they are now found in Part III 28 of the Current Consolidated Criminal Practice Direction [2009] 1 WLR 1396. Their purpose is to allow victims a more structured opportunity to explain how they have been affected by the crime or crimes of which they were victims. They provide a practical way of ensuring that the sentencing court will, consider, in accordance with s.143 of the Criminal Justice Act 2003, "any harm which the offence caused", reflecting on the evidence of the victim about the specific and personal impact of the offence or offences, or in the cases of homicide, on the family of the deceased. The statements may, albeit incidentally to the purposes of the sentencing court, identify a need for additional or specific support or protection for the victims of crime, to be considered at the end of the sentencing process. At the same time, the process does not create or constitute an opportunity for the victim of crime to suggest or discuss the type or level of sentence to be imposed. The distinction is important, and is sometimes misunderstood. It is, however, well exemplified in Nunn [1996] 2 Cr. App. R(S) 136.

3

This was a sensitive case in which the defendant had caused the death of a close friend after driving dangerously, having consumed alcohol. After sentence in the Crown Court, this court was supplied with statements from the mother and one of the sisters of the deceased who were seeking, indeed urging, clemency on the court, not merely because the sentence passed on Nunn was having a detrimental effect on him, but because it was adversely affecting their ability to come to terms with the loss and grief which they had suffered. As the mother made clear in her statement, her husband, the father of the deceased and his other sister, did not agree with them. In short, victims of precisely the same crime, with the same dreadful consequent emotional damage, took diametrically opposed views about the sentence.

4

The court observed:

"… if the victim feels utterly merciful towards the criminal, and some do, the crime has still been committed and must be punished as it deserves. If the victim is obsessed with vengeance, which can in reality only be assuaged by a very long sentence, as also happens, the punishment cannot be made longer by the court than would otherwise be appropriate. Otherwise cases with identical features would be dealt with in widely differing ways, leading to improper and unfair disparity, … If carried to its logical conclusion, the process would end up by imposing unfair pressures on the victims of crime or the survivors of crime resulting in death, to play a part in the sentencing process which many of them would find painful and distasteful. It is very far removed from the court being kept properly informed of the anguish and suffering inflicted on the victims by the crime".

5

These principles are encapsulated in the current Practice Direction. This reads:

"III.28 When a police officer takes a statement from a victim, the victim will be told about the scheme and given the chance to make a Victim Personal Statement. The decision about whether or not to make a Victim Personal Statement is entirely a matter for the victim. A Victim Personal Statement may be made or updated at any time prior to the disposal of the case. It will not normally be appropriate for a Victim Personal Statement to be made after the disposal of the case; there may be rare occasions between sentence and appeal when an update to the Victim Personal Statement may be necessary, for example, when the victim was injured and the final prognosis was not available at the date of sentence. If the court is presented with a Victim Personal Statement, the following approach should be adopted:

(a) The Victim Personal Statement and any evidence in support should be considered and taken into account by the court prior to passing sentence.

(b) Evidence of the effects of an offence on the victim contained in the Victim Personal Statement or other statement, must be in proper form, that is a witness statement made under s.9 of the Criminal Justice Act 1967 or an expert's report; and served upon the defendant's solicitor or the defendant if he is not represented, prior to sentence. Except where inferences can properly be drawn from the nature of or circumstances surrounding the offence, a sentencer must not make assumptions unsupported by evidence about the effects of an offence on the victim.

(c) The court must pass what it judges to be the appropriate sentence having regard to the circumstances of the offence and of the offender, taking into account, so far as the court considers it appropriate, the impact on the victim. The opinions of the victim or the victim's close relatives as to what the sentence should be are therefore not relevant, unlike the consequences of the offence on them. Victims should be advised of this. If, despite the advice, opinions as to sentence are included in the statement, the court should pay no attention to them.

(d) The court should consider whether it is desirable in its sentencing remarks to refer to the evidence provided on behalf of the victim. …"

6

We shall return to a number of features of the Practice Direction, after we have noted three further current sources of information. In 2006 a pilot scheme known as the Victims' Advocate Pilot Scheme allowed the families of victims in homicide cases to make a Family Impact Statement in open court. The statement was directed to the effect of the crime on them. The pilot scheme was run at the Central Criminal Court and four other major courts. On 3 May 2006 an appropriate protocol was issued. Dealing with it broadly, the principles which are now contained in the current Practice Direction were applied. In particular, whether presented orally or in writing, the statement was formal evidence, and if the family member chose to give evidence orally, the process would be the same as if he or she were giving evidence in chief, and liable to be cross-examined on the defendant's behalf, and the defendant was to be notified in good time of the contents of any such evidence, so as to enable appropriate forensic decisions to be made.

7

The relevant Guide for Police Officers, Investigators and Criminal Practitioners is entirely consistent with the Practice Direction. It records:

"The VPS is the victim's chance to:

• Explain in their own words how the crime has affected them, either physically, emotionally, financially or in any other way

• Express legitimate concerns, such as feeling vulnerable, fearful, intimidated or worried about the alleged offender being granted bail

• Say if they intend to seek compensation …

• Request referral to Victim Support or to other agencies who might help them.

The VPS must not include the victim's offender about how the offender should be punished. That is for the magistrate or judge to decide."

The Guide continues by indicating that the victim can make a statement at the same time as they make their main witness statement, at a later date, or both, and importantly adds:

"Remember, some victims may not want to make a VPS about how the crime has affected them. This is perfectly acceptable and you should not draw any conclusions if they don't."

8

The recent Report for the Commissioner for Victims and Witnesses in England and Wales...

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    • Court of Appeal (Criminal Division)
    • 10 July 2013
    ...13 The importance of treating such statements as evidence and compliance with the rules of evidence is emphasised by this court in R v Perkins and others [2013] EWCA Crim. 323 where at paragraph 9C and 9D the Lord Chief Justice giving the judgment of the court said this: "The statement cons......
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    • 29 September 2015
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1 books & journal articles
  • SLSA E‐Newsletter
    • United Kingdom
    • Journal of Law and Society No. 43-2, June 2016
    • 1 June 2016
    ...The current changes in Northern Ireland mirror thoseoccurring in England and Wales following Perkins and Others v R[2013] EWCA Crim 323, which found that VPSs are a ‘right’ anda form of evidence to be heard in open court, but excludevictims’ opinions on the sentence. Following this judgment......

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