Update: crime

Unreasonable indication

The Divisional Court has issued guidance on the position where one court adjourns a case for sentence and indicates the level of sentence to be imposed, but a later court takes a different view and imposes a more severe sentence.

In Thornton v Crown Prosecution Service [2010] EWCA 346 Admin, a lay bench indicated that a medium community penalty would be a suitable disposal and did not warn the defendants that this did not amount to a guarantee that a non-custodial sentence would be imposed. The magistrates' attention was not drawn by the prosecution or their adviser to the guidelines on this type of offence (it was a violent public order offence). Reports were obtained, and the case came back before a different bench, this time a district judge. He imposed prison sentences, albeit suspended with conditions. The High Court answered the following questions:

1. Where an indication has been given that is inconsistent with guidelines, and no reason has been given for the departure, can the defendant be said to have a legitimate expectation?

2. Does such an indication override the statutory duty to have regard to the relevant guidelines?

3. Did the district judge err in law by diverging from the earlier indication?

The court supported the district judge's approach. The lay bench were criticised for their comments. They failed to have regard to the guidelines, gave an unreasonable indication, and it was one that no court properly directed could have reached. Therefore, the judge 'was not bound by that indication'. While reiterating that all cases are fact sensitive, Lord Justice Aitkens said: 'It is imperative that magistrates do not put themselves in a position which binds the hands of another bench on the question of sentence unless they are absolutely certain that it is the right course to take. Forms can be used and forms of words used to ensure that there is no expectation of sentence, legitimate or otherwise, in the minds of the defendants or their advisers.'

Standard directions of law

Practitioners appearing in the Crown Courts need to be alert to a recent case concerning directions of law to be given to a jury. It has always been good practice for a judge to discuss matters of law with the advocates before speeches to clarify directions of law.

In Hayes [2010] EWCA Crim 773, the Court of Appeal upheld a conviction where the complaint was that one of the judge's directions to the jury did not conform to the Judicial Studies Board model direction. This argument was firmly rejected by the court, which stated that 'model directions' were 'examples which may be helpful to judges in framing a direction that is suited to the individual case. It is fundamentally to misunderstand the nature of the JSB and the materials provided by it to treat any of its materials as carrying the force of law at all.'

The judgment reflects the approach to summing a case up, reiterated in the current Crown Court Benchbook: 'The objective has been to move away from the perceived rigidity of specimen directions towards a fresh emphasis on the responsibility of the individual judge in an individual case to craft directions appropriate to that case.'

Sentencing guidelines

Advocates will by now have become used to judges asking: 'Where in the guidelines do you say this offence fits?' It is good law to have a degree of certainty about the outcome, but there is scope for departure from the guideline 'if satisfied it would be in the interests of justice to do so' (section 125 of the Coroners and Justice Act 2009).

Lord Justice Leveson has said the Sentencing Council aims to encourage a clear, fair and consistent approach to sentencing that makes people feel confident about sentencing by providing clear information on how judges make decisions. But what about consultation documents, and in particular draft proposals issued by the (then) Sentencing Advisory Panel?

Until the Court of Appeal decided the sentence appeals of Valentas and Tabuns [2010] EWCA Crim 200, the approach had been one of extreme caution. There is currently a draft document concerning tariffs in drugs cases. Counsel in this case sought to rely on it as establishing guidance on appropriate levels of sentence. The court gave this argument short shrift, stating: 'For individual judges to guess in advance the form (that definitive guidelines will take) will be productive of inconsistency and indeed incoherence.'

Trial by ambush

In R v Penner [2010] EWCA Crim 1155 the Court of Appeal issued another stark reminder of 'the necessity of compliance with the Criminal Procedure Rules'.

The defendant, charged with making indecent images of children, took his case to trial. He did not give evidence, just as he had failed to give any comment in his police interview. The single issue in the trial was whether the defendant had made the photographs. After the close of the prosecution case, defence counsel made a submission of no case to answer in which he raised, for the first time, a second issue as to whether the photographs had been made in the UK or elsewhere. The trial judge dismissed the defence submission on both issues and the defendant was convicted.

Dismissing the appeal, the Court of Appeal stressed that the Criminal Procedure Rules had abolished 'trial by ambush'. Thomas LJ said: 'This case is an ample demonstration of why it is essential that counsel at the PCMH stage carefully examine and identify the issues. As counsel in this case failed to do so, when the point, as he tells us, occurred to him in the course of cross-examination, it was then his duty to have identified it to the judge, before going any further with his cross-examination. He should not have left the matter for half time. He should have told the judge that there was a new issue and asked the judge how this matter should be dealt with.'

It is noteworthy that the Court of Appeal readily accepted defence counsel's claim that the second issue had only occurred to him mid-trial. Nonetheless, and following R v Ensor [2009] EWCA Crim 2519, this case reflects the increasingly robust approach of the courts to the defence flouting, deliberately or otherwise, the Criminal Procedure Rules.

The ambit of this decision goes beyond the duties of counsel and extends to case management duties generally. Solicitors should identify all of the issues in the case in advance of PCMH and, for the sake of completeness, to include them in the defence statement. As this case shows, the starting point when identifying those issues must always be the statutory provision that creates the offence.

Advocacy skills

We have all had experience of good, bad and indifferent advocates. It doesn't matter if they are barristers or solicitors, because it is the quality of justice and the public that ultimately suffer. Judges have felt 'increasingly constrained and frustrated by their inability to deal with advocacy standards'.

To combat falling standards there are proposals for a compulsory advocacy accreditation process. In a consultation paper issued this August, the Joint Advocacy Group (JAG) has set out proposals for a criminal advocacy assurance scheme, to be implemented in July 2011. It is anticipated that all criminal advocates including legal executives and Queen's Counsel will be assessed according to threshold standards.

Currently there only three grading standards for advocates. The Crown Prosecution Service has its own scheme to allocate levels to prosecuting advocates. This is based on feedback and observation of advocates in action. Queen's Counsel undergo a difficult competition and selection process. Higher Court Advocates undergo a limited amount of training before being granted advocacy rights. They are not graded, and theoretically can undertake any type of case in the Crown Courts and above.

The JAG proposes that advocates are assigned one of four levels and that assessments of quality at the two highest levels should be 'particularly robust' and will require judicial evaluation. The scheme suggests that judges should identify poor advocates and recommend them for further training.

The scheme is a joint proposal from the Bar Standards Board, Solicitors Regulation Authority and ILEX Professional Standards.

Fighting corruption '“ the Bribery Act

The Bribery Act received Royal Assent on 8 April 2010 and will come into force in April 2011. The Ministry of Justice has boldly stated: 'The Act will ensure the UK is at the forefront of the battle against bribery and pave the way for fairer practice by encouraging businesses to adopt anti-bribery safeguards.'

Features of the new Act include:

• the introduction of a corporate offence of failing to prevent bribery;
• the introduction of a criminal offence of giving/offering and requesting/receiving a bribe; and
• an increase in the maximum sentence from seven to ten years' imprisonment.

The Act is short (20 sections and two schedules), well-drafted and may be seen as long overdue. Bribery, or corruption, is currently prosecuted as being contrary to either common law or a variety of old statutes, including the Public Bodies Corrupt Practices Act 1889.

Criminal and regulatory solicitors should familiarise themselves with the Act with a view to advising their clients. Corporate clients, in particular, would greatly benefit from advice on adopting anti-bribery safeguards which will afford them a defence under section 7(2) of the Act.