court of appeal Archives

by John HoweyFebruary 26, 2021 Criminal Law0 comments

Court of Appeal Refuses to Correct Early Release Injustice

A recent Court of Appeal case has considered recent changes to the early release provisions. The changes came about on 1 April 2020, when The Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 came into force.

This statutory instrument’s effect was to alter the early release provisions for some offenders receiving relatively determinate lengthy custodial sentences. Anyone convicted of a relevant violent or sexual offence and sentenced to 7 years imprisonment or more, will now be released after 2/3 of their sentence, rather than 1/2.

By way of example, an offender who received a sentence of 12 years imprisonment would be released after serving eight years instead of 6 years, so “adding” 2 years to the sentence served.

Of course, Parliament is entitled to pass more or less whatever laws it wishes, but the feature of this legislation was that it applied to anyone sentenced on/after 1 April 2020, even if they had been convicted earlier.

Some offenders might, but for the Coronavirus pandemic, have been sentenced prior to the 1 April and therefore have avoided the new rule, but because of the shutdown of the criminal courts were sentenced after the 1 April.

What did the appellants say?

The appellants arguments were expressed in these terms:

‘The appellants each argue that through no fault of their own, or the defence generally, they will serve substantially more time in custody prior to release than would otherwise have been the case if the matter had proceeded to sentence as originally intended. They say that this is manifestly unfair and that it is wrong in principle that an appellant, through no fault of his own, should suffer the detrimental effect of the 2020 Order when the court’s intention had been that they should be sentenced before those provisions came into effect’

The Court of Appeal rejected the arguments put forward by the appellants, deciding as follows:

Nothing in the legislative framework, or the definitive guidelines of the Sentencing Council, requires, or explicitly permits, a sentencing court to take account of the impact of the early release provisions on these decisions.
It would defeat the statutory purpose of the early release provisions if their effect were ordinarily to be taken into account when passing sentence. The clear intention underpinning the 2020 Order (as is clear from the text of the Order itself, and is spelt out in the Explanatory Memorandum) is that, where it applies, the offender should, before being entitled to release, serve a further one sixth of the sentence than was previously the case. If the sentencing judge reduced the length of sentence to reflect the harsher effect of the early release provisions then that would directly undermine the legislative purpose.
Accordingly, the courts have consistently made it clear that a sentencing judge should not ordinarily take account of early release provisions when deciding the length of a determinate custodial sentence.
Nothing in the authorities explicitly rules out the possibility that there may be exceptional cases where it is appropriate to take account of the impact of early release provisions.
The Court must take account of mitigating features when setting the length of a fixed-term custodial sentence (s231(2) and (7) Sentencing Code; s153 Criminal Justice Act 2003). There is no closed exhaustive list of mitigating factors. Depending on the case, they may include the fact that custody will have a particularly harsh impact on the individual offender. Moreover, a court may depart from the approach required by an applicable definitive Sentencing Council guideline where it would be unjust to follow that approach.
The court has recognised the exceptional impact that the Covid-19 pandemic may have on sentencing decisions, however ‘we do not, however, accept that an analogy can properly be drawn, for the purpose of sentencing, between the effect of the pandemic on prison conditions, and the effect on the date of sentence (with the resulting impact of the 2020 Order). There is a principled difference between prison conditions and the effect of a change in the early release regime.’
A change in the early release regime is different. It is a legislative change that is introduced by Parliament (or by a Secretary of State with Parliament’s authority).
‘Nor does the fact that the offender has been given an expectation that he will be sentenced before 1 April 2020, or otherwise sentenced in a way that defeats the change introduced by the 2020 Order, amount to a justification for departing from the [usual] principle.’

It is unlikely that there will be further attempts to challenge the effect of the 2020 Order, but as always we will be closely monitoring this and other cases to ensure the best outcomes for our clients.

How can we help?

We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly.

If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.

[Image credit: “The Royal Courts of Justice” by R/DV/RS is licensed under CC BY 2.0)

by John HoweyApril 24, 2020 Criminal Law0 comments

Death by dangerous driving and causation

In some instances, more than one person can be responsible for causing death by dangerous driving.

An unusual case arose recently where the “driver” of a car which was stationary on the hard shoulder was charged with causing death by dangerous driving.

What happened?

“A” was the driver of the car on the hard shoulder. She was the designated driver taking her drunk friends’ home in the early hours of the morning. “A” became irritated by her friends arguing and pulled over onto the hard shoulder. She set off driving again before pulling back onto the hard shoulder. She was not displaying her hazard lights. A passing car sounded his horn at them as they had a car door open near to the highway. This time the vehicle was on the hard shoulder for about fifteen minutes.

“L” was driving a truck which, for some reason, swerved across the lanes and struck A’s car on the hard shoulder. One of A’s passengers was killed, and “A” and another passenger were seriously injured.

“A” was prosecuted on the basis that she was ‘driving’, that the driving was dangerous and that it was a contributory factor in the collision.

The Trial

The first trial judge accepted the defence argument that the chain of causation was broken.

In his judgment, it was not reasonably foreseeable that a third party, at 4.30am, in light traffic, would be so distracted that he would suddenly career across three lanes onto the hard shoulder. He was satisfied that L’s driving was a new and intervening act that broke the chain of causation.

“A” was undoubtedly the driver of her car, even though it wasn’t moving. It was also arguable that what she did was dangerous as she should not have stopped on the hard shoulder, other than in an emergency.

As the judge took this decision, known as a terminating ruling, the case did not go before the jury.

Prosecution Appeal

The prosecution appealed that decision saying that the jury should consider these issues. They argued that the prosecution just had to show that A’s driving was a cause, not the cause.

The Court of Appeal decided that the judgment was wrong. The law did not require that the particular circumstances should be foreseeable. What had to be sensibly anticipated was that another vehicle might leave the carriageway and collide with the parked car.

The case was sent back to the Crown Court for “A” to stand trial for the charge of causing death by dangerous driving.

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by John HoweySeptember 27, 2019 Criminal Law0 comments

Criminal appeals and delayed justice, over 40 years on

Ordinarily, criminal appeals must be lodged within a relatively short period following trial. Late requests often stand little prospect of success.

This extraordinary case illustrates exceptions to that rule, particularly where modern forensic techniques lead to the clear conclusion that the convicted person is innocent.

Janet Commins

Janet Commins was born on 9 June 1960. One evening in January 1976, she left her home in Flint to meet friends at the local swimming baths. She left a note for her parents to say that she would be back at around 8.30 pm. She saw her friends at the baths and was sighted close to her home in the company of two teenage boys at about 8.10. Some time between 8.15 and 8.45 she called to see a friend who lived a few doors away from her. She was told they were not in. After 9.00 pm, when the baths were closed, Janet’s parents became increasingly concerned and at 11.00 pm they reported her missing. On the following morning children playing on rough ground adjacent to Gwyneth Primary School found Janet’s body concealed in bushes.

Noel Jones

Noel Jones had just turned 17 and was interviewed by the police. Following an admission that he made to his girlfriend, he was charged with murder.

The admissions Jones made were denied during the investigation process, and he did not have the legal protections that are now available to suspects.

Jones pleaded not guilty to murder. However, on the third day of his trial, he changed his plea to one of guilty of manslaughter. That plea was acceptable to the court, and he was sentenced to 12 years imprisonment. Regrettably, however, that was not an accurate indication of guilt.

As there was a possibility of a second offender, the enquiry was left open. In 2017 a second man was convicted of sexual assault and the manslaughter of Janet.

Stephen Hough

The forensic evidence, not available when Noel Jones was charged, disclosed that Jones was not guilty of any crime. There had been a lone attacker, and that person was not Noel Jones. It was a man named Stephen Hough. Hough was linked to the offence when his DNA was taken in connection with an unrelated offence. He was convicted of manslaughter in 2017, and jailed for 12 years.

Court of Appeal

In January 2019 the Court of Appeal quashed Jones’ conviction commenting:

‘… the appellant can leave court wholly exonerated of involvement in this terrible crime.’

‘Our system of criminal justice is, of course, human and errors can be made however strenuous the efforts to ensure that evidence is properly and appropriately collected and placed before the court.

The pressures of being interviewed by the police are clearly real and the protections introduced by the Police and Criminal Evidence Act 1984 have done much to address, to such extent as it is possible, the pressures on those arrested and being interviewed.

In this case, however, it is clear that a serious injustice was done for an innocent man felt constrained to admit a grave criminal offence, not sharing the true position with his own legal team.

Many years have passed since he was released from prison but we hope that the quashing of his conviction and the contents of this judgment start to address the injustice that was done to him.’

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