The Practical Lawyer

Without definitive guidance from the Sentencing Council, proposals of the Sentencing Advisory Panel were not yet binding on sentencers.

In a recent appeal, two appellants (A) unsuccessfully appealed their prison sentences for being knowingly involved in the fraudulent evasion of the prohibition on the importation of cocaine.

Directions given by the Judicial Studies Board were not a binding authority without approval or adoption by the CA’s criminal division.

The appellant (A) unsuccessfully appealed his conviction for murder, the jury not having accepted his defence of diminished responsibility.

Granting bail was a matter for the courts and it was not for the CPS to give a defendant an expectation that he would be granted bail.

A claimant, B, was refused bail by the CC and unsuccessfully applied for judicial review. He argued that court had not been entitled to look at bail afresh in the absence of a relevant change in circumstances and without new relevant facts, and that the CC’s decision was irrational and amounted to frustration of his legitimate expectation that he would be granted bail (as the CPS had not opposed it until the very end of the proceedings).

Greater efforts were necessary to ensure judges had the correct information to ensure credit for time spend on bail was applied in relation to electronic monitoring. In a recent case, the CA gave useful guidelines for sentencing judges:

Sentencing judges should adopt the formula: ‘The defendant will receive full credit for the full period of time spent in custody on remand and half the time spent under curfew if the curfew qualified under the provisions of s240 [of the Criminal Justice Act 2003]. On the information before me the total period is… days but if this period is mistaken, this court will order an amendment of the record for the correct period to be recorded.’ This is so that errors could be corrected in the court office.

Practitioners should note the new provisions for hearings under s17 Protection from Harassment Act 1997, as amended by the Domestic Violence, Crime and Victims Act 2004. For hearings after 30 September 2009:

The fact that few people would disagree that knife-related killings and the sale of class A drugs were serious issues, and that many people have strong views on the criminal justice system, did not necessarily mean there was a risk of bias in jury deliberations of an offence involving a knife killing and drugs.

The mere fact that (as a matter of scientific certainty) a proposition consistent with innocence could not be ruled out did not justify withdrawing the case from a jury. Juries must consider expert evidence in the context of all the other relevant evidence and make judgments based on real possibilities.

Section 240A CJA 2003, relating to ‘time spent’, only applied if the offender was remanded on bail after s21 CJA came into effect. It did not, therefore, apply to a period on bail before 3 November 2008, subject to what were to become relevant conditions on that date.

Where there was a conspiracy to supply drugs, the best way of describing and encapsulating its particular criminality, given that it had been operating for a considerable period of time, was to charge separately.

Practitioners should note major changes to the sentencing of young offenders under the Criminal Justice and Immigration Act (CJIA) 2008.

Referral orders are now mandatory if the offence is imprisonable and a first-time offender pleads guilty, and the court does not deal with it by way of absolute discharge, hospital order or custodial sentence. Discretionary referral orders are available in special prescribed circumstances, including where there are no previous convictions, where an offence is admitted.