Spruce & Anor, R v

THE VICE PRESIDENT: We are very grateful for the written and oral submissions of Mr Houlder, for the Crown, and Mr Bennathan, for the appellant, Anwar, in relation to the general principles involved for consideration today. We have regard to this Court's decision in R v Oates [2002] EWCA Crim 1071, [2002] 1 WLR 2833, [2002] 2 Cr App R(S) 654.

These two cases have been heard together because, although unrelated, they raise the same point of practical importance. It is this: when an applicant, on a renewed application to the Full Court for leave to appeal against sentence is, in his absence, granted leave and his sentence is reduced, in what circumstances should the matter be relisted for reconsideration in his presence?

The question arises because section 22(1) of the Criminal Appeal Act 1968 confers on an appellant the right to be present, if he wishes, at the hearing of his appeal. By section 22(2) he has no such right on an application for leave to appeal. By section 22(3) the Court of Appeal has power to pass sentence on a person, although he is not present, but this, in our judgment, does not negate the right to be present at the appeal hearing.

When an appeal succeeds, in the circumstances we have identified, it is the practice of this Court, when giving judgment in relation to an absent defendant, to say that, as the appellant is not present and has not waived any right, the sentence will be reduced as indicated unless within 7 days he applies for the matter to be re-listed, but the court does not encourage such an application. It is also the practice of the Registrar of the Court, immediately thereafter, to write to the appellant a so-called "do better" letter, saying that the appellant may ask for the appeal to be restored to the list, to enable him to be brought up; that the Court's decision will not be varied unless there is entirely fresh matter with an important bearing on sentence; and that a request may be made on Form O, within 7 days, setting out such fresh matter.

In our judgment such a letter fairly reflects both the appellant's statutory right to be present and the practicalities of the situation. But, it seems to us, the letter should normally only be sent to a defendant who was unrepresented on the hearing of the renewed application.

Counsel appearing on a renewal should, if possible, obtain instructions prior to the hearing to proceed in the applicant's absence, if the Court grants leave and proceeds with the appeal. If counsel has no instructions, he or she can normally be expected either to obtain instructions on the day of the hearing, or, if that is impossible, to communicate the result of the appeal to the defendant, together with such advice about the right to re-listing as is appropriate. If, at the appellant's request, the case is re-listed for the appellant to be present, there will only be a full rehearing if there is fresh material with an important bearing on sentence. If there is no such material, the appellant, or counsel on his behalf in his presence, will be invited to comment only on this Court's earlier judgment, a transcript of which will be available for the appellant or his counsel, and the court, prior to the relisting. Re-listing may or may not be before the same constitution which heard the initial application.

The question of a representation order for counsel at the re-listed hearing will not normally be considered before the conclusion of that hearing, and such an order will not usually be made unless relevant fresh material is present at the re-listed hearing.

We turn to the two cases before the Court. Spruce pleaded guilty before magistrates on 10th May 2004 and was committed to the Taunton Crown Court for sentence, under section 3 of the Powers of Criminal Court (Sentencing) Act 2000. He was sentenced, at that court, on 25th June 2004, by His Honour Judge Hume-Jones. The total sentence passed was one of 4 years' imprisonment, that sentence being passed on counts 1 to 6, and 23 to 26, for distributing an indecent photograph of a child. Three years concurrently was passed on counts 7 to 21, of making an indecent photograph of a child, and 3 years concurrently was passed on count 22, for possessing an indecent photograph of a child. On 29th October 2004 that 4 year sentence was reduced by a differently constituted two judge Court of Appeal (Criminal Division) from 4 years to three-and-a-half years, on a renewed application for leave to appeal against sentence, following refusal by the Single Judge. The Court on that occasion, when he was represented by Mr Hinton, who appears for him today, granted leave to appeal and reduced the sentence as we have indicated.

A brief summary of the facts suffices for present purposes. The appellant's activities were brought to the attention of the Avon and Somerset police by a detective in America, who had been patrolling Internet chatrooms. In consequence, on 18th December 2003 the police searched the appellant's home and seized his computer. 784 indecent images of children were found and six film clips. The character of the images was as follows: there were 260 in category 1; 41 in category 2; 95 in category 3; 382 in category 4 and 6 in category 5. The appellant, it was discovered, had also sent over 170 emails, containing 189 indecent images, but there was no suggestion that that had been done for financial gain.

In interview, the appellant accepted that he was in possession of the images to which we have referred, and they had been created between February 2001 and December 2003. The judge, in passing sentence, referred to the fact that most of the indecent images were in category 4, and at the very top end of that category. The Court of Appeal on the last occasion was referred to R v Oliver [2003] 1 Cr App R 463, where guidance is given with regard to sentencing in cases of this kind.

Having reduced the sentence, as we have said, from 4 years to three-and-a-half years, the Court said that, as the appellant was not present, and did not, at that time, know the Court's decision, he would have the right to re-apply to the Court for the hearing of the appeal to take place before a different constitution. That, as it seems to us, for reasons given at the outset of this judgment, is a right which he did not possess in such wide terms: he was entitled to the present but not necessarily before a different constitution. The Court also assented to a proposition, advanced by counsel, that if there were a rehearing of the appeal, there was a risk that a freshly constituted Court might uphold the original sentence. As it seems to us, that is not a realistic risk if a case is re-listed in the circumstances presently under consideration.

Equally, it is not appropriate, as happened in Anwar, to which we shall come, for anyone, within the prison service or elsewhere, to advise an appellant who has been successful on an initial renewed application, that, if he returns to this Court again, he will be guaranteed further success. That, for the reasons which we have already given, is not the position.

So far as Spruce is concerned, Mr Hinton, in submissions which he accepts were rehearsed to this Court on the previous occasion, draws attention to the immediate admissions made by the appellant, his early plea of guilty and his previous good character. He stresses that there was no question of financial gain in the distribution of the images, and that the appellant was not involved in the production of the images, save in the sense that he downloaded them.

The only material, as it seems to us, which is before this Court but was not before the earlier constitution, is a further medical report from the general practitioner treating the appellant's wife. She, sadly, suffers, to a serious extent, from multiple sclerosis. There was before the previously constituted Court, a report from that doctor dated 17th June 2004. That report envisaged that it might be necessary for the appellant's wife no longer to be cared for at home, but to go elsewhere to be cared for. It is apparent from the further report from the doctor, dated 23rd December 2004, that that has not happened. There is no doubt that Mrs Spruce is in an extremely disabled and sad condition. But, as it seems to us, there is nothing in the up-to-date medical report which materially alters the position in that regard.

That being so, as it seems to us, the reduction in sentence which the Court made on the last occasion was a sympathetic response to the position of the appellant's wife, and there is no basis on which, despite Mr Hinton's urgings, this Court could be more sympathetic so as to reduce the appellant's sentence further. Accordingly, the reduction in sentence from 4 years to three-and-a-half years stands and the appellant's appeal is allowed to that extent only.

So far as Anwar is concerned, he was convicted at the Central Criminal Court on 9th May 2002, following a trial before His Honour Judge Forrester. There was a co-accused called Konopek.

On 16th May 2002 both Anwar and Konopek were sentenced to terms of 16 years' imprisonment concurrently in relation to a number of offences, namely attempting to cause grievous bodily harm with intent, wounding with intent, conspiracy to possess a firearm with intent to endanger life and conspiracy to possess ammunition with intent. Konopek was also convicted of using a firearm with intent to resist arrest.

So far as Anwar is concerned, in addition to that 16 year sentence, he was sentenced, consecutively, to a total of 7 years' imprisonment, in relation to what Mr Bennathan, on his behalf in this Court today, has referred to as the flat offences, that is to say a variety of offences, which came to light as a result of a search of Anwar's flat. They were offences of possessing a prohibited weapon, and possessing a Class A controlled drug, cocaine, with intent to supply, in relation to which 7 year sentences were passed, offences of possessing a firearm without a certificate, and possessing prohibited ammunition, in relation to which concurrent sentences of 6 years were passed, an offence of possessing cannabis with intent to supply, for which 5 years concurrently was imposed, an offence of possessing ammunition without a certificate, for which sentence was 4 years was passed and possessing a prohibited weapon, for which the sentence was 3 years. The sentences of 5, 6 and 7 years were all quashed and a 3 year sentence was imposed in place of those sentences. The 4 year sentence, in relation to possessing ammunition without a certificate, was not interfered with. All of those sentences, in relation to the flat offences gave rise to a reduction by the court, on the last occasion, to a total of 4 years' imprisonment, which was ordered to run consecutively to the 16 years, in relation to the other offences. The total sentence on Anwar therefore became one of 20 years' imprisonment, rather than 23 as imposed in the Crown Court.

The facts in relation to these offences are set out in detail in the judgment of the Court, given on 14th January 2005, by Elias J. The neutral citation of the report is [2005] EWCA Crim 22. It is unnecessary, for present purposes, to repeat those facts.

Mr Bennathan, who appeared on the last occasion, indicated, the Court having reduced the sentence, that although the appellant, as he had become, was not then present, he, Mr Bennathan, would be unable to advance further submissions on his behalf. That he has appeared today to advance submissions is in no sense a criticism of Mr Bennathan. We have already paid tribute to the help which we have received from his written and oral submissions on the general principles which are involved. The basis for the appellant's wish to be present was advice which he was erroneously given as to the guaranteed outcome of an appearance today, to which we referred when dealing with Spruce.

It is apparent that all the material which is before this Court today was before this Court, differently constituted, on the earlier occasion. There is no basis on which it could be said that any further reduction in Anwar's sentence is appropriate. Therefore, his sentence remains that which was decided on the previous occasion, that is to say, a total sentence of 20 years, in place of the 23 years passed in the court below.

THE VICE PRESIDENT: Because of the particular circumstances of these cases, and for no other reason, both you and Mr Hinton may have representation orders for today.

MR BENNATHAN: Thank you very much.