Attorney General's Reference No. 35 of 2005

This is an application by the Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court for review a sentence which he considers to be unduly lenient. We grant leave.

On 4 May 2004, in the Crown Court at Minshull Street, Manchester, the offender, who is aged 38, pleaded guilty to one count of cruelty to a person under the age of 16, contrary to section 1(1) of the Children and Young Persons Act 1933. On 8 March 2005, over ten months later, he was sentenced by His Honour Judge Fish to a conditional discharge.

The facts are as follows. AW has three children. At the time of the offence to which this application relates, that is November 2002, T was aged 14, C was aged 8 and B was aged 22 months. Each child has a different father. AW had lost touch with the fathers of the elder two children. The father of B was the offender. He had lived with AW for some years, had moved out during a period of estrangement and had recently moved in with the family again.

On 22 November 2002, CW, B's aunt, called at the family home. She noticed that B had bald patches in her hair, purple bruising to her ears and a bruise on her cheek. It was also apparent that, since the offender had returned to live with the family, B had become withdrawn and clingy. As a result of what she had seen, CW made a doctor's appointment that day for B.

Dr Caplan saw B later that day and found the same injuries that CW had seen, as well as a bruise over the left thigh. He referred B for an urgent paediatric opinion.

Another of AW's sister, L, attended the house that evening. B showed her an injury on the base of her foot which was scabbed over. The following day, 23 November 2002, AW's sisters decided to contact the NSPCC and report the matter. The police and social workers attended the home address on 24 November and in the light of their observations took B straight to Trafford General Hospital.

Dr Studnik, registrar in paediatrics, examined B. His findings were as follows: there was a large bluish bruise on the upper part of and behind the right ear, consistent with forceful pinching or a direct blow to the ear; small petechial spots on the upper part of the left ear, again consistent with pinching or a direct blow to the ear; a faint bruise to the right cheek, possibly the consequence of a blow to the ear (an unusual area for a child to suffer an accidental bruise); a small brown bruise to the abdomen; several small bruises resembling fingertips from a hand on the left and right thighs; a large bruise on the left buttock and several small bruises on the right buttock; several small bruises resembling finger marks on the outside of the right thigh; an oval infected lesion with surrounding redness on the right foot with a reddish mark tracking up the ankle; and a large area (8 x 6cm) of partial hair loss. Dr Studnik concluded that these injuries were probably not accidental. His view was confirmed by two other doctors, one a consultant in child care and the other a consultant paediatrician. The latter concluded that B had suffered a sustained and fierce attack which included blows to the head, capable of causing serious injury, and the pulling out of her hair, a particularly painful and cruel injury. The injury to her foot was consistent with a cigarette burn.

The offender and AW were arrested and each charged with two counts under section 1(1) of the 1933 Act. Particulars of the first count alleged wilful ill-treatment, and of the second count wilful neglect.

Having pleaded not guilty at the plea and directions hearing on 26 January 2004, AW changed her plea on count 2 to guilty. That plea was accepted on the basis that she had neglected to summon medical attention for B's injuries. AW then provided a statement for the prosecution in which she described three occasions in November 2003 when she left B in the care of the offender. In particular on 21 November she left B with him for about an hour. On her return she noticed that B had hair missing and bruising on her ears. She noticed the bruise on B's bottom the next day. She had been aware of the foot injury a week earlier.

On 29 June 2004, AW was sentenced to six months' imprisonment suspended for eighteen months. The judge took into account the fact that she had provided a statement to the police of the nature that we have described.

Preparations for the trial of the offender proceeded, but on 4 May 2004, the day of his trial, he pleaded guilty to the first count. The second count was left on the file.

Attempts to have an effective sentencing hearing did not run smoothly. A pre-sentence report was prepared dated 24 May 2004, but this suffered from the fact that the offender had failed to attend an appointment that had been arranged with a Probation Service drugs worker. In the circumstances set out below there is no need to go into this report or the conclusions reached by its author, save to say that the author concluded that a custodial sentence was inevitable.

It seems that those acting for the offender obtained an adjournment in order to obtain a psychiatric report. After further adjournments the case was restored on 23 November 2004. On this occasion counsel for the offender told the court that a report had been obtained but that matters in it and other general matters made her position as the offender's counsel untenable. She and her solicitors were given leave to withdraw from the case and a further adjournment was granted to enable the offender to instruct fresh solicitors.

There was a further hearing on 14 December 2004, when fresh counsel and solicitors appeared for the offender. The transcript shows that counsel and the judge discussed a psychological report, which suggested that there might be a need for a full psychiatric report. We have not seen the psychological report, but it seems to have been made by a Dr Jackson, Consultant Clinical Neuropsychologist, dated 9 August 2004.

The judge stated that he had been anxious to obtain as clear a picture as possible of the problems which the Probation Service might have if he were to make some sort of Community Order. Counsel indicated that the offender might need treatment under a hospital order. The case was again adjourned. At a further hearing on 8 February 2005 the court was informed that a psychiatric report was in the course of preparation, but that a few more weeks were needed to complete it. We have that report; it is dated 1 March 2005, prepared by Dr Pettit. It discloses that the offender suffered a head injury in June 2001, the effect of which was to worsen the severity of existing symptoms of depression and a practice of self-harm. This report and the earlier report show that the offender is a man of very low IQ who has psychiatric problems.

On 8 March 2005, the case was once more before the judge for sentencing. This was no less than the fourteenth appearance of the offender. Counsel told the judge that once again the offender's team was professionally embarrassed and could not continue. At this the judge remarked that the matter had gone on and on and on and that he proposed to make the offender the subject of a conditional discharge. He then asked Mr Dean, counsel for the offender, "Does that professionally embarrass you?" Mr Dean replied, "No, your Honour." The facts were then opened to the judge and in due course he imposed the sentence of conditional discharge.

It seems that since then the offender has been of no fixed abode. The police managed to contact him and to tell him of this hearing. He has not appeared, but he has had the advantage of being represented in his absence by Miss Henshaw. She has sought to explain something that had puzzled the court, which was precisely what had gone on before His Honour Judge Fish. Her suggestion, which seems to us to explain the position, was that as evidenced by the medical reports the offender denied that he had committed the offences at all and suggested that he had only pleaded guilty to the offence because he had been under some form of duress. In those circumstances his team felt unable to continue. There might well have been an application by the offender to withdraw his plea of guilty but for what then occurred, which was the offer by the judge of a conditional discharge which the offender's counsel considered that it was professionally open to him to accept. We can well understand why in the circumstances he considered that so to do would be in the offender's interest.

If the plea of guilty stood the facts of this case called for a custodial sentence. This was not a father who momentarily lost his tempter and resorted to violence. It was sustained cruelty to a small child which would have merited a sentence of at least twelve months' imprisonment. But the offer of a conditional discharge was accepted rather than any point being taken as to the plea.

In these very unusual circumstances it seems to us that it would not be appropriate to adopt what would otherwise have been the proper course of quashing this sentence and imposing a sentence of imprisonment. The picture of the procedure in the Crown Court as presented by the papers is lamentable. This was a case that called for proactive case management, which it never received. A series of fourteen hearings before sentence was wholly unacceptable. The unsatisfactory nature of today's hearing merely reflects what has gone before. The application is refused.