The courts powers to order that a period spent in detention pending appeal should not count as part of the sentence

R v Brind and Others [2008] EWCA Crim 934

In this case the court has taken the opportunity to reiterate the powers that it has under section 29 of the Criminal Appeal Act 1968 to order that a period spent in detention pending appeal should not count towards the serving of the sentence imposed by the court.

In the case of R v Hart and others [2007] 1 Cr.App.R 31, the court set out its powers under this section but in relation essentially to applications relating to sentence. These applications all include applications for leave to appeal against conviction. The same principles apply, namely that if the application is without merit then the court will consider ordering that time served should not count for the good reason that the renewal of such an application has a significant effect on the work of this court and adds to the potential backlog of cases to the detriment of those who have legitimate arguments to put before this court.

The Vice-President also warned that the forms relating to appeals have been amended so that the form SJ now includes an opportunity for the single judge considering the matter under section 31 of the Criminal Appeals Act 1968 to indicate whether in his or her view that appeal is one which is without merit. Where that part of the form has been so completed by the single judge, the would-be applicant must expect that this court will order that time served should not count.

These particular applications do not raise that issue in the sense that they are not applications in which the form was so completed by the single judge. However, they do provide in one or two cases the opportunity to comment on the sort of matters which both the single judge and this court may well consider when the issue of exercising the power under section 29 arises.

Bad character

R. v Nguyen [2008] EWCA Crim 585

On two separate occasions in December 2005 the defendant had been involved in incidents of “glassing”. On the second occasion the victim had died the next day. The Crown made the decision not to prosecute the defendant for the first incident of “glassing” but rather to adduce evidence of the first incident in the trial for the second “glassing” incident under section 101(1)(d) CJA 2003 on the basis that it was relevant to an important matter in issue between the defendant and the prosecution, namely, the question whether the defendant had a propensity to commit offences of the kind with which he was charged.

On appeal, it was submitted that that ruling was wrong because the Crown had made an informed and deliberate decision not to charge the defendant with the earlier assaults, but rather to rely on them as evidence of bad character in support of the alleged murder. It was argued that there had to be some limit to the Crown’s ability to introduce evidence of serious, untried offences as evidence of bad character under section 101(1)(d) and that the admission of the previous assaults was unfair.

Their Lordships did not accept that the mere fact that the Crown chose to rely on relevant bad character evidence which it had decided not to make the subject of a criminal charge could, of itself, have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Accordingly, the appeal was dismissed.

SENTENCING UPDATE

The Activation of Suspended Sentence Orders when some of Community Order has been completed

R v. Sheppard [2008] EWCA Crim 799

The appellant was found to be in breach of his suspended sentence order, comprising 12 months imprisonment suspended for two years. It was a further requirement of the order that the appellant complete unpaid work. The appellant came before the court on three occasions for breaching his order. On the third occasion the court ordered that the suspended sentence should take effect immediately, with its original length of imprisonment, 12 months, unaltered.

The appellant appealed arguing that since the appellant had complied with some of the Supervision Order it was wrong in law to impose the whole of the original custodial term.

Held: A court in activating a suspended sentence will ordinarily take note of the level of compliance with the order imposed. "However, it seems to us that it is not appropriate for a sentencing court always to give credit and to reduce the suspended sentence in such circumstances.  Community orders and suspended sentences are seen by some sections of the public as a soft alternative to prison.  For the public to have confidence in them, they must be properly enforced by the courts.  If there are repeated breaches, as there were in this case, then defendants must know that they will face the probability that the full sentence originally imposed will be reactivated.  It is also right for us to note that the probation service spend a good deal of time and effort providing the services in respect of which community orders depend.  It is important that the courts ensure that such time and resources are not wasted on those defendants who only comply with the terms of the orders when they feel like it.  It is also important that the probation service knows that courts may well impose full terms when community service orders and suspended sentence orders are breached; they can then give a clear message to those who are subject to such orders."

Standard of Proof: Aggravating features affecting the minimum term of a mandatory life sentence

R v Davies [2008] EWCA Crim 1055

The appellant was sentenced to life imprisonment with a minimum term of 23 years following his conviction for murder.

The Lord Chief Justice, giving the judgment of the court, said that under section 269 of the Criminal Justice Act 2003, when fixing the minimum term that a defendant convicted of murder had to serve before being considered for release on licence, the court was required to have regard to the seriousness of the offence.

Paragraph 5 of Schedule 21 to the Act required that, if the court considered that the seriousness of the offence was particularly high, the appropriate starting point should be 30 years. Cases that would normally fall within that paragraph included a murder involving sexual conduct.

The only issue before the judge in relation to the appellant’s sentence was whether the evidence led to the conclusion that the murder involved sexual conduct. The difference between a 15-year starting point and a 30-year starting point when fixing a minimum term could have very great significance. The standard of proof that the court should apply when deciding whether aggravating features existed that lifted the starting point from 15 to 30 years should be the same as that to be applied by the jury when reaching their verdict.

The only factor that pointed to the possibility of sexual conduct having been involved in the present case was the fact that the victim’s body was left naked. That raised the possibility that sexual conduct was involved, but it did no more than that. The judge’s finding that the crime involved sexual conduct had to be set aside and the starting point for the offence should be 15 years. A minimum term of 18 years would be substituted.