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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> HR Solicitor General, A Reference by [2021] EWCA Crim 1959 (21 December 2021) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2021/1959.html Cite as: [2021] EWCA Crim 1959 |
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ON APPEAL FROM THE CROWN COURT
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE HILLIARD
HIS HONOUR JUDGE DEAN QC
(sitting as a judge of the Court of Appeal Criminal Division)
____________________
| A REFERENCE BY HER MAJESTY'S SOLICITOR GENERAL UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 |
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| AB, CD, EF, AND GH |
Respondents |
____________________
John Hipkin QC (assigned by the Registrar) for AB
Paul Hobson (assigned by the Registrar) for CD
Nicola Powell (assigned by the Registrar) for EF
Lee Davies (assigned by the Registrar) for GH
Hearing date: 10/12/21
____________________
Crown Copyright ©
Lord Justice Edis :
Introduction
The Indictment and the sentences
The Facts
The loss caused
|
A: Count 1 |
B: Other Counts: Total Advanced |
Total Harm caused/risked A+B |
C: Loss after security realised |
Total actual loss A+C | |
|
AB |
307,975.00 |
560,705.63 |
868,680.63 |
220,119.21 |
528,094.21 |
|
CD |
307,975.00 |
999,675.00 |
1,307,650.00 |
555,449.00 |
863,424.00 |
|
EF |
307,975.00 |
1,007,025.00 |
1,315,000.00 |
227,292.32 |
535,267.32 |
|
GH |
307,975.00 |
364,149.00 |
672,124.00 |
215,779.71 |
523,754.71 |
The proceedings prior to 10 September 2021
The events of 10 September 2021
The Judge: Yes, Mr Evans this case came before me on 27 August. The trial had to be vacated from last, last Monday I think, 6 August.
Mr Evans: Yes.
The Judge: And it was thought possibly beneficial for everybody to attend today.
Mr Evans: Yes.
The Judge: If you can just sit down in the dock, thank you very much, I'm sorry. Is there anything that you want to bring to my attention in particular?
Mr Evans: No simply that Your Honour of course properly asked the Prosecution on the last occasion if by today's hearing we could identify with a little more clarity --
The Judge: Yes.
Mr Evans: What the losses are and obviously from the point of view of everybody understanding where that would take Defendants in this particular case and I, I hope Your Honour has seen a note that I uploaded to the system. I know my learned friends have.
The Judge: Mr John Hipkin, can I turn to you?
Mr Hipkin: Yes.
The Judge: That note is a very useful document.
Mr Hipkin: It's an extremely useful document and can I say the Defence don't take issue with the document. We, we can add two other features to what, what I would propose tentatively as mitigation which is, of course, the age of the case.
The Judge: (indicates understanding)
Mr Hipkin: And secondly delay in the case. These Defendants were interviewed in 2015. The, the position is I, I, I make it clear I don't yet have a formal application for a Goodyear indication, but it is highly likely that there will be one, but it needs some, I think fine tuning between Defendants to make sure that it's either that it seems me, a joint application or, or not an application at all.
The Judge: Well hence the purpose of today's hearing.
Mr Hipkin: Absolutely, absolutely. We, we received this yesterday and I then am able to discern in conference this morning attitude to such an application.
The Judge: (indicates understanding)
Mr Hipkin: And the attitude of AB is favourable for such an application.
The Judge: Has this trial been refixed?
Mr Hipkin: No.
The Judge: No, I, I --
Mr Hipkin: No, no.
The Judge: But we face a position where there will be further delay, substantial further delay.
Mr Hipkin: Absolutely. One imagines well into next year and in these difficult times it's a benefit that all parties are here today in order to see if matters can be advanced in another direction.
The Judge: There comes a point when the word exceptionality has a bearing --
Mr Hipkin: Yes.
The Judge: And has a bearing which is particular to this case.
Mr Hipkin: Yes, thank you.
The Judge: And the Prosecution wouldn't dissent from that general opposition that there are exceptional features here of delay.
Mr Evans: There are. I can't dispute that. That's a matter of chronology. There's no doubt about that. This was, well the offences themselves, the alleged offences themselves are, are old in themselves. They came about because of one investigation. Then looking back through the finances it took a long time to put it all together. One thing I think I can properly say is this as well, and I've, I've got no observations to make about sentence other than what's in that document. I'm not going to say anything else.
The Judge: I understand that. Yes.
Mr Evans: I'm not suggesting Your Honour was trying to get me to say it, but I, I'm just not going to for the record. What I can say is this. That even at the time of the trial being adjourned till September there were some witnesses in this case, I, I won't say who were losing interest, but who were extremely frustrated --
The Judge: Yes.
Mr Evans: About the fact that this is many years later and they're being asked to come forward --
The Judge: Yes.
Mr Evans: And if it goes off again, well it's had to go off again that adds, that adds --
The Judge: Well time, time effects people in different ways.
Mr Evans: That adds to their frustration and I think some of them do want to draw a line to an extent --
The Judge: Yes.
Mr Evans: I have to say that.
The Judge: Yes, thank you very much. Mr Hipkin I turn to you --
Mr Hipkin: Yes.
The Judge: As a matter of courtesy, but also to address other Defence representatives. Is it best if I just allow this case to remain in the list?
Mr Hipkin: Yes please.
The Judge: And for whatever discussions that can take place can take place during the morning or during the day as far as I'm concerned.
Mr Hipkin: Yes, yes.
The Judge: I'll just, the Defendant's bail is obviously enlarged. It's not limited to the building, but they should stay within earshot of counsel in order to have discussions and I think it's best if I leave this to the Defence.
[The judge] obviously wanted to make it clear to experienced Leading Counsel for the Defence that what he meant was that if there were pleas he was minded exceptionally to pass non-custodial sentences due to the age of offending and delay. In his Chambers he did indicate that to Defence Counsel. Prosecution Counsel cannot recollect the precise words he used but has a very brief handwritten note made afterwards which reads "HH made clear to JH he would not send down if pleas. Except.". That was not a surprise given his comments in open court.
There was no discussion or debate about acceptability of particular pleas or bases, or about applicability of Guidelines.
In Chambers, The judge asked prosecuting counsel, "will there be a hullabaloo if I do not pass sentences of immediate imprisonment upon these defendants?" .My recollection is that prosecuting counsel replied "no". Prosecuting counsel's recollection is that he replied "no, I don't think so." The difference for the purpose of later legal submissions is immaterial. Prosecuting counsel then went on to reiterate that the prosecution faced problems with certain unnamed witnesses.
The Judge, following the input of prosecuting counsel, gave an indication that were the defendants to plead guilty, a suspended sentence of imprisonment would be passed.
The prosecution raised no dissent whatsoever at this indication.
Upon leaving Chambers, I imparted what had happened to all defence counsel.
Likewise, Mr Hipkin's recollection is correct: (although I cannot now remember the exact words used) that in a short meeting in chambers, I did ask the Prosecution if Suspended Sentence Orders were imposed whether this would cause difficulty for the Prosecution and I received the reply that it would not.
In direct answer to the question how the discussion in chambers was initiated I would comment as follows. In the context of what had been discussed in court, and in the obvious circumstances of a "stale" case being further substantially delayed, I initiated the meeting to offer assistance to all parties by expressing the view that the "exceptionality" which had been referred to in court would mean the passing of suspended sentences of imprisonment. It was clear to me that the parties would be assisted in that way from the generality of the case and what had been said in court before the meeting. I took this course given the facts of this case: I usually and invariably do not see counsel in chambers informally or at all.
Whereas no formal Goodyear application may have been made, the case proceeded on the bases that it had in all but name.
I acknowledge that there may be a basis for criticism in the way this proceeded. If I had been asked "formally", I would have proceeded as I eventually did and indicated that on the facts of this particular case (age of the offences, delay to date and future, further delay) that suspended sentences would have been passed.
The Judge: ... Yes, what's the position?
Mr Hipkin: Your Honour there's an application by all the Defendants that they be rearraigned upon the indictment.
The Judge: Yes."
The Judge: Can I ask Defence counsel first of all before I turn to the Prosecution whether any of these pleas are qualified in any way?
Mr Hipkin: No.
The Judge: No.
Mr Hipkin: No.
………
Mr Evans: I, I'll simply say this that I, there of course was a, a full, but that would've been a jury opening and there's a further document that Your Honour knows is uploaded too, a couple of days, I will distil the two of those down into a sentencing summary. Can, can I ask for 14 days to distribute that and upload it to the system?
The Judge: Right. Yes, certainly. I don't demand it, but it would be useful.
Mr Evans: I've. It'll be helpful to me –
The Judge: If, if you're prepared to volunteer doing it --
Mr Evans: No, I can do it.
The Judge: I can certainly grant you 14 days.
Mr Evans: Makes it easier.
The Judge: To, to conjoin the documents for a sentencing hearing.
Mr Evans: Yes, certainly.
The Judge: The Prosecution sentencing opening in 14 days then. Thank you very much."
The sentencing remarks
As a general principle of sentencing, the Court must have regard to the totality principle, and also of course, as always, must pass the least sentence it can according to law. Equally the Court must have regard to the definitive guidelines of the Sentencing Council and, where the interest of justice requires it to be done, the Court may depart from guidelines or adjust a sentence, so that the sentence is just and proportionate to the criminal liability involved, that is set out in statute under section 125 of The Coroners & Justice Act 2009.
Had you as Defendants fallen to be sentenced in a more timely manner and more proximate to the date of the offending, the mitigation that I have just alluded to and mentioned would not have saved you from immediate sentences of imprisonment. But I am now sentencing four members of the same family, the mother and three sons, where two of you, the Second and Fourth Defendants are of good character, the two other Defendants of limited bad character. I am sentencing you in respect of serious fraudulent activity and I am doing so in the last quarter of 2021.
A close analysis of this indictment is required to form a view as to what is the just and proportionate sentence.
Each counsel and advocate makes this point about antiquity of offending forcefully, and quite rightly so. Without expressing any criticism of anybody at all, and accepting that these were complex matters to investigate and to present, there has been an inordinate delay in prosecuting this case to the point of reaching a convenient and workable trial date.
Apart from the Sentencing Council's definitive guideline that I must consider in respect of the offending, there is another guideline to consider, that on the imposition of community and custodial sentences. There are factors indicating that it would not be appropriate to suspend a custodial sentence. They are three and they are these, that the respondent presents a risk of danger to the public, that appropriate punishment can only be achieved by immediate custody and there is a history of poor compliance with court orders. As far as each of you as Defendants are concerned none of those are present.
Correspondingly, there are factors indicating that it may be appropriate to suspend a custodial sentence. There are three again and they are these, a realistic prospect of rehabilitation, a strong personal mitigation and immediate custody will result in significant harmful impact upon others.
One of those factors, namely strong personal mitigation, applies to each and every Defendant. Another factor, that immediate custody will result in significant harmful impact upon others, applies to the second Defendant, CD, and the last Defendant, GH.
In my judgment it is essential that exceptional delay, which is present in this case, should be met with a sentence which recognises such exceptionality. I make it clear that, on the special and particular overall facts of this case, without in any way making any attempt to diminish the seriousness of what each of you has admitted, each sentence of imprisonment will be suspended.
Turning to your pleas, the pleas tendered were tendered late in the day, save for being tendered on the first day of any actual refixed trial, they could not be later and, as the Prosecution rightly point out, the case had been approaching a trial date on two previous occasions.
Each one of you will have a reduction in sentence of only 10%. Also, the requirements under a Suspended Sentence Order, because of the passage of time and a change in circumstances, may not be as extensive as ordinarily would be the case.
It seems to me that the real punishment here is twofold. First, the loss of a good name in each case, even though two of you have some irrelevant and old convictions, and secondly, that the financial consequences of offending under the terms of orders sought for confiscation under the Proceeds of Crime Act will be effective.
The submissions of the Solicitor General
The respondents' submissions
Discussion and decisions
"A Goodyear indication should be given (1) in open court (2) in the presence of the defendant…."
"…the practice promulgated in R. v Turner (1970) 54 Cr. App. R. 72, [1970] 2 Q.B. 321, as underlined and applied in subsequent cases, which, save in the most exceptional circumstances, effectively prohibited the judge from giving any indication of sentence in advance of a guilty plea by the defendant."
"The only exception to the rule that an indication of sentence should not be given is:
'. . . that it should be permissible for a judge to say, if it be the case, that whatever happens, whether the accused pleads guilty or not guilty, the sentence will or will not take a particular form, e.g. a probation order or a fine, or a custodial sentence.'"
"50. We cannot, and do not seek to water down the essential principle that the defendant's plea must always be made voluntarily and free from any improper pressure. On closer analysis, however, we cannot discern any clash between this principle, and a process by which the defendant personally may instruct his counsel to seek an indication from the judge of his current view of the maximum sentence which would be imposed on the defendant. In effect, this simply substitutes the defendant's legitimate reliance on counsel's assessment of the likely sentence with the more accurate indication provided by the judge himself. In such circumstances, the prohibition against the judge giving an unsolicited sentence indication would not be contravened, and any subsequent plea, whether guilty or not guilty, would be voluntary. Accordingly it would not constitute inappropriate judicial pressure on the defendant for the judge to respond to such a request if one were made.
51. We have further reflected whether there should continue to be an absolute prohibition against the judge making any observations at all which may trigger this process. The judge is expected to check whether the defendant has been advised about the advantages which would follow an early guilty plea. Equally he is required to ascertain whether appropriate steps have been taken by both sides to enable the case to be disposed of without a trial. Following this present judgment he will know that counsel is entitled to advise the defendant that an advance indication of sentence may be sought from him. In these circumstances, we do not believe that it would be logical, and it would run contrary to the modern views of the judge's obligation to manage the case from the outset, to maintain as a matter of absolute prohibition that the judge is always and invariably precluded from reminding counsel in open court, in the presence of the defendant, of the defendant's entitlement to seek an advance indication of sentence."
"If notwithstanding any observations by the judge, the defendant does not seek an indication of sentence, then, at any rate for the time being, it would not be appropriate for the judge to give or insist on giving an indication of sentence, unless in any event he would be prepared to give the indication permitted by Turner (see para.35) that the sentence will or will not take a particular form."
"64. Whether or not the judge has given an appropriate reminder, the defendant's advocate should not seek an indication without written authority, signed by his client, that he, the client wishes to seek an indication.
"65. The advocate is personally responsible for ensuring that his client fully appreciates that:
(a) he should not plead guilty unless he is guilty;
(b) any sentence indication given by the judge remains subject to the entitlement of the Attorney-General (where it arises) to refer an unduly lenient sentence to the Court of Appeal;
(c) any indication given by the judge reflects the situation at the time when it is given, and that if a ''guilty plea'' is not tendered in the light of that indication the indication ceases to have effect;
(d) any indication which may be given relates only to the matters about which an indication is sought. Thus, certain steps, like confiscation proceedings, follow automatically, and the judge cannot dispense with them, nor, by giving an indication of sentence, create an expectation that they will be dispensed with."
The Guideline and the proper sentencing level
Conclusion