Procedural issues and ancillary orders

Section 148 of the Powers of Criminal Courts Sentencing Act 2000 empowers a court to make an order, on conviction for a theft offence orwhere one is taken into consideration on another c

CHAPTER 11

Procedural issues and ancillary orders

The main aim of this chapter is to draw together most of the significant dural steps in sentencing, but the second part of the chapter focuses on a majordevelopment in sentencing that will be further highlighted in Chapter13below –the expanding availability and use of preventive and other ancillary orders at thesentencing stage As a prelude to that discussion the first part of the chapter sum-marizes the framework of sentencing Afterwards, the third part sets out variousrequirements to give reasons Following that, brief consideration is given to severalissues arising in procedural context Thus, before a court passes sentence in any caseother than a minor summary one, there will usually be either a trial or, if the pleawas guilty, a prosecution statement of facts In some cases these provide the courtwith an insufficient basis on which to pass sentence: what is to be done? Again, whatrole do the advocates for prosecution and defence play in relation to sentencing,and what role should they play? When should pre-sentence reports be relied upon

proce-by sentencers? What place do victims have in the sentencing process, and what roleshould they have?

11.1 The sentencing framework of the 2003 Act

The framework of sentencing established by the Criminal Justice Act 2003 has beenmuch discussed in Chapters9and10above, and the present summary eschewsdetailed statutory references in order to convey the essence of the decision-makingscheme The following sequence begins with the least onerous sentence and endswith the most onerous

Is an absolute or conditional discharge sufficient?

Is the case suitable for a fine (which may be substantial enough to come close to the custodythreshold)?

Is the case serious enough to warrant a community sentence?

Is the offence so serious that neither a fine alone nor a community sentence can be justified,and therefore a custodial sentence is unavoidable?

If the case passes the custody threshold, are there factors indicating that the sentence mayeither (i) be suspended or (ii) take the form of intermittent custody?

332

11.2 Ancillary orders 333

If neither of those alternatives is possible and an immediate custodial sentence is able, what is the shortest term commensurate with the seriousness of the offence (bear-ing in mind the effect of the early release provisions of the 2003 Act which indicate areduction of some 15 per cent on previous levels)?

unavoid-Is the case one to which a minimum sentence applies? Or

Is the case one to which the dangerousness provisions (life imprisonment, imprisonmentfor public protection or extended sentence) applies?

This is a simplified framework It is phrased in terms of sentencing for a singleoffence, and we saw in Chapter8that sentencing for more than one offence bringsvarious other complications The framework leaves out of account the court’s duty

to consider making a compensation order (see Chapter10.4above), and also ious duties relating to the ancillary orders set out in part11.2below It also takes

var-no account of the statutory requirements on aggravating and mitigating factors,examined in Chapters5and6above

11.2 Ancillary orders

This part of the chapter sets out several of the many ancillary orders available tocourts in criminal proceedings In part 11.2.1 below there is discussion of three pri-vatory orders, the purpose of which is to take from an offender something that he orshe should not retain In part 11.2.2 below the focus switches to preventive orders,the purpose of which is to prevent the offender from engaging in certain sorts ofactivity thought to represent a risk to others Behind these two categories of ancillaryorders lies a further distinction, between punishment and prevention In the context

of the European Convention on Human Rights, it is often important to determinewhether a particular order amounts to a penalty (i.e a punishment) or is merely pre-ventive If an order has a significant punitive element (even though it is also to someextent preventive), it must comply with certain standards In particular, it must notoperate retrospectively (Art 7), its ambit must be clear (Art 7), and it must only beimposed after all the safeguards appropriate to a criminal charge have been observed

(Art 6(3)) Thus in Welch v UK (1995)1the European Court of Human Rights heldthat the confiscation procedures of the Drug Trafficking Act 1986 violated Article 7

of the Convention by imposing a retrospective penalty on the offender Section 38(4)

of the Act did expressly give retroactive effect to the powers of confiscation, provided

the defendant had been charged after the Act came into force The key question was

therefore whether a confiscation order was a ‘penalty’ In deciding that it was, thecourt noted that the measure had punitive as well as preventive and reparative aims;that the order was calculated by reference to ‘proceeds’ rather than profits; thatthe amount of the order could take account of culpability; and that the order was

enforceable by a term of imprisonment in default In Ibbotson v UK (1997),2by

1 (1995) 20 EHRR 247 2 (1999) 27 EHRR CD 332.

contrast, the European Commission on Human Rights held that the notificationrequirement under the Sex Offenders Act 1997 was not a ‘penalty’, since it wasless severe than confiscation, there was no provision for imprisonment in default(a separate prosecution would have to be brought), and it was preventive ‘in thesense that the knowledge that a person has been registered with the police may dis-suade him from committing further offences’ This preventive/punitive distinctionwill be referred to as the various ancillary orders are discussed.

11.2.1 Privatory orders

Three forms of order that deprive the offender of some asset are set out here –restitution orders, deprivation orders and confiscation orders

1 Restitution orders Section 148 of the Powers of Criminal Courts (Sentencing)

Act 2000 empowers a court to make an order, on conviction for a theft offence (orwhere one is taken into consideration on another charge), requiring the offender torestore to the victim the property stolen, or goods representing that property, or asum equivalent to the value of the stolen property that was taken from the offender’spossession on arrest It will be seen that the conditions for making this order areprecise, and it is relatively rare for courts to make restitution orders

2 Forfeiture orders Section 143 of the PCCS Act 2000 empowers a court to

make an order depriving the offender of any property used (or intended for use)

in committing or facilitating the commission of the offence, which was lawfullyseized from the offender or under his control at the time of arrest or summons.Subsections (6) and (7) make it clear that a number of motoring offences fall withinthe rubric of ‘facilitating the commission of the offence’, and so a court may orderthat the offender be deprived of a car for the offence of driving whilst disqualified

However, as the Divisional Court held in Highbury Corner Stipendiary Magistrate,

ex p DiMatteo (1990),3the court must also request or receive information aboutthe financial impact on the offender before making the order The decision alsoemphasizes the importance of regarding the order as part of the total sentence onthe offender, which ought not to be out of proportion with the seriousness of the

offence(s) In Ball (2003)4 the Court of Appeal quashed a deprivation order inrespect of a Mercedes car with a personalized number plate, used in facilitatingtheft, on the grounds that the judge had failed to give counsel the opportunity toaddress the court in relation to a forfeiture order and its possible effects, and failed

to follow the statutory requirement to make an estimate of the value of the propertybefore deciding whether to make the order

3 Confiscation orders For several years there has been a mandatory procedure

for the confiscation of the proceeds of drug trafficking, most recently under theDrug Trafficking Act 1994, and also a procedure for the confiscation of the proceeds

of other forms of crime, under the Criminal Justice Act 1988 These two statutesremain in force in respect of events occurring before March 2003, whereas events

3 (1990) 12 Cr App R (S) 263 4 [2003] 2 Cr App R (S) 92.

11.2 Ancillary orders 335

and offences occurring after that date are covered by the Proceeds of Crime Act

2002 This statute is an extensive and detailed piece of legislation, and it sufficeshere to mention the principal provisions of part2of the Act Where an offenderhas been convicted in the Crown Court, the judge must initiate the confiscationprocedure if there is an application from the prosecution or the judge believes that

it is appropriate to do so (s 6) The next step depends on whether the judge decidesthat the offender has a ‘criminal lifestyle’ or not Section 75 sets out the elements of

a ‘criminal lifestyle’, in terms of being convicted of one of a listed group of offences,

or of ‘conduct forming part of a course of criminal activity’ If the court decidesthat the offender has a ‘criminal lifestyle’, it must make certain assumptions aboutproperty possessed by the offender in the previous six years (s 10) If the courtdecides that the offender does not have a ‘criminal lifestyle’, it must decide whether

he has benefited from the particular criminal conduct in the case – not using theassumptions in s 10, but possibly requiring the offender to furnish information onpain of adverse inferences (s 18) Section 7 prescribes the way in which the courtshould arrive at the ‘recoverable amount’, and s 9 prescribes what deductions andadditions may be made The court may then make an order, and must at the sametime fix a term of imprisonment in default of payment

The desirability of depriving criminals of the proceeds of their crime was cussed in Chapter3.3.8above and has received recognition from the Council ofEurope, in its Convention of 1990 on Laundering, Search, Seizure and Confisca-tion of the Proceeds of Crime One may take leave to doubt, however, whether thedraconian powers and deprivation of normal rights now built into the Proceeds

dis-of Crime Act are justifiable or necessary The courts are permitted to proceed onassumptions which sometimes have an extremely flimsy basis

11.2.2 Preventive orders

The discussion now moves to several preventive orders, beginning with three forms

of disqualification and then moving to various prohibitions and restrictions

1 Disqualification from driving Although sometimes regarded as an ancillary

penalty, the court’s power to disqualify road traffic offenders from driving mayproperly be treated – as it is by most recipients – as the primary penalty Thedetailed rules may be found in the Road Traffic Act 1988 Disqualification fromdriving for at least 12 months is mandatory following the offences of driving withexcess alcohol, failure to provide a sample for testing and causing death by recklessdriving Only in cases where ‘special reasons’ are found can the mandatory period

of disqualification be avoided Disqualification also ensues when an offender mulates 12 penalty points as a result of two or more offences, and it is a discretionarypenalty for various offences connected with motoring, such as taking a car with-out the owner’s consent There are also provisions in ss 146–147 of the Powers

accu-of Criminal Courts (Sentencing) Act 2000 empowering courts to disqualify fromdriving any person who uses a vehicle for the purposes of crime, or any personconvicted of an offence It appears that, in general, the length of disqualification

is influenced less by proportionality to the current offence than by the prevention

of probable danger, to which the offender’s driving record as a whole is relevant;but it is established that account should be taken, when setting a lengthy period ofdisqualification, of the effect on the offender’s future prospects of employment andtherefore of law-abidance.5

2 Disqualification from acting as a company director The power to disqualify

a person from acting as a director of a company was granted by the CompanyDirectors Disqualification Act 1986 It is most frequently exercised in cases involvingfraudulent trading or similar offences:6orders of over 10 years up to the maximum

of 15 years should be reserved for very serious cases, with orders in the 6–10 yearrange more appropriate for offences committed over a shorter period of time andyielding less money.7 It is unlikely that such emphasis should be placed on theoffender’s future prospects of employment, since the order – although fairly wideranging – does not disqualify the person from being an employee

3 Disqualification from working with children Section 28 of the Criminal Justice

and Court Services Act 2000 empowers a court to disqualify from working withchildren, indefinitely, an offender convicted of a sexual offence against a child.8Acourt has a duty to make an order where the offender is aged 18 or over and thecourt has imposed a custodial sentence of 12 months or more; it has the power

to make an order where the offender is under 18 or the court has not imposed a12-month sentence on conviction The duty to make the order applies unless thecourt is satisfied that it is unlikely that the offender will commit any further offencesagainst a child Such an order is for an indefinite period, although there may be

an application to discharge it It appeared possible to construe the Act as requiring

an order to be made when a trigger offence had been committed before the Actcame into force, and so it was crucial to determine whether it was a ‘penalty’ (noretroactive effect permitted) or merely a preventive order (which could operate

retrospectively) In determining this question in Field and Young (2003),9the Court

of Appeal laid considerable weight on the fact that the order applies both where aperson is convicted and where a person is found to be either unfit to plead or notguilty by reason of insanity, and concluded:

It seems to us of considerable importance that a conviction is not a necessary conditionfor the making of such an order When one considers the nature and purpose of such

an order it points overwhelmingly to this being for preventative rather than punitiveeffect Precisely the same order is made whether a person is convicted or not and themaking of the order has no regard to the extent or seriousness of the offending butrather to whether a repetition of the conduct is likely.10

5 E.g Doick [2004] 2 Cr App R (S) 203 6 E.g Edwards [1998] 2 Cr App R (S) 213.

7 Millard (1994) 15 Cr App R (S) 445 (eight years appropriate for fraudulent conduct lasting

four years and yielding some £700,000).

8 For 2003 amendments, see Taylor, Wasik and Leng ( 2004 ), pp 231–2.

9 [2003] 2 Cr App R (S) 175 10 Ibid., at para 58 per Kay LJ.

11.2 Ancillary orders 337

The Court therefore held that the order could operate retrospectively, since it

is not a penalty and therefore not caught by Article 7 However, the reasoning isflawed If the main arguments had been the preventive purpose and the fact that theeffect of the prohibition was not unduly severe, that would arguably have been inline with earlier decisions But the Court appeared to think that it would be difficult

to regard the order as preventive if it could only be made after a conviction, andthus rested its conclusion on the provision for the making of an order after a finding

of insanity or disability in relation to the trial This is manifestly unsatisfactory: thewhole point of that provision is to treat the severely mentally disordered (for thesepurposes) as if they had been convicted, rather than to suggest that these orders can

be made generally on persons who have not been convicted The Court of Appealplaced form above substance, and it seems highly unlikely that the Strasbourg Courtwould yield to a device which, if approved, could be deployed widely by draftsmen

to transform truly punitive orders into preventive orders The decision in Welch11demonstrates that such devices would be caught by the anti-subversion doctrine Is

it really suggested that, if the Drug Trafficking Act 1986 had provided for the making

of confiscation orders not only on conviction but also after a finding of insanity or

unfitness to plead, the Court in Welch would have reached a different conclusion

and found the orders to be non-punitive?

4 Sexual offences prevention orders Section 104 of the Sexual Offences Act 2003

empowers a court which has convicted an offender of a listed offence to make

a sexual offences prevention order, if it is satisfied that this is necessary for thepurpose of protecting one or more others from serious sexual harm The terms ofthe order may prohibit an offender from doing ‘anything described in the order’ for

a period of at least five years (s 107) It is also possible for the court to make such

an order outside criminal proceedings, on application by the police.12The contents

of a SOPO are entirely negative or preventive, and may include a prohibition onmaking any contact or communication with a person under 16 and not residing in

a private dwelling where there is a child under 16.13

5 Risk of sexual harm orders Section 123 of the Sexual Offences Act 2003

empow-ers a magistrates’ court to make a risk of sexual harm order on application fromthe police, in respect of a person who has on two or more occasions engaged insexually explicit conduct or communication with children The police may applyfor this order in respect of someone who has a conviction or a person without anyconviction: it appears that the police may apply to a court at the sentencing stageand invite it to make this order The court must only make an order if satisfied that

11 Above, n 1

12 For commentary on this and the other preventive orders in sexual cases, see Shute ( 2004 ) That article also deals with the foreign travel order (s 114 of the SOA 2003), which can only be made

on application from the police and on evidence of conduct since a relevant conviction.

13 Cf B v Chief Constable of Avon and Somerset [2001] 1 WLR 340, where an unsuccessful challenge

to the compatibility of SOPO’s predecessor, the sex offender order, with the Convention was mounted.

it is necessary to protect one or more children from physical or psychological harm.Again, the essence of the order is a prohibition on ‘doing anything described inthe order’ for at least two years This is a particularly controversial power because

it applies equally in respect of persons who have never been convicted, so long asthe court receives evidence satisfying it as to the past conduct and future danger tochildren.14

6 Travel restriction orders Section 33 of the Criminal Justice and Police Act 2001

requires courts to consider making a travel restriction order whenever they sentence

an offender to four years or more for a drug trafficking offence Guidance on the

proper use of the power was given in Mee (2004),15where the Court of Appealrecognized that if the offence appeared to be opportunistic rather than part of apattern, it might not be necessary to make an order If a court apprehends a risk offurther offences, it should make an order of a length appropriate to the degree ofrisk it finds, having invited submissions from counsel

7 Football spectator banning orders Section 14A of the Football Spectators

Act 1989 (as amended by the Football (Disorder) Act 2000) provides that, on viction of a relevant football-related offence, a court must make a banning order inrespect of designated football matches if it is satisfied that this would help to preventviolence and disorder in connection with regulated football matches If the court isnot so satisfied, it must state this in open court and give its reasons Banning ordersmay also be imposed by magistrates on application from the police The duration

con-of the order depends on the sentence imposed for the conviction: if immediateimprisonment is imposed, the order must be between 6 and 10 years, but in othercases it must be between three and five years.16A banning order is not a penalty but

is merely a preventive order, although it has been held that the standard of proofshould be equivalent to that in criminal proceedings.17

8 Exclusion from licensed premises orders Under the Licensed Premises (Exclusion

of Certain Persons) Act 1980 a court which is dealing with an offence committed onlicensed premises which involved the use or threat of violence may make an exclusionorder, excluding the offender from certain premises for a period of between threemonths and two years The power should generally not be used for isolated incidents,but reserved for persistent nuisances.18However, in Arrowsmith (2003),19where anoffender with previous convictions for violence was imprisoned for 12 months forassault occasioning actual bodily harm on another customer in a public house, thejudge had made an order excluding the offender from all 165 licensed premises inthe area of his residence for 18 months The Court of Appeal held that this was notmanifestly excessive, in view of the offender’s history and the risk it suggested, butthat procedurally all the premises had to be individually named

14 See Shute ( 2004 ), p 431 15 [2004] 2 Cr App R (S) 434.

16 For an example of a three-year order, see O’Keefe [2004] 1 Cr App R (S) 404.

17 Gough v Chief Constable of Derbyshire [2002] QB 459.

18 Grady (1990) 12 Cr App R (S) 152. 19 [2003] 2 Cr App R (S) 301.

11.2 Ancillary orders 339

9 Anti-social behaviour orders Most of the prohibitions imposed under the

orders listed above can also be brought about by the anti-social behaviour order,the broadest of the courts’ powers to impose preventive restrictions As outlined

in Chapter6.6above, a court may make an ASBO either on application from thepolice, local council or others, or as an order following conviction Most orders arenow made on conviction The court has to be satisfied that the offender has causedharassment, alarm or distress amounting to anti-social behaviour It may thenmake an order, for a minimum period of two years, that prohibits the offender fromdoing anything described in the order The number and breadth of the conditionsmay be considerable,20and the breach rate is around 42 per cent On breach anoffender commits an offence punishable with up to five years’ imprisonment This

is a much higher penalty than is available for many criminal offences, and yet in Hall

(2005)21the Court of Appeal accepted that the ASBO may be used to circumventthe (lower) maximum penalty for an offence Parliament has provided a maximum

of six months’ imprisonment for driving whilst disqualified The court in this casehad made an ASBO prohibiting the offender indefinitely from driving a motorvehicle on any road in the United Kingdom without holding a valid driving licenceand certificate of insurance Breach of that condition would open up a maximumpenalty of five years This is yet another unsatisfactory feature of the ASBO

10 Preventive orders and sentencing for breach It is manifest from the foregoing

paragraphs that the range of preventive orders is wide, and that they are capable ofbeing very restrictive They are entirely negative in content, and include no provisionfor support or for constructive activities Yet the penalties for breach are high, many

of them having a maximum sentence of five years for breach As already stated,this maximum is often higher than would be available if a substantive offence werecharged The use of custody for breach is frequent: for ASBOs, the breach rate is

42 per cent, and of those some 55 per cent overall (and 45 per cent of juveniles)are sent into custody.22In sentencing for breach of any preventive order, the courtshould take account of the nature of the conduct amounting to a breach, and whether

it was a single incident or persistent Persistent serious breaches have been held tojustify a sentence as high as three-and-a-half years,23whereas lesser breaches of arestraining order (now a sexual offences prevention order) have been sentenced

in the 12–18 months range.24In Clark (2003)25it was held that the court shouldhave regard to the maximum, so that a three-year sentence on a plea of guilty for

a non-serious breach of a restraining order was too high (since it was equivalent

20 Cf C v Sunderland Youth Court [2004] 1 Cr App R (S) 443, where the Divisional Court granted

judicial review of an order that prohibited the offender from ‘exhibiting any behaviour towards any individual or group which would cause them harassment, alarm or distress’, on the ground that this was too vague and uncertain The magistrates had also failed to consider whether an area

of application so wide as the whole of Sunderland was necessary.

21 [2005] Crim LR 152 22 Home Office press release 042/2005.

23 Braxton [2005] 1 Cr App R (S) 167, discussed in ch.6.6 above.

24 Clark [2003] 1 Cr App R (S) 6, Wilcox [2003] 1 Cr App R (S) 199.

25 [2003] 1 Cr App R (S) 6.

to about four years on a conviction) Nevertheless, there are many ASBO cases

in which the courts use custody for breach and where the conduct was relativelyminor The effect is not only disproportionality of sentencing but also the taking

of many non-serious offenders up the tariff at an early stage – an observationparticularly relevant to young offenders But the fault lies earlier in the process too,since the imposition of multiple conditions on young offenders26is inappropriate,and particularly inappropriate without an element of supervision It is, in truth,setting a person up to fail

11.3 The obligation to give reasons for sentence

It is a fundamental tenet of natural justice that decision-makers should give reasonsfor their decisions, and the argument is surely at its strongest where the decisionsaffect the liberty of the subject The case for reasoned decisions in sentencing istherefore unanswerable in principle,27 and is now reinforced by Article 6 of theConvention as a result of the Human Rights Act 1998 Offenders should be able toknow the reasons for sentences imposed upon them The public also has an interest

in knowing The duty to give reasons may conduce to decisions which are moreconsidered and more consonant with legal principle And the giving of reasonsenables appellate courts better to assess the appropriateness of a sentence which hasbeen challenged on appeal

What counts as a reason for sentence? Clearly, a kind of moral expostulationabout the offence, ‘one of the worst of its kind’, ‘a dreadful and brutal attack’, ishardly enough on its own To amount to a ‘reason’, the sentencer’s remarks mustsurely link the sentence to general levels of sentence for that kind of offence, and toother general principles It has long been established that a court should make some

effort to explain the length of custodial sentences In the case of Newman, Newman

and Myers (1979)28the judge had simply meted out sentences of three, four andfive years’ imprisonment without any comment or embellishment Lord Widgery

CJ held in the Court of Appeal that it is wrong, when sentences of that severity arepassed, for a judge to give no clue as to how the sentences were arrived at Similarly,

in Attorney General’s Reference (No 23 of 1992) (1993)29Lord Taylor CJ chided arecorder for failing to give reasons:

The learned recorder did not specify any reasons or explain the process by which shearrived at that sentence It may be that if those who have to pass sentence do give somereasons for the sentence they pass, that brings them to consider the effect which thesentence they are minded to impose might have and the public perception of it.This passage emphasizes the importance of explaining the process by which thecourt arrived at its sentence, and this means that the idea of giving reasons needs

26 The use of ASBOs for mentally disturbed people is also a matter of concern, not least because of the absence of support as part of the order.

27 Thomas ( 1963 ) 28 (1979) 1 Cr App R (S) 252 29 (1993) 14 Cr App R (S) 759.

11.3 The obligation to give reasons for sentence 341

to be developed carefully As the Council of Europe’s 1992 recommendation on

‘Consistency in Sentencing’ proposed,

E.1 Courts should, in general, state concrete reasons for imposing sentences In ticular, specific reasons should be given when a custodial sentence is imposed Wheresentencing orientations or starting points exist, it is recommended that courts givereasons when the sentence is outside the indicated range of sentence

par-E.2 What counts as a ‘reason’ is a motivation which relates the particular sentence tothe normal range of sentences for the type of crime and to the declared rationales ofsentencing

Along these lines is the latest statutory provision on the duty to give reasons for,and explain the effect of, sentences Section 174(1) of the Criminal Justice Act 2003provides:

Subject to subsections (3) and (4), any court passing sentence on an offender –

(a)must state in open court, in ordinary language and in general terms, its reasons fordeciding on the sentence passed, and

(b)must explain to the offender in ordinary language –

(i) the effect of the sentence,

(ii) where the offender is required to comply with any order of the court formingpart of the sentence, the effects of non-compliance with the order,

(iii) any power of the court, on the application of the offender or any other person,

to vary or review any order of the court forming part of the sentence,

(iv) where the sentence consists of or includes a fine, the effects of failure to paythe fine

Subsection (2) emphasizes that compliance with subsection 1(a) requires thecourt to explain why the appropriate threshold is passed, that is why the offence isserious enough to warrant a community sentence, or why the offence is consideredtoo serious for a fine alone or community sentence Subsection (2) also adds therequirement to give an explanation where the court reduces the sentence for a guiltyplea, and where any aggravating or mitigating factors are of particular importance.Subsection 2(a) states that a court must

where guidelines indicate that a sentence of a particular kind, or within a particularrange, would normally be appropriate for the offence and the sentence is of a differentkind, or is outside that range, state the court’s reasons for deciding on a sentence of adifferent kind or outside that range

This reinforces the effect of the court’s duty to have regard to definitive tencing guidelines,30but this subsection applies to guidelines generally – presum-ably applying equally to those laid down by the Court of Appeal.31In addition tothese statutory requirements, there is a Practice Direction requiring a court to give

sen-30 S 172 of the 2003 Act 31 See the discussion in ch 1.5.3 above.

a full explanation, when imposing a custodial sentence, of the applicable releaseprovisions.32

Beyond all these duties of explanation, there is now the emergence of an gation on judges to be more explicit about the calculations that lead them to aparticular sentence – particularly in respect of custodial sentences, but not exclu-sively so Thus the guideline judgment on sentencing in cases of racial aggravationstates that courts ‘should say, publicly, what the appropriate sentence would havebeen for the offence without the racial aggravation’,33thus making it clear what wasadded to take account of the aggravating factor Similarly, the Council’s guideline

obli-on the guilty plea discount goes further than s 174(2), mentiobli-oned above, by mending that ‘the court should usually state what the sentence would have been ifthere had been no reduction as a result of the guilty plea’.34This applies to all courtsand to all forms of sentence Whether obligations of this kind will become moredetailed remains to be seen, but even these two obligations are significant steps inthe direction of transparency in sentencing, with benefits both to the public and tocounsel and appellate tribunals

recom-11.4 The factual basis for sentencing

Even after a full trial on a not guilty plea, the court may not have heard sufficientevidence on certain points to provide a proper factual basis on which to pass sen-tence A carefully controlled trial will concentrate on the legal points at issue: ifthe offence is defined broadly by the law, some points relevant to sentence (e.g.provocation, knowledge of the class of drug possessed) might not be fully dealt withduring the trial Difficulties of this kind are much more likely to occur on a guiltyplea, after which the prosecution may state the facts in one way and the defencemay advance a different version In a system of criminal law which includes manybroadly defined offences, these difficulties are likely to be perpetuated Yet the impli-cations for offenders are considerable, sometimes amounting to the gulf between

a custodial and a non-custodial sentence, or between a long or a shorter term ofimprisonment It is surely wrong that defendants should suffer a disadvantage sim-ply because the legal system happens to assign certain issues to the sentencing stagerather than to the trial process Issues which can affect sentence substantially andwhich are disputed should, as a matter of principle, be resolved only after a pro-cedurally fair examination of the evidence which accords proper safeguards to thedefendant This proposition derives support from the general right to a fair trial inArticle 6.1 of the European Convention on Human Rights, although the Strasbourg

32 Practice Direction (Custodial Sentences: Explanations) [1998] 1 WLR 278, subsequently

consoli-dated in the Practice Directions, but now requiring amendment to take account of the changes in early release under the 2003 Act (see ch 9.5 above).

33 Kelly and Donnelly [2001] 2 Cr App R (S) 341, at p 347 The judgment presumably applies to

religious aggravation, and also to aggravation related to disability or sexual orientation.

34 SGC, Reduction in Sentence for a Guilty Plea (2004), para 3.1.

11.4 The factual basis for sentencing 343

jurisprudence on this aspect of sentencing remains underdeveloped.35How do therules and procedures evolved by the Court of Appeal measure up to principles offairness?

11.4.1 Interpreting a jury verdict

The general principle is that the judge must base the sentence on a version of thefacts which is consistent with the verdict Occasionally, cases arise in which a crucialissue (e.g whether the offender’s acts were intentional or merely reckless; whether

he was the perpetrator or a mere accomplice) is likely to be left unclear when thejury gives its verdict, because the definition of the crime charged does not drawthe necessary distinction Judges are usually discouraged from asking the jury for aspecial verdict in these circumstances, but they may do so As the Court of Appeal

In that case it was unclear whether the manslaughter verdict was based on lack

of intent, provocation or gross negligence The judge’s duty is to reach a conclusion

on the basis of the facts proved during the trial If the judge is left unsure, then thesentence should be based on the version of facts more favourable to the offender

In McGlade (1990)37D had been convicted of the buggery of a young woman oncharges of rape and buggery At this time (i.e until 1994) the offence of buggery

of a woman was committed whether or not she consented, and in this case it wasunclear from the jury’s verdict whether they concluded that she had or had notconsented The judge sentenced D to five years’ imprisonment on the basis thatshe had not consented The Court of Appeal held that this was proper: ‘the learnedjudge, having heard all the evidence himself in the course of the trial, is free and,indeed, it is his duty to come to a conclusion, if he can, upon where the truth lies’

In this case the finding made the difference between five years’ imprisonment and ashort, even perhaps a non-custodial sentence In principle, an issue not concluded

by the verdict (and not relevant to the definition of the offence) should be exploredafter conviction and before sentence, in an adversarial proceeding It appears from

Finch (1993)38that a judge is not allowed to reject a version of facts accepted by thejury without holding a post-conviction hearing (see part11.4.2below for Newton

35 Cf De Salvador Torres v Spain (1997) 23 EHRR 601, where the Court found no violation but

where the Commission discussed the application of the right to have adequate time and facilities for the preparation of a defence (Art 6.3(b)) in relation to statutory aggravating factors.

36 [1996] 2 Cr App R (S) 445, at p 450 37 (1990) 12 Cr App R (S) 105.

38 (1993) 14 Cr App R (S) 226.

hearings); but where the verdict is equivocal, as in Cawthorne and in McGlade,

it seems that no Newton hearing is required However, in those circumstances the

judge must take care to give a reasonably full explanation of the conclusions reached

on the evidence heard.39Where there has been a trial and the jury has convictedonly on the lesser charge, it is clear that the judge should not pass sentence on abasis that presupposes the truth of the rejected evidence.40

11.4.2 Interpreting a guilty plea

Where an offender pleads guilty, the judge does not have the opportunity to hearthe evidence All that is provided are the case papers and the prosecution’s state-ment of facts That statement may disclose that the offence had particularly seriousconsequences, to the extent that a higher offence might have been charged, and thecourt is entitled to sentence on that basis unless there is a defence challenge.41Onthe other hand, the Court of Appeal has laid down that ‘the prosecution should notlend itself to any agreement whereby a case is presented to a sentencing judge to bedealt with on an unreal and untrue set of facts’.42In practice it is not uncommonfor a defendant to submit a written basis of plea, when pleading guilty.43Assumingthat the prosecution gave careful consideration to the statement of facts, the normalcourse will be for the court to pass sentence on that basis However, as Lord Bingham

CJ stated in Tolera (1999),44

If the defendant wishes to ask the court to pass sentence on any other basis than thatdisclosed in the Crown case, it is necessary for the defendant to make that quite clear Ifthe Crown does not accept the defence account, and if the discrepancy between the twoaccounts is such as to have a potentially significant effect on the level of sentence, then

consideration must be given to the holding of a Newton hearing to resolve the issue.

The initiative rests with the defence

This may occur, for example, where there is a disagreement about the extent of

a defendant’s involvement in a crime,45or where criminal liability is strict (i.e noproof of culpability is required) and where the defence contend that the crime wascommitted inadvertently.46If the defence advance in mitigation a version of thefacts which seems to lack foundation, it is the judge’s duty to examine the allegedlymitigating material in order to form of a view about it: this has often occurred indrugs cases, where the offender alleges that all the drugs were for personal use only.47

39 Byrne [2003] 1 Cr App R (S) 338, where the jury’s manslaughter verdict was equivocal between

provocation and lack of intent.

40 Gillespie [1999] 2 Cr App R (S) 61.

41 R v Nottingham Crown Court, ex p DPP [1996] 1 Cr App R (S) 283 (plea of guilty to common

assault, papers disclosed injuries serious enough to justify charge of assault occasioning actual bodily harm).

42 Beswick [1996] 1 Cr App R (S) 343 at p 346.

43 For two recent examples see Attorney General’s Reference No 70 of 2003 [2004] 2 Cr App R (S) 254

at p 256, and Attorney General’s Reference No 60 of 2003 [2004] 2 Cr App R (S) 376 at p 378.

44 [1999] 1 Cr App R (S) 25 at p 29. 45 Anderson [2003] 1 Cr App R (S) 421.

46 Lester (1975) 63 Cr App R 144.

47 See Ribas (1976) 63 Cr App R 147 and many subsequent decisions.