SENTENCING UPDATES
Criminal Justice Act 2003 s.240(A) Crediting of periods spent on an electronically monitored curfew of at least 9 hours a day: terms of imprisonment and detention
NB: This section came into force on the 8th November 2008.
It provides that, the court will, unless it considers that it is not just to do so, give credit against the ultimate sentence of one half the number of days when a defendant has been subject to an electronically monitored curfew of at least 9 hours a day.
In Johnson (RT) v R 2009 [EWCA] Crim 468 (17 March 2009)
The Court of Appeal set down the formula that should be used when imposing a custodial sentence taking into account time spent on remand or on electronically monitored curfew;
"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 s.240. 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."
R v VALERIE EKIUWA OVIERIAKHI [2009] EWCA Crim 452 SENTENCE LENGTH: DISTINCTION BETWEEN USE OF FALSE PASSPORT TO GAIN ENTRY TO UK AND TO OBTAIN WORK “There is a valid distinction to be made between use of a false passport to gain entry and its use to gain work.” The applicant pleaded guilty to possessing a false identity document with the intention of using it for establishing registrable facts about herself, contrary to section 25(1)(a) of the Identity Cards Act 2006. She was sentenced to twelve months' imprisonment. She appealed against her sentence. The facts of this case are as follows; an enforcement team from the Immigration Authority visited a nursing home in Westgate-on-Sea, following information that a Nigerian woman was working there illegally. The appellant said that she had arrived in the United Kingdom in April 2008 as a visitor for six months. It was accepted by the Crown that she had entered the United Kingdom using her own, valid, passport. The appellant had come to this country to help care for a sick relative. She had obtained work in a care home and found that she earned more here than back in Nigeria. She was arrested as an overstayer. The appellant's home was searched. Officers found a false Nigerian passport in the name Valerie Michaels, which contained the appellant's photograph. The appellant accepted that that passport was hers. In interview the appellant admitted possession of the false passport. She stated that when she entered the UK she had not intended to work, but had changed her mind. She had bought the passport so that she could obtain employment. Sheprovided the photograph for it and knew that it was not a genuine document. She would not say who provided it. The appellant is aged 40. She has no previous convictions. She pleaded guilty at the Preliminary Hearing. In allowing the appeal and substituting a sentence of six months imprisonment Mr Justice Christopher Clarke gave the judgment of the court and stated; “Wherever the case is on the spectrum, a custodial sentence is likely, save in exceptional circumstances, for the reasons stated in Carneiro. In cases in which a false passport is to be used for the purpose of securing entry into the United Kingdom, the guidance contained in Kolawole applies. Where, however, a false passport is used to obtain work or a bank account, its use does not enable the offender to obtain entry to the United Kingdom and for that reason it may properly be treated less severely than the use of a passport which does, or may, have that effect. What the use of a passport to obtain work does, however, do is to facilitate the offender remaining in the United Kingdom in breach of immigration controls. For that reason a custodial sentence is usually required. But it can justifiably be less, particularly if the offender is of good character and has done no more than use or try to use it to seek employment in order to maintain himself/herself or his/her family.”
CASE UPDATES
LOSS OF TIME DIRECTIONS : UNMERITORIOUS APPEALS and the use of Criminal Appeal Act 1968 s.29R v JERRY FORTEAN [2009] EWCA Crim 437A renewed application for leave to appeal against conviction and sentence was wholly without merit and a loss of time order was made for a period of six weeks. The court stated that it would impose such orders whenever applications were renewed against all warnings, and the fact that counsel had represented a client would be relevant but not conclusive.The applicant applied for leave to appeal against both his conviction for causing grievous bodily harm with intent and the sentence of four-and-a-half years' imprisonment imposed. The applicant was not legally represented at the instant hearing. A single judge had already considered his application and concluded that there were no arguable grounds of appeal. The judge had given reasons for his decision. The applicant nevertheless renewed his application.It was held that the application was wholly without any vestige of merit. There had been overwhelming evidence against the applicant, and after he was convicted he had admitted his guilt. The application to appeal against sentence was equally without merit. The attack had been cowardly and vicious with a background of unpleasant behaviour towards the same victim, who was left in a badly injured state. Appeals were not built into the trial process, but had to be justified on properly arguable grounds. The court had to cope with over 6,000 applications each year for leave to appeal. It was anxious to deal promptly with those which raised proper grounds, but the court's ability to do so was significantly hampered by meritless applications. For that reason the court had express statutory power under the Criminal Appeal Act 1968 s.29 to order that part of the time spent in custody pending appeal was not to count towards the sentence, Monnell v United Kingdom (A/115) (1988) 10 EHRR 205 ECHR considered. Counsel and solicitors representing the applicant at trial had been paid for by state legal aid. They had a duty to provide the applicant with skilled advice upon whether or not there existed arguable grounds of appeal. The applicant must have either received advice that there were none, or chosen not to seek it. On the application for leave to appeal form there was a very clear printed warning in bold letters that if the single judge was of the opinion that the application was plainly without merit, an order could be made that time spent in custody as an appellant would not count towards sentence. The single judge did not make such an order, but he expressly indicated that the applicant was at risk if he pursued the application. A further warning to the same effect was contained in the renewed application form. The court would exercise its power to make the order to ensure that applications by those who had some proper basis for making them could be dealt with fully and promptly. The instant case could not be clearer.
Accordingly, an order was made that six weeks of the time spent in custody by the applicant was not to count towards his sentence. The court's power under s.29 could be exercised in any meritless application which should not have been pursued after due warning. The fact that counsel or solicitors had associated themselves with such a renewal would be relevant, but it would not necessarily avoid such an order if there was no justification for continuing the case.
CPS DECISION TO DISCONTINUE A PROSECUTION ON THE BASIS THAT THE VICTIM WAS NOT CREDIBLE AS THEY SUFFERED FROM MENTAL HEALTH PROBLEMS WAS IRRATIONAL AND INVOLVED A MISAPPLICATION OF THE CODE FOR CROWN PROSECUTORS.R (on the application of B) v DIRECTOR OF PUBLIC PROSECUTIONS (Defendant) & EQUALITY AND HUMAN RIGHTS COMMISSION (Intervener) (2009) [2009] EWHC 106 (Admin)The claimant applied for judicial review of a decision of the Crown Prosecution Service, for which the defendant Director of Public Prosecutions was responsible, to discontinue a prosecution brought against the interested party (R). The Application was granted.B had suffered a serious assault and had had part of his ear bitten off. He identified R, who he knew, as his attacker. B had a history of psychotic illness, during which he held paranoid beliefs and suffered auditory and visual hallucinations. A medical report was prepared by a psychiatrist who concluded that B suffered a mental condition that might affect his perception and recollection of events so as to make his account unreliable. The prosecution was discontinued on the advice of counsel who was of the opinion that, given the absence of any other evidence, B could not be put before a jury as a reliable witness, in light of the medical report. B contended that;(1) the decision was premature and irrational; (2) in reaching its decision to offer no evidence the CPS failed to have due regard to the need to promote equality of opportunity between disabled persons and other persons contrary to its duty under the Disability Discrimination Act 1995 s.49A(1)(c); (3) the decision was in violation of his rights under the ECHR 1950 s.3HELD: (1) The decision of the CPS was irrational and involved a misapplication of the Code for Crown Prosecutors. If the prosecutor had applied a merits based approach and asked himself whether he thought that it was more likely than not that B's identification of R was the result of an hallucination, it was impossible to see how merely on the strength of the medical report he could have answered that question in the affirmative. The reasoning process for concluding that B could not be placed before the jury as a credible witness was irrational. It did not follow from the medical report that the jury could not properly be invited to regard B as a true witness when he described the assault. The conclusion that he could not be put forward as a credible witness suggested either a misreading of the medical report or an unfounded stereotyping of B as someone who was not to be regarded as credible on any matter because of his history of mental problems. Accordingly, the decision to terminate the prosecution was unlawful. (2) When assessing the substantive merits of the evidence which the prosecution was able to place before a jury against the likely defence, it was difficult to ascertain the scope of s.49A. If the quality of the evidence was such that it did not pass the merits test then the prosecution should not go ahead. In that situation s.49A added nothing to the ordinary position under public law principles. If the prosecutor had applied the Code properly and had arrived at a reasonable decision, that the evidential test was not met, there would have been no breach of s.49A since the duty of the prosecutor was to apply the Code. (3) The decision to terminate the prosecution was humiliating to B and caused him to feel that he was being treated as a second class citizen. Looking at the proceedings as a whole the nature and manner of abandonment increased B's sense of vulnerability and of being beyond the protection of the law.
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