Sentencing in the Context of Public Disorder
| Author | James Roebuck |
| Published date | 01 February 2012 |
| Date | 01 February 2012 |
| DOI | http://doi.org/10.1350/1740-5580-76.1.15 |
| Subject Matter | Court of Appeal |
lower court. The misuse of s. 6 committal powers have been raised in the
Court of Appeal on a number of occasions, and the frequency of such
appeals seems to be increasing. Certainly, it is an issue which appears to
be missed by magistrates, counsel and indeed judges in the Crown
Court.
Quite recently, the Court of Appeal in R v Qayum [2010] EWCA Crim
2237 took the opportunity to emphasise and reaffirm the duty of ad-
vocates to remind the Crown Court of its sentencing powers and to alert
the court on occasions when it proposes to impose an unlawful sen-
tence. In R v Clarke (1974) 59 Cr App R 298, Lawton LJ observed:
We adjudge that counsel as a matter of professional duty to the court, and
in the case of defending counsel to their client, should always before
starting a criminal case satisfy themselves as to what the maximum sen-
tence is. There can be no excuse for counsel not doing this and they should
remember that the performance of this duty is particularly important in a
case where a man has been committed to the Crown Court for sentencing
pursuant to the provisions of [s. 6 of the 2000 Act].
There are, however, at least two drawbacks to this rhetoric. First, it
assumes that counsel is aware of the distinction between committals
under ss 3 and 6 of the 2000 Act, despite the fact that the courts
themselves appear to miss the difference surprisingly frequently.
Whereas counsel is placed under this ‘professional duty’, the courts have
not placed themselves under a similar duty. Secondly, the observation
by Lawton LJ also fails to address the problem as it arose in the present
case: the issue here was not simply that the Crown Court imposed an
illegal sentence due to committal under s. 6. This was not a case of the
Crown Court simply overstepping its powers. Rather, part of the prob-
lem lay in the fact that the magistrates committed the offender under the
wrong provision. Placing a burden on counsel to alert the Crown Court
of its sentencing powers does not address this issue; the distinction
between ss 3 and 6 needs to be drawn at the magistrates’ court prior to
that court electing which provision to...
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