22. Sentencing principles Flashcards
What are the purposes of sentencing?
The sentencing code sets out a list of the purposes of sentencing for those age 18 or over when convicted (this extends to ancillary orders).
The purposes of sentencing are:
(2) The court must have regard to the following purposes of sentencing—
(a) the punishment of offenders,
(b) the reduction of crime (including its reduction by deterrence),
(c) the reform and rehabilitation of offenders,
(d) the protection of the public, and
(e) the making of reparation by offenders to persons affected by their offences.
When do the standard purposes of sentencing not apply?
The purposes of sentencing do not apply to a mandatory sentence requirement or a hospital order e.c.t. or an offender aged u18 at time of conviction (provisions for youths are in Crime and Disorder Act 1998 where the purpose is to ‘prevent offending by children and young persons’ and that the court must have regard to the welfare of the child or young person (CYPA 1933 s44)).
What is the relevance of the sentencing council’s general guideline: overarching principles?
The overarching principles in the sentencing council’s general guideline is applicable to all offenders over 18 sentenced on or after 1st October 2019:
‘The court should consider which of the five purposes of sentencing it is seeking to achieve through the sentence that is imposed. More than one purpose might be relevant and the importance of each must be weighed against the particular offence and offender characteristics when determining sentence’.
Who are the sentencing council and what do they do?
They are a body which prepare sentecing guidelines, specifying the offence range and a category range for each cases, with a starting point for each category or offence range.
How does a court decide how serious an offence is?
Where a court is considering the seriousness of any offence, it must consider—
(a) the offender’s culpability in committing the offence, and
(b) any harm which the offence
(i) caused,
(ii) was intended to cause, or
(iii) might foreseeably have caused.
Seriousness of offending is decided by taking into account culpability and harm and thereafter taking into account mitigating and aggravating factors.
What is credit for guilty plea?
A reduction in sentence because a person has pleaded guilty
How does a court decide how much credit to give the defendant?
The circumstances of the plea and the stage of the plea (using the sentencing council’s guideline for offenders aged 18 and over in cases where the first hearing was after 1st june).
the guidleline for children sentencing children and young people sets out similar principles.
What are the special rules on guilty pleas?
For a serious terrorism offence -not less than 80% of what otherwise would be given
for a mandatory sentence - not less than 80% of what otherwise would be required
mandatory sentence for 16/17 when convicted - any sentence it considers appropriate
What must happen when a judge is giving credit?
The guideline (part C: The Approach) indicates that the court should determine the appropriate sentence for the offence(s) in accordance with any offence-specific sentencing guideline, determine the level of reduction for a plea of guilty, state the amount of that reduction, apply the reduction, and then follow any further steps in the offence-specific guideline to determine the final sentence. The SA 2020, s. 52(7), states that where, as a result of taking into account any matter referred to in s. 73(2), the court imposes a punishment on the offender which is less severe than it otherwise would have imposed, it must state that fact. In Beckford [2018] EWCA Crim 2997, the Court of Appeal stressed that ‘a judge should, when a defendant has pleaded guilty, indicate whether he is giving credit [and] how much credit is afforded’ (at [13])
What should happen if multiple offences are being sentenced to which a person has pleaded guilty?
It should be made clear a proper reduction is being made for each offence, though if pleas were made at different stages for each offence then it must be made clear what credit is given for each offence
What should advocates do if a judge makes an arithmetical error?
Alert the judge to this
What should happen if a judge decides to not follow the guideline?
If a judge decides it would be contrary to the interests of justice to follow the guideline, the judge must provide clear reasons for this.
What is the maximum reductions for pleading guilty?
The maximum reduction for guilty plea is 1/3 at the first available opportunity subject to exceptions.
Where the plea of guilty is indicated after the first stage of proceedings ‘the maximum level of reduction is one-quarter’.
There is no sliding scale between the reductions of one-third and one-quarter.
The reduction ‘should be decreased from one-quarter to a maximum of one-tenth on the first day of trial’, and the reduction ‘should normally be decreased further, even to zero, if the guilty plea is entered during the course of the trial’
Can a defendant claim maximum credit for indictable only offences in the Crown?
If the words ‘G indication’ are entered in the plea box on the Better Case Management form in the magistrates’ court, that demonstrates the defendant’s intention, and entitles the defendant to a full reduction (Handley [2020] EWCA Crim 361). If, however, ‘G likely’ or ‘G likely on a basis’ is entered in the box then the defendant is keeping options open, and is not so entitled (Davids [2019] EWCA Crim 553);
Can a defendant get full credit if pleading on a basis?
An unequivocal plea can be made if on a basis without a newton hearing. If, however, there is a subsequent Newton hearing, some of the reduction may be lost
Can a judge suspend a prison sentence because of a plea?
No, even though they can reduce from a prison sentence to a CO/fine.
Where can a full reduction be made even if a not guilty plea was entered?
Where the court is ‘satisfied that there were particular circumstances which significantly reduced the defendant’s ability to understand what was alleged or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner than was done, a reduction of one third should still be made.
Sentencers should distinguish between cases where it is necessary to receive advice/see evidence to see if a person is guilty in law versus a case where a defendant delays merely to assess the strength of the evidence.
What are the consequences of a non-favourable Newton hearing on credit for plea?
[i]n circumstances where an offender’s version of events is rejected at a Newton hearing or special reasons hearing, the reduction which would have been available at the stage of proceedings the plea was indicated should normally be halved. Where witnesses are called during such a hearing, it may be appropriate further to decrease the reduction.
What reduction should apply where a defendant pleads guilty to a lesser alternative offence but is tried for the more severe one but found not guilty?
‘if an offender is convicted of a lesser or different offence from that originally charged, and has earlier made an unequivocal indication of a guilty plea to this lesser offence or different offence to the prosecution and the court, the court should give the level of reduction that is appropriate to the stage in the proceedings at which this indication … was made …’.
What is the guilty plea exception for minimum five-year sentence for certain firearms offences?
No reduction can be made to below 5 years
What is the guilty plea reduction exception for minimum sentences?
Cannot produce a sentence less than 80% of what the minimum sentence would be.
What is the aggravating factor of when someone is on bail?
Where an offence is committed on bail, the court must treat that as an aggravating factor and say that in open court (this is particularly acute where it is the same type of offence).
What is the aggravating factor for a previous conviction?
A previous RELEVANT conviction must be treated as an aggravating factor, having regard to the nature of the offence and the time that has elapsed since the previous conviction. Must state so in open court
What is the aggravating feature for hostility?
Aggravating factor for:
* racial
* religious
* disability
* sexual orientation
* transgender identity (not apply for an offender under s29 to 32 of racially or religiously aggravated offences)
hostility.
Must state in open court.
Includes wholly or partly, or a mistaken view on whether the person belongs to those groups.
Of general application.
What is the aggravating feature of terrorist connection?
If the offence has a terrorist connection the court must treat it as an aggravating factor and state it is so aggravated.
An offence has a terrorist connection if the offence takes place during or is an act of terrorism or is committed for the purposes of terrorism
How does a court approach mitigation?
A court can take into account any mitigating factor it wishes to where it thinks they are relevant.
The general guideline: overarching principles sets out a list of mitigating factors relevant to sentencing. There are always mitigating factors in each guideline.
The weight to be given to mitigation is a matter for the court and the serious nature of the offence may meant that little weight is given to what may be otherwise significant personal mitigation.
What other statutory aggravating factors are there?
Other statutory aggravating factors include:
* An offender’s public denunciation of allegations made by a victim could amount (but not protestations of innocence)
* Others contained in the general guideline: overarching principles
It is NOT an aggravating factor that a defendant told lies (except for certain things)
What are some of the relevant mitigaing factors?
Some relevant mitigating factors include:
* Remorse
* Good character
* Youth/immaturity
* Old age
* Serious illness of the offender
* Significant delay
* Pressure on the offender to commit the offence
* Provocation
* Determination to address addiction or offending behaviour
* Meritorious conduct unrelated to the offence
* Serious adverse impact to persons other than the offender as well as pregnancy can also be so treated
What is the aggravating factor of prevalence?
Generally, local prevalence should not be taken into account.
However, there are exceptional circumstances which may make prevealence relevant. This happens where:
* A court has evidence (i.e. from the local criminal justice board or from a community impact statement) that there is prevalence
* The evidence shows that the level of harm caused in the particular locality was significantly higher than elsewhere
* That the case can be categorised as exceptional
* It was just and proportionate to increase
What should a court do when sentencing for a more than one offence?
Where an offender is to be sentenced for more than one offence, the court should impose separate sentences for each offence unless one is to be marked NSP.
What should a court do when sentencing for two or more offences of imprisonment?
Sentences of imprisonment or detention in a YOI may run concurrently or consecutively. The court should make it clear which sentence relates to each count and whether the sentences are concurrent or consecutive.
If it fails to do so, it is presumed the sentences are concurrent.
What must a court do when sentencing for a fresh term of imprisonment where a defendant is already in prison?
Where a court passes a determinate custodial sentence on a person already serving one or more such sentences, it must make clear whether the fresh sentence is consecutive or concurrent.
Unlawful to pass a sentence partly concurrent with and partly consecutive to another sentence
When does a sentence commence?
The SA 2020, s. 384, deals with commencement of sentence. A sentence imposed by a court normally takes effect from the beginning of the day on which it is imposed, unless the court otherwise directs (s. 384(1)), but the power to give such direction is subject to certain statutory exceptions listed in s. 384(3). There is no power to antedate the commencement of a sentence
What should a court do in respect of ordering a PSR?
If the offender is aged 18 or over, the court must obtain and consider a pre-sentence report before forming the opinion unless it considers it unnecessary
Where the presentence report requirement apply to a court forming an opinion, if the offender is aged under 18, the court must obtain and consider this report unless
(a) There exists a previous PSR and
(b) The court considers
In the circumstances of the case and
Having regard to the information in the most recent report
(c) That it is unnecessary to obtain a PSR
Where a court does not do so, a custodial or community sentence will not be invalidated.
The court will consider reports after summary of facts and antecedents.
What may a victim do for a sentencing hearing?
Give an impact statement about the offence but cannot suggest a sentence. They do not have to make a statement.
What should a court do before sentencing someone who appears to be suffering from a mental disorder?
Where an offender appears to be suffering from a mental disorder, the court must obtain and consider a medical report before passing a sentence other than one fixed by law.
A court need not order a report if it is of the opinion that it is unnecessary to do so.
The ordering of a medical report does not displace the need for a PSR or limit the court in taking into account all of the aggravating or mitigating circumstances.
Where sentencing someone young that has mental health issues, the court should have a medical report and PSR with early, clearly identified issues.
What must (basically) the court do when sentencing in the Crown?
A court must ascertain the basis of facts (esp. important after plea). Need to consider character of offender, to obtain PSRs, and to consider mitigation, either before sentencing or adjourning sentence.
What must happen after conviction as the first stage of sentencing?
Where an offender pleads guilty, the first stage of a sentencing hearing is for prosecutors to summarise the facts of the offence (including after multi defendant trials where one pleads guilty and the other doesn’t).
What are the key obligations of counsel at sentencing hearings?
A prosecutor must be neutral. It is the responsibility of the prosecution to adduce evidence about the offender’s character and antecedents. Key summaries include:
* Only providing evidence of the impact of the victim if it accords with the relevant guidelines
* Addressing any ancillary orders
* General duty to assist the court to avoid appealable error
* Prepare a plea and sentence document which identifies the aggravating and mitigating factors of the offence, relevant statutory provisions, and sentencing guidelines
These obligations extend to defence counsel.
What can a court do with a victim impact statement?
A court can be provided with an account from the victim which can be taken into account for sentence.
Procedural fairness requires the defence to see and respond to the statement.
What is the duty of assistance for sentence?
All counsel must make themselves aware of any legal limitations on the court’s sentencing powers and any relevant guidelines on sentence so as to be in a position to assist the judge if necessary.
There is a positive obligation on both counsel to ensure no order is made that is unlawful.
How is a basis of facts discovered after a verdict of guilty?
Where d is convicted following a trial, it is for the sentencer to form a view on the facts of the offence established by the evidence and to sentence accordingly.
Generally the jury should not be asked to supplement a verdict of guilty by stating the factual basis on which they reached their decision.
The recognised exception is a verdict of guilty on manslaughter.
Can a court sentence for anything other than the offence D has been convicted of?
A court cannot sentence for anything other than the crimes D has been convicted for except where:
* They are taking into account a less serious secondary offence but which the commission is implicit in and represents an aggravating feature of the more serious primary offence
* If the offender expressly asks for the other offences to be taken into consideration
* If the prosecution case is that the offences on the indictment are merely samples of a continuing course of conduct and the defence accept that
By taking an offence into consideration, the offender is able to wipe the slate completely clean at minimal cost in terms of increased sentence.
Who prepares PSRs?
A pre-sentence report may be made for anyone convicted of an offence over 18 and under 18 and is made by an appropriate officer (o18s probation, u18s probation, YOT, social workers).
What requirements are there on making reports for those who at least appear mentally disordered?
Before making a hospital order, the court must be satisfied that the offender is suffering from a mental disorder such as to warrant a making of such an order. Equally, a report is needed before passing a custodial sentence on an offender who appears mentally disordered.
A copy is required to be given to an authorised person (counsel/solicitor). If unrepresented, the gist of the report should be disclosed. For children, the substance of the report must be disclosed to any parent or guardian in court. The medical examiner who makes the report may be cross-examined.
What happens at the mitigation stage?
The final stage of the sentencing hearing is mitigation. Where u18, this right of mitigation would extend to parents, guardians, or other support adults. Witnesses may be called.
What happens after mitigation in sentencing?
After mitigation, the judge pronounces sentence. The judge can either do this immediately or retire.
In complex/public cases, a delay may be more so that sentencing remarks can be prepared.
What is the duty to give reasons?
Judges must give reasons for and explain the effects of a sentence, save were the sentence is fixed by law or otherwise mandatory.
A court must do so in a nontechnical way and the effect of the sentence.
Other reasons must be given such as where a court has a power to give a compensation order and it does not do so or where a court does not order disqualification or endorsement because of hardship or special reasons.
There is also a duty for credit.
It is important to articulate the reasoning for the sentence orally in public, even where written remarks have been prepared.
When can a sentence be deferred?
A sentence may be deferred for a court to have regard to:
* The offenders conduct after conviction
* Any change in the offender’s circumstances.
The court must fix the date and cannot do so for longer than 6 months. Sentence can only be deferred once.
Deferring requires the offenders consent and the court must be satisfied that the exercise of the power would be in the interests of justice (a court can defer again where it is the crown and the magistrates had deferred and then committed).
Where a referral order is required, the court may not defer.
What may magistrates do in respect of adjourments before sentence?
Post conviction, magistrates may adjourn for no more than four weeks at a time unless an accused is in custody and it remands him, the adjournment being for no more than 3 weeks.
This may be done for the purpose of enabling inquires to be made or of determining the most suitable method to deal with the case.
A court may defer more than once.
Where an offender is granted bail during a delay, the court may put a conviction on that an offender must be available for inquires, providing it appears necessary to do so.
What is the structure of a sentencing hearing in the mags?
While the basis structure is following in presenting the facts, character, and antecedents, there is a requirement on the defendant to give details of financial circumstances and also allow him to introduce evidence relevant to sentence.
The court sentencing need not be composed of the same justice who convicted, but where the court is to pass sentence where some justices were not sitting at that time, the court must make such inquiry into the facts and circumstances to enable the justices who weren’t sitting to be fully informed before sentencing.
What is the Newton procedure in the mags?
An accused who pleads guilty but wants to be sentenced on a different basis to the facts put forward by the prosecution must set out that basis in writing.
The court must invite the parties to make representations about whether the dispute is material to the sentence.
If the court decides there is a material dispute to sentence, the court will invite further representations and then decide the dispute.
Magistrates should follow the procedure in Newton and hear evidence and then make findings of fact and sentence accordingly.
Where there are co-accused and one pleads not guilty but the other pleads guilty on a factual basis the prosecution do not accept, the magistrates should adopt the procedure applicable in the Crown by virtue of Smith (Patrick), namely for the Newton hearing in respect of the guilty plea-er to occur after the trial of the not guilty plea-er.
However, Lord Thomas CJ observed that there may be ‘very rare cases’ where it might not be appropriate to follow the approach laid down in Smith. In KK v DPP, for example, the issue to be determined at the Newton hearing was whether the robbery had involved the use of a knife. The co-accused had been convicted following trial, and the district judge, in giving reasons for the conviction, made an express finding that a knife had been used. It followed that it would not have been appropriate for the same judge to conduct the Newton hearing of the other accused.
How is a decision made on sentence by justices?
The decision on sentence in mags may be made by majority. In an equal division, the court should adjourn for the matter to be considered at the resumed hearing.
What reasons must a mags court give?
The court must also give reasons. Unless the offender is absent or the ill-health of the offender or disorderly conduct makes it impracticable to do so, the court must explain the effect of the sentence, the consequences of failing to comply, and any power that the court has to vary or review the sentence. The court must identify the guideline sit used and how it used them; if it did not follow the guidelines because it was contrary to the interest of justice, it must state why.
What is the limit on the magistrates’ sentencing powers?
The general limit that magistrates may impose upon an offender summarily convicted of an either way offence is the general limit (currently twelve months) and/or a fine of any amount. The minimum is 5 days. Can be overridden expressly.
The SoS can vary this and has done (notably from between 2nd may 2022 and 30th March 2023 in which the sentencing powers are 12 months, from 30th march 2023 until 17th Nov 6 months, and from 18th nov 12 months again).
the general limit for summary offences is 6 months or the limit the statute creating it gave, whichever is less subject to an express overriding from another enactment. The fine limit whatever the offence-creating provision specifies; fines are usually fixed by reference to a level on the standard scale of fines rather than by reference to a specific sum of money. The offence-creating provision will indicate whether a fine may be imposed in addition to any sentence of imprisonment or only as an alternative thereto. When magistrates are dealing with an offender for several summary offences punishable with fines at levels 1 to 4, there is no restriction on the aggregate fine that may be imposed.
What is the limit on magistrates’ sentencing powers where sentencing for two or more offences?
Magistrates sentencing an offender for several offences and imposing imprisonment for two or more of them may make the terms concurrent or consecutive. This is subject to the maximum aggregate term for a summary offence, which is 6 months.
If sentencing for two or more either way offences, the maximum aggregate term is still 12 months.
If sentencing for a breach of a suspended sentence, they may choose the sentence to run consecutively. In such a case, the aggregate sentence may exceed the aggregate normally permitted (i.e. the general limit plus the suspension).
What is the limit on criminal damage cases?
Where convicted of criminal damage to which the special procedure applies, the magistrates powers are restricted to 3 months or level 4 fine. If they conclude it is over £5k, the general limit applies.
What is the limit on compensation?
For an offender over 18, there is no limit on compensation that may be ordered
What sentence can magistrates order in respect of youth offenders?
Magistrates may impose a sentence of detention in a YOI on an offender aged 18 to 20. The court’s powers are limited to the same extend as to those over 21. Where under 18, a youth court may impose a detention and training order, for which the maximum is 24 months (12 months custody and 12 months supervision).
What powers do a magistrates’ court have in respect of committals?
Where a magistrates’ court has convicted an offender of one or more either-way offences and the court takes the view that the seriousness of the offence is so much that it exceeds its powers, it can commit the offender to the crown court where the crown can deal with them as if they were convicted on indictment.
What is the procedure for if an offender is committed for related offences?
Where an accused has indicated a guilty plea to an either way offence and is also sent for trial for one or more related offence, the magistrates may commit the offender to the crown court for sentence to which they pleaded.
In such a circumstance, the crown court can only exceed the mags powers where:
1. The magistrates stated their powers were insufficient
2. The offender is convicted of one or more of the related offences
What is the committal powers for breach of conditional discharge or where an offender commits a further offence during an sso (both being imposed by the crown)?
An offender may be committed for breach of a conditional discharge imposed by the Crown and where the offender commits a further offence during the operational period of a suspended sentence imposed by the Crown. These are referred to as primary committal powers.
Where the court uses these primary powers, it may also commit the offender to the Crown Court to be dealt with in respect of any other offence of which he or she stands convicted (whether summary or not) that the mags has jurisdiction for.
To take the example of a magistrates’ court which has decided to commit an offender under s. 14, for one either way offence, a committal under s. 20 might (for instance) relate to:
(a) another, less serious, either way offence of which the magistrates have convicted the offender on the same occasion;
(b) a summary offence of which they have convicted the offender on the same occasion.
The reason a committal under s. 14 for the secondary offence would be inappropriate in situation (a) is that, because the offence is not sufficiently serious, the magistrates’ powers of sentencing for it are adequate. In situation (b), a committal under s. 14 would be inappropriate simply because that section does not extend to summary offences.
What must a judge who is giving an indication as to sentence make sure?
That the accused still have a choice to enter it voluntarily. If they are deprived of a genuine choice, the plea is a nullity and the conviction will be quashed on appeal.
What is the correct approach to judicial indications?
Goodyear:
The guidelines give a responsibility for each person involved in the court, and the need to take into account the review of any sentence then passed.
If the procedure is not followed and a guilty plea is entered after an informal indication, that conviction may ultimately be considered unsafe.
What are the responsibilities of the court for goodyear indications?
The court should not give an indication unless one has been sought.
However, the court remains entitled to exercise the power to indicate the sentence or type of sentence would be the same whether or not it is a guilty plea or goes to trial.
It should not indicate what the sentence would be after a trial, instead indicating what the sentence would be only following a guilty plea. (should especially not indicate that a trial would result in a much longer sentence)
The court can remind the defence that the defendant is entitled to seek an indication.
Where one is sought, the court may refuse to give an indication or may postpone doing so, without or with giving reasons.
The judge will most likely explain the reasons for deferral, and then further indicate the circumstances in which and when they would be prepared to respond to such an indication.
If the court refuses to give an indication, it remains open to the defence to make a further request at a later stage. In such circumstances, the court should not normality initiate the process except where appropriate to indicate the circumstances have change sufficiently to permit a renewed application for an indication.
Once an indication has been given, it remains binding on the judge and any other judge responsible for the case. This may change if there is a new definitive sentencing guideline or sentence authority.
However, an indication remains binding even if the accused subsequently absconds and falls to be sentenced also for his failure to attend.
If the accused fails to plead guilty, the indication will cease to have effect.
Where appropriate there must be an agreed, written basis of plea, otherwise the judge should refuse.
What are the responsibilities of the defence where they are seeking a goodyear indication?
Should normally be started by the defence (except where the court reminds)
Defence should not seek one without signed written authority that the client wishes to seek one
The advocate is personally responsible for ensuring the client fully appreciates that:
(a) they should not plead guilty unless they are guilty,
(b) any sentence indication remains subject to the entitlement of the AG to refer it as an unduly lenient sentence,
(c) any indication reflects the situation at the time and so if no plea is entered pursuant to it the indication ceases to have effect
(d) any indication given relates only to the matters about which an indication is sought
indications should not be sought where there is any uncertainty between pros and defence about an acceptable plea or pleas, or the factual basis for this
an agreed basis should be reduced to writing before an indication
where there is a dispute which counsel believes to be immaterial, the difference should be recorded for the court to considered
the court should never be invited to indicate levels of sentence which depend on possible different pleas
where the defence is a LIP, neither the pros or court should take any initiative as to indications as it may be seen as improper.
What are the responsibilities of the prosecution for goodyear indications?
They are obliged to be reactive, rather than initiate the process
Where there is still a dispute as to fact, the pros counsel should remind the court that an indication of sentence should not normally be given until the basis of the plea has been agreed, or the judge has concluded that the case can be properly dealt without without a Newton hearing.
If an indication is sought, the pros should inquire whether the court is in possession of or has had access to all evidence relied on, including any personal impact statement from the victim of the crime, as well as antecedents.
If the process has been properly followed, all pros counsel should have to do is:
(a) draw the judge’s attention to any minimum or mandatory stat sentencing requirements and to any guidelines or cases and
(b) to remind the judge of the entitlement of the AG for unduly lenient sentences is not affected
counsel should not say anything which may create the impression that the sentence indication has the support or approval of the crown
where the judge wishes to discuss plea and sentence in chambers (which should only happen in the most exceptional circumstances), the following should happen:
pros reminds judge about desirability of independent record, and records all decisions and comments. Should make this available to the prosecuting authority
where the advocate does not believe the circumstances are exceptional, the advocate should remind the judge of the relevant decisions of the court of appeal and not take part in any discussion on sentence
the pros advocate should not say or do anything which might be taken to agree, expressly or by implication, with a particular sentence
the pros advocate (where applicable) should indicate the ag may seek to refer any sentence as unduly lenient.
What (i.e. how should the proceedings be conducted in terms of time, access to the public e.c.t.) process should be followed for indications of sentence?
- Should normally be sought at the PTPH following a written application
- Should be done in open court with a full recording of the proceedings with both sides represented, in the presence of the accused
- The court is most ubnlikely to be able to give an indication unless factual issues have been resolved. Therefore, in such cases, no less than seven days’ notice of an intention to seek an indication should normally be given in writing to the pros and the court.
- If an application is made without notice when it should have been given, the court may conclude that any inevitable adjournment should have been avoided and that the discount for guilty plea reduced accordingly.
- There should be very little need for the court to be involved in the discussions with the advocates, save to seek better information on any troubling aspect of the case. An opening by the crown, or mitigation plea by the defence, is not envisaged.
- the fact notice has been given and any reference to a request for a sentence indication or anything surrounding it would be inadmissible.
- Reporting restrictions should normally be imposed, to be lifted if and when the accused pleas or is found guilty.
- The court did not consider it should be anything like a sentencing hearing.
- The judge does not need to further reduce the sentence to reflect mitigation after the indication had been given. It was a matter for the judge’s discretion.
- In Utton [2019] EWCA Crim 1341, the Court repeated that a court was entitled, in an appropriate case, to resile from an indication given even after an accused had then pleaded guilty, providing that the proceedings remained fair to the accused. Moreover, if an accused did not take advantage of an indication within a reasonable period (by reference to the circumstances of the case), the accused could not later complain if the judge considered that the indication had ceased to have effect.
Where an accused has pleaded guilty on a basis where there is a sharp divergence on the facts, what can the court do?
Either through a jury
Hear the evidence and come to his own conclusion.
Hear no evidence except submissions and then come to a conclusion (but if he does that where there is a substantial conflict, he must come down on the side of the defendant so far as it is possible).
What is the duty of the defence where an accused pleads guilty on a different factual basis?
They have a duty to raise the issue by setting out the basis of the plea in a written form. It should be unequivocal and unambiguous, otherwise the judge is entitled to ignore it.
The court should be informed ideally in advance and at the latest during mitigation, that the defence wish it to be resolved in a newton hearing. They must raise this, lest an appeal fail.
A court must make it clear it does not accept a written basis of plea if that is what it will do before proceeding to sentence.
What is the duty of the prosecution where an accused pleads guilty on a different factual basis?
They are under a duty to alert the court to the potential need to resolve a material factual issue for sentence
What is the duty of the court where an accused pleads guilty on a different factual basis?
The overriding consideration is that the offender is sentenced on a basis which the judge considers true and proper.
Therefore, even if a basis of plea is agreed or not contested, the judge is entitled to require a newton hearing if it does not consider the basis of plea true and proper.
Where may a newton hearing be unnecessary?
Where the prosecution and defence’s disagreement is insignificant (i.e. where the sentence would be the same regardless of which is accepted). Can decide on submissions only here. If the factual dispute does not go to the gravamen of the charge, a judge should sentence on the assumption that the defence version is correct and expressly say so.
Where the defence version is manifestly absurd. If it is so implausible, the judge is not obliged to hear evidence before accepting it.
What is the burden and standard of proof in a newton hearing?
It is on the prosecution to make the judge sure that their version is the correct one. The judge should self-direct, although a failure to do so may not be fatal.
Can evidence be called in a newton hearing?
Yes, and it follows the normal adversarial lines
What is the role of the prosecution in a newton hearing?
Where the basic facts are not in dispute, the pros are not obliged to call any evidence, and the judge is then entitled to draw any appropriate inferences provided that any findings are expressed to be in accordance with the burden and standard of proof.
The pros are still required to participate whether or not they have material to dispute the account.
Pros should adopt the role of amicus curiae, exploring matters which the court wished to be explored. The prosecution should not leave the questioning to the judge.
What is the role of the defence in a newton hearing?
They are not forced to call evidence or otherwise participate and may simply observe. However, by deciding not to give evidence, D cannot complain that there has been no newton hearing.
A failure to give evidence to matters within the defendant’s knowledge may mean a judge is entitled to draw such inferences as appear proper.
What is the role of the court in a newton hearing?
They must observe the directions which would have been given to the jury for their guidance. He should direct himself as if he was a jury. This may include:
(a) Going through the Turnbull steps
(b) Considering admissibility of identification evidence which breaches PACE
(c) Consider reliability of other aspects of the evidence
The rules of evidence should be strictly followed and the judge should clearly express and apply appropriate legal directions.
