Law Report: Judge need not alert counsel about sentence: Regina v Baverstock. Court of Appeal (Criminal Division) (Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice Potts and Mr Justice Judge). 30 November 1992.

Although it is normally unnecessary for a judge to indicate in express terms that he is considering a custodial sentence, if the judge is contemplating a longer sentence than is commensurate with the seriousness of the offence, the judge should give an express indication to counsel.

The Court of Appeal reduced the appellant's overall sentence from four months' detention in a young offender institution to three months.

The appellant pleaded to handling stolen goods, common assault and theft committed while on bail. The appellant appealed against sentence on the ground that the judge failed to comply with the requirement in section 1(2)(a) of the Criminal Justice Act 1991 that only a custodial sentence could be justified and failed to explain to the appellant, in accordance with section 1(4), why a custodial sentence was being passed.

Jonathan Cooke (Registrar of Criminal Appeals) for the appellant; David Calvert-Smith and David Thomas (CPS) as amicus curiae.

LORD TAYLOR CJ, giving the judgment of the court, said that a judge should state simply that in his opinion either or both of section 1(2)(a) or section 1(2)(b) applied using the language of the sub-section. Having stated his opinion in that way, the judge was then required to state why he reached that opinion and to explain his reasoning to the offender in ordinary language.

In general, that should not normally be a two-stage process. In most cases, the judge should be able at one and the same time to explain in ordinary language the reasons for his conclusions and tell the offender why he was passing a custodial sentence. When complying with the second requirement, however, the judge would be addressing the offender directly and if, in complying with sub-section (4)(a) he had not used ordinary language, it would be necessary for him to go on to do so to comply with sub-section (4)(b).

The precise words used by a judge were not critical. The statutory provisions were not to be treated as a verbal tightrope for judges to walk. Given that the judge's approach accorded with the statutory provisions, the Court of Appeal would not be sympathetic to appeals based on fine linguistic analysis of the sentencing remarks.

Sentencing judges must comply with their statutory duty, but if they erred, the Court of Appeal would not interfere with the resultant sentence unless it was wrong in principle or excessive.

The judge's approach evidenced by his references to the appellant's record and history was contrary to section 29(1). The list of the appellant's previous convictions and the orders made following conviction could not, on their own, be treated by the court as having any significance as to the seriousness of the particular offences before the court. The sentencing court must continue to be supplied with a list of previous convictions. It was for the judge, if he thought it appropriate, to seek information about the 'circumstances' of previous convictions committed by the defendant or to require that the existing information should be amplified.

It was not for the prosecution to decide what circumstances of other offences might be relevant or for there to be argument between the prosecution and the defence about the relevance and admissibility of the material to be placed before the judge.

The fact that the offender was on bail while he committed an offence amounted to an aggravating feature of the offence, such as to be relevant to the appropriate sentence: see Attorney General's Reference Nos 3, 4, and 5 of 1992, unreported 30 June 1992.

There were circumstances in which fairness to the defendant required the judge to tell counsel that he had a particular course in mind, for example when the court was considering a discretionary life sentence.

However, in the normal class of case, such as the present appeal, it would very rarely be necessary for the judge to indicate in express terms that he was considering a custodial sentence. The most important issue in the majority of cases was whether or not there must be a custodial sentence. It was the obvious question to which any counsel would address his attention. He should not need the judge's prompting to alert him to do so.

Section 2(2)(b) provided that the length of a custodial sentence should be 'where the offence is a violent or sexual offence, for such longer term . . . as in the opinion of the court is necessary to protect the public from serious harm from the offender'. Before such a sentence was imposed, the court should give an express indication to counsel that it was being considered. That would enable counsel to deal specifically with the point. If a longer sentence than was commensurate with the seriousness of the offence was contemplated, the proper practice would be for the court to put counsel on notice.

Section 1(2)(a) provided that the court should not pass a custodial sentence unless the offence was 'so serious that only such a sentence can be justified for the offence'. The formulation in R v Bradbourn (1985) 7 Cr App R (S) 180, 182-183 was appropriate to any consideration of the expression 'so serious that only such a sentence can be justified for the offence'.

On the facts of the case, only a custodial sentence could be passed. However, the court still had to consider whether such a sentence was appropriate, having regard to the mitigating factors relevant to the offender, as opposed to the offence.

However, having considered the mitigating factors, a custodial sentence was required, but the overall sentence would be reduced to three months at a young offender institution.