Iles v R.

This is yet another case in which this court is compelled to warn of the dangers associated with the complexities of criminal justice legislation. In the present case that warning arises in two different respects.

First, the complexities have caused difficulties for judges, court staff, prosecution and defence advocates and legal advisers, and defendants. Those difficulties could be very substantially reduced if the patchwork of criminal justice legislation were overhauled and replaced. Youth justice is one of several areas in which such difficulties are particularly acute. This case adds to the legions of examples of the importance of all concerned taking care to check the court’s powers and jurisdiction, and ensuring that cases involving young people are progressed speedily both at first instance and on appeal.

Second, the complexities are such that there appears to have developed a practice under which the Magistrates’ Courts adjourn summary only matters, knowing the offender is due to appear at a Crown Court on other matters, and invite the Crown Court to enable the summary cases to be dealt with at the same time by the expedient of arranging for a Circuit Judge to sit as a District Judge. Such a practice has advantages, but there are dangers. Therefore before this practice is followed, the Magistrates’ Court must carefully consider whether this is in the interests of justice and ensure that there is power to do so. A Crown Court judge who is invited to deal with two sets of proceedings in this way must decide whether it is appropriate in the light of submissions from both the prosecution and the defence. For this purpose it must be kept firmly in mind that when sentencing as a District Judge the sentence is imposed by the Magistrates’ Court, and consideration must be given not only to advantages but also to dangers that may arise because (1) the judge would, as regards the Magistrates’ Court matters, be limited to the powers of a Magistrates’ Court, powers which must be carefully checked by counsel and the court; and (2) sentences that the judge imposes when sitting as a Magistrates’ Court would have a different route of appeal from that applicable to sentences imposed by the judge when sitting in the Crown Court. If the invitation is accepted, then consideration must again be given to these dangers at the stage of deciding what sentence should be imposed by the judge when sitting as a Magistrates’ Court.

The present case concerns a youth who was 16 at the time of his offending. So far as this court is concerned it began in September 2011 when new solicitors for the applicant lodged at the Crown Court an application for leave to appeal against sentence, for an extension of time, and for legal assistance. The sentence was said to have been imposed by HHJ Ross sitting at Coventry Crown Court in respect of offences of “arson, criminal damage x 2, bladed article, abh, offensive weapon, s4 POA.” It had been passed on 8 October 2010, nearly a year earlier. The sentence was described as “4 years detention and 3 years extended licence – 128 days on remand to count”. The new solicitors had been instructed in January 2011, but funding and other difficulties had prevented them from assembling the necessary material prior to September 2011. Certain matters were then thought to require clarification. The result was that papers eventually came before the single judge in December 2011 with a note from the Criminal Appeal Office explaining that the extended sentence imposed on count 1 (which concerned an offence of criminal damage) was unlawful. The reason for it being unlawfulwas that criminal damage is not a specified offence and cannot therefore be the subject of an extended sentence.

It had by this time become clear that in the Crown Court there had been a single indictment, T20100218, with two counts. The first of these counts concerned one of the criminal damage offences for which leave to appeal against sentence was sought. The second count concerned the offence of arson for which leave to appeal against sentence had been sought. The remaining offences were not on the court record as Crown Court matters. In that regard, the sentencing remarks on 8 October 2010 by HHJ Ross explained that he sat on that day alone in order to pass sentence on the offences in the indictment, and also sat with two justices in order to pass sentence on the remaining matters as a youth court.

The single judge noted that the application suggested that the extended sentence was excessive, but he did not agree. However, as the extended sentence on count 1 appeared to be unlawful it needed to be considered by the full court. Because the sentence was in his view not otherwise open to criticism the single judge refused a representation order.

The result was that the entire application for leave to appeal against sentence was referred to the full court. In the absence of a representation order Ms Thorne indicated that she would appear pro bono in order to seek leave to argue that the extended sentence on count 2 was manifestly excessive. The matter was initially planned to come before the full court on 21 March this year. At that stage it was seems to have been appreciated that the Youth Court on 8 October 2010 had imposed sentences of detention, and that these were unlawful: the only sentences that could have been passed by the Youth Court for these offences, given that the applicant was under 18 at the date of his conviction, were detention and training orders. Unlawful sentences by the Youth Court cannot be remedied by this court. In order to quash the Youth Court’s unlawful sentences it was envisaged that the court would reconvene as an Administrative Court. However the constitution of this court proposed to deal with the case on 21 March 2012 was thought to be unable to do this and the matter was put back.

The case thus came before us on 30 April 2012. By this stage there were three further developments. First, it was thought that the applicant’s expected release date (i.e. the date when the applicant could expect his period of licence under the Crown Court sentence of 8 October 2010 to begin) was imminent. Second, the Registrar had very recently granted Ms Thorne a representation order, advising her that issues arose not only as to the invalidity of the Crown Court sentence on count 1 and the Youth Court sentences of detention, but also as to the ability of the Youth Court to commit the criminal damage offence to the Crown Court for trial and as to whether the Crown Court, when identifying a custodial term for the purpose of passing an extended sentence on count 2, could take account of the offending that gave rise to the sentences imposed by the Youth Court. Third, the Registrar had equally recently invited the prosecution to appear at the hearing in order to assist on these points. At the hearing Ms Thorne and Mr Leonard appeared for the applicant and the prosecution respectively. Neither of them had appeared below. Each produced helpful written notes for us, both before and after the hearing. We are grateful to them for their assistance.

At the conclusion of argument we indicated that we would announce our decision at once and would give reasons later. We stated that sitting as a Divisional Court we quashed the decision of the Youth Court committing the applicant for trial to the Crown Court on what became Count 1 of the indictment, along with the sentences imposed by the Youth Court on 8 October 2010, for which lawful sentences would be substituted. Sitting as the Court of Appeal Criminal Division we granted leave to appeal against the sentences imposed by the Crown Court on 8 October 2010, and treated the hearing of the application as the hearing of the appeal. On Count 1 we allowed the appeal, quashed the sentence and made no further order. On Count 2 we allowed the appeal, quashed the sentence, and in its place imposed a sentence of 2 years 6 months detention pursuant to s.91 of the Powers of Criminal Courts (Sentencing) Act 2000. This accordingly became the total sentence imposed by the Crown Court, and was subject to a direction that credit be given for the full period of time spent in custody on remand of 128 days.

We now give our reasons for our decision.

The offences dealt with by the Crown Court occurred on 13 May 2010. Late that evening police officers attended Stoke Park School, following a report that someone was smashing windows there. They found the appellant running from the scene and arrested him. The appellant had smashed 22 windows with a crowbar and by kicking. One of the windows had been prised open, and within the English block an attempt had been made to start a fire. That block was found to be full of smoke. A deodorant can was found in the corridor. It was wrapped in some kind of material and set alight. In interview the appellant admitted causing the damage and attempting to set fire to the school because he had been banned from attending the school prom. He was given police bail with a curfew.

At the time of the attack on the school the appellant was living with his aunt and her husband, Mr. and Mrs. Jones. They were acting as foster carers for the appellant after his mother had died. He continued to live with Mr and Mrs Jones after the attack on the school and while on police bail. During this period the appellant committed offences on 22 to 23, 27 and 30 May 2010. All these offences were dealt with by the Youth Court.

At around 9 p.m. on 22 May 2010 the appellant returned home. Mrs. Jones was angry with him as he was in breach of his curfew and he appeared to be drunk. There was an argument and the appellant stormed out. He returned a few hours later but continued to argue with Mrs. Jones. He stormed out again taking a knife with him. He went outside and stabbed two tyres on Mrs. Jones’ car and also kicked a wing mirror. The appellant went back inside and continued to argue. Mrs. Jones was very frightened but the appellant did not threaten her. Mr. Jones then returned home and found the appellant being aggressive towards his wife. Mr. Jones, fearing for his wife’s safety, punched out at the appellant. The appellant retaliated and there was a struggle during which Mr. Jones received a cut to his head which bled. The appellant left the house again and made his way to a public house. There he picked up a pool cue and was heard to make threats against Mr. Jones. The police were called and found the appellant in a nearby street with the pool cue in his hand. Officers told him to drop the cue but he refused and tried to run off. The appellant then turned and made threatening gestures towards the officers. The officers used a taser to overpower him and he was arrested. In interview he eventually admitted that he was going to use the pool cue on Mr. Jones. He was bailed again.

On 27 May 2010 the appellant had a meeting with his youth worker. During that meeting the youth worker became concerned with what appeared to be the appellant’s obsession with knives. The applicant also threatened to kill his cousin Karl.

At 10.20 p.m. on 30 May 2010 the appellant went to the home of Mr. and Mrs. Jones. He had others with him. He was armed with a pool cue and was wearing a Halloween mask. He made threats and the police were called. When they realised the police had been called the appellant and the others ran off.

With the benefit of Mr Leonard’s researches after the hearing we have more detailed information about the court proceedings than was available to us on 30 April 2012.

As regards the events of 13 May 2010, the CPS file indicates that the appellant was charged with arson and criminal damage. When he first appeared for these offences before the justices, which appears to have been on 2 June 2010, they concluded that the arson was a grave crime and was so serious that it could not be dealt with in the youth court. Jurisdiction was declined under s.24 of the Magistrate’s Courts Act 1980 and the matter was adjourned for committal for trial to the Crown Court.

The eventual committal hearing is recorded as having taken place on 13 August 2010. A memorandum of entry for that day notes that the appellant was in custody. It records the position in relation to the offence of arson as follows:

1.

Arson
On 13/05/10 at Coventry in the County of West Midlands committed arson in that, without lawful excuse, you destroyed by fire walls and carpets to the value of £100.00 belonging to Stoke Park School intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged

Contrary to sections 1(1), 1(3) and 4 of the Criminal Damage Act 1971.

…

Mode of Trial: Court directs trial by jury – 02/06/2010

Results

Committed to CC in custody

Committed for trial under section 6(2) Magistrates’ Court Act 1980 to Coventry Crown Court ...

The same memorandum of entry records the position in relation to the offence of criminal damage as follows:

2.

Criminal damage to property valued under £5000
…

On or about 14/05/10 at Coventry in the County of West Midlands without lawful excuse, destroyed windows to the value of £5000 belonging to Stoke Park School intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged

Contrary to sections 1(1) and 4 of the Criminal Damage Act 1971.

…

Results

Committed to CC in custody

Committed for trial under section 6(2) Magistrates’ Court Act 1980 to Coventry Crown Court ...

On 24 May 2010 the appellant appeared before the justices in relation to the events of the night of 22 to 23 May 2012. He pleaded guilty on that day to offences of criminal damage (to the tyres), possession of a bladed article in a public place, assault occasioning actual bodily harm, possession of an offensive weapon, and threatening behaviour. The matter was adjourned for sentence.

On 10 June 2010 the appellant appeared before the justices and pleaded guilty to the offence of making threats to kill on 27 May 2010 and the offence of affray on 30 May 2010. Those matters, too, were adjourned for sentence.

The Crown Court’s record sheet for indictment T20100218 stated that the appellant had been arraigned before HHJ Ross on 13 August 2010 and had pleaded guilty on that day to both counts. There was a further hearing before HHJ Ross on 23 September 2010 prior to the sentencing hearing on 8 October 2010.

Indictment T201000218 made no mention of the value of damage to property on either count.

The appellant was born on 23^rd November 1993 and was thus sixteen and a half years of age at the time of these offences. He had previously been convicted in April 2010 for assault on a constable. He had also received reprimands in January 2007 and January 2008 for affray and possessing alcohol in a sports ground.

A letter had been written by the appellant to the court. It said that he realised that what he had done was irresponsible and dangerous. After spending a period of time in jail with other criminals he did not want to end up like them. He expressed a determination to “stay off the beer” and said he would like to make his mum proud and join the army.

A pre-sentence report which was before the court can be summarised as follows. The appellant said his offending began when he discovered his aunt had contact with his father and kept it from him. He was angry that she had not told him. The appellant showed very little empathy and no remorse. Social Care had been involved with his family since 2005 and the appellant was subject to a care order. The appellant admitted that he drank to intoxication and said he had tried various drugs. The opinion of the author was that he required a lot of work on his anger management. The appellant was likely to re-offend and the risk of harm was very high. Nevertheless the author of the report recommended a youth rehabilitation order with a supervision requirement, a curfew requirement and an electronic monitoring requirement.

The court also had reports from a psychiatrist and a psychologist. The main points made by the psychiatrist were these. The appellant was not suffering from a mental illness and did not suffer from a psychotic or mood disorder. There was nothing to suggest a hospital disposal. However he did fulfil the criteria for a conduct disorder. The opinion was expressed that since the death of the appellant’s mother his difficulties had been exacerbated. His lack of concern for the well being of others was of some concern.

The psychologist said that the appellant presented with delinquent predisposition and was at risk of behavioural disorder diagnosis. His aggressive behaviour had been present for a number of years. This had increased since the death of his mother. He presented a risk of re-offending due to his experiences, distorted beliefs and attitude. However he was motivated to engage with intervention and treatment.

As noted earlier, when sentencing on 8 October 2010 HHJ Ross began by saying that he sat alone in order to pass sentence on the offences in the indictment, and sat with justices in order to pass sentence on the remaining matters as a youth court.

The judge said at an early stage in his remarks that the sentence was going to be a sentence under the dangerousness provisions. He stated that in relation to the counts of arson and criminal damage he was satisfied that the appellant posed a significant risk of committing further specified offences which would cause serious harm. The judge continued that in relation to the arson and criminal damage matters “the minimum term would be one of four years’ detention.” He added:

But obviously I reflect in my sentencing the impact that the other matters would have in reaching that aggregate figure.

Turning to the events of 13 May 2010, the judge said that what the appellant did arose out of a grudge, and there was no doubt that the appellant had every intention of burning down that block of the school. He had expressed disappointment in failing to achieve that aim and it was also noted he had caused massive havoc smashing many windows. The school was unoccupied but there could have been risk to fire-fighters, the caretaker and the police officers.

As to events after 13 May 2010, the judge noted that they were committed while the appellant was on bail and that was an aggravating feature. While drunk and in breach of his curfew the appellant stabbed two tyres on Mrs. Jones’ car, left Mr. Jones with a nasty cut to his head, armed himself with a pool cue and uttered threats, and threatened police officers with the pool cue before he was overpowered. His confrontation with the police demonstrated vividly his attitude. Only five days later the appellant threatened to kill his cousin and he intended that his youth worker would take that threat seriously. The affray on 30 May had many aggravating features. He was once again on bail, the attack was on a home, he was the leader of a group, he was armed with a pool cue, and he had worn a mask to frighten.

The Judge stated that as what he referred to as a “minimum term” was appropriate for the arson and criminal damage on the indictment, the sentences for the other offences would be concurrent to the “minimum term”. The pleas of guilty, the appellant’s youth, and totality were all borne in mind and those sentences came to 12 months detention. The judge explained that this comprised concurrent sentences. As regards sentences for offences on 22 to 23 May 2010, they were criminal damage (to the tyres), two months’ detention; possession of a bladed article, nine months’ detention; assault occasioning actual bodily harm, 12 months’ detention; possession of an offensive weapon (the pool cue), nine months’ detention; threatening behaviour (the incident with the police), four months’ detention. Also concurrent with these sentences and with each other were sentences of nine months’ detention for threats to kill and for affray.

The judge then returned to what he continued to call the “minimum term”. Working from a figure of 4 years he noted that the appellant had already spent the equivalent of nine months on remand and that brought it down to three years and three months. The judge’s conclusion was that, bearing in mind the appellant’s age, he had to order a “minimum tariff” of 19 months. He asked both counsel to check his methodology and arithmetic, and went on to explain his reasons for setting an extension period of 3 years and for his finding of dangerousness. He then asked counsel for both prosecution and defence whether he may have fallen into error and received responses to the effect that neither of them had detected any error. The judge thanked them for their assistance and commented this was one of the most difficult sentencing exercises he had tackled.

Overnight the judge appreciated that he had fallen into error in thinking that he should fix a “minimum term” or “minimum tariff”. On his instruction the sentence was recorded as a sentence of 4 years’ detention with extended licence of 3 years.

Section 24 of the Magistrate’s Courts Act 1980, [as in force on 13 August 2010] provides:

24.— Summary trial of information against child or young persons for indictable offence.

(1)

Where a person under the age of 18 years appears or is brought before a magistrates' court on an information charging him with an indictable offence other than one falling within subsection (1B) below, he shall be tried summarily unless—

(a)

… the offence is such as is mentioned in subsection (1) or (2) of section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 (under which young persons convicted on indictment of certain grave crimes may be sentenced to be detained for long periods) and the court considers that if he is found guilty of the offence it ought to be possible to sentence him in pursuance of subsection 3 of that section; or

(b)

he is charged jointly with a person who has attained the age of 18 yearsand the court consider it necessary in the interests of justice to commit them both for trial;

and accordingly in a case falling within paragraph (a) or (b) of this subsection the court shall commit the accused for trial if either it is of opinion that there is sufficient evidence to put him on trial or it has power under section 6(2) above so to commit him without consideration of the evidence.

(1A) Where a magistrates' court—

(a)

commits a person under the age of 18 for trial for an offence falling within subsection (1B) below; or

(b)

in a case falling within subsection (1)(a) above, commits such a person for trial for an offence,

the court may also commit him for trial for any other indictable offence with which he is charged at the same time if the charges for both offences could be joined in the same indictment.

(1B) An offence falls within this subsection if—

(a)

it is an offence of homicide;

(b)

each of the requirements of section 51A(1) of the Firearms Act 1968 would be satisfied with respect to—

(i)

the offence; and

(ii)

the person charged with it,

if he were convicted of the offence

(c)

section 29(3) of the Violent Crime Reduction Act 2006 (minimum sentences in certain cases of using someone to mind a weapon) would apply if he were convicted of the offence.

(2)

Where, in a case falling within subsection (1)(b) above, a magistrates' court commits a person under the age of 18 years for trial for an offence with which he is charged jointly with a person who has attained that age, the court may also commit him for trial for any other indictable offence with which he is charged at the same time (whether jointly with the person who has attained that age or not) if the charges for both offences could be joined in the same indictment .

(3)

If on trying a person summarily in pursuance of subsection (1) above the court finds him guilty, it may impose a fine of an amount not exceeding £1,000or may exercise the same powers as it could have exercised if he had been found guilty of an offence for which, but for section 89(1) of the said Act of 2000, it could have sentenced him to imprisonment for a term not exceeding—

(a)

the maximum term of imprisonment for the offence on conviction on indictment; or

(b)

six months,

whichever is the less.

(4)

In relation to a person under the age of 14 subsection (3) above shall have effect as if for the words £1,000” there were substituted the words “£250.”

It is common ground that the appellant was properly committed to the Crown Court for trial on the charge of arson under section 24(1)(a) above. Arson is a grave crime as defined in section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. Under section 24(1) the justices – if they are satisfied that the requirements of section 24(1)(a) are met – are to make such a committal under section 6(2) if the requirements of that subsection are met. There is no complaint about the appellant’s committal for trial under that subsection in this case. There is accordingly no need to consider the possible alternative route of sending for trial under section 51A of the Crime and Disorder Act 1998.

Criminal damage is not a “grave crime” in the sense described above. The appellant could, however, be committed for trial in the Crown Court in respect of the charge of criminal damage if it fell within section 24(1A)(b). In the light of the material submitted to us following the hearing at our request we conclude, contrary to our initial decision, that this provision entitled the justices to take the course that they did. The reason is that the offence of criminal damage is an indictable offence. Section 22 of the Magistrates’ Courts Act 1980 lays down a procedure under which it must be tried summarily where the value of the destroyed property, or of the damage to property, does not exceed £5,000 – but by section 18(1) of that Act this procedure is confined to offenders who have attained the age of 18. The result may seem surprising at first sight, but it should be noted that there are in any event powers under section 40 of the Criminal Justice Act 1988 to add summary only offences to an indictment. Powers of sentencing are not enlarged under s 40. That being so, it seems to us that the effective position will be the same in a case where committal is under s 24(1A)(b), for it would be wrong to impose on a young offender a sentence more severe than that applicable to an adult – compare the decision of Bean J in P v. Leeds Youth Court [2006] EWHC 2527 (Admin).

In these circumstances, the answer to the query raised by the Registrar is that the committal for trial to the Crown Court of the criminal damage offence was lawful. In our capacity as a Divisional Court, we recall our order insofar as it quashed the committal for trial to the Crown Court of the criminal damage offence.

Under section 228(2A) of the Criminal Justice Act 2003 in a case like the present the court may impose an extended sentence of detention only if the term that it would specify as the appropriate custodial term would be at least four years. The judge when sentencing implicitly acknowledged that the offence of arson on its own could not properly result in such a custodial term. He relied on the other offending in order to arrive at the necessary figure. One of the questions identified by the Registrar was whether the Crown Court, when identifying a custodial term for the purpose of passing an extended sentence on count 2, could take account of the offending that gave rise to the sentences imposed by the Youth Court. We do not need to decide that question, and we leave it over for determination in a case where the answer will affect the outcome of the appeal. It does not affect the outcome in the present case because, even taking account of all the other offending, a custodial term of 4 years would in our view have been manifestly excessive. The offences involved alarming violence and threats of violence. Bearing in mind the appellant’s age, however, they were not in such a category as would warrant a custodial term of 4 years. It was for that reason that we quashed the extended sentence imposed by the judge.

In its place we imposed on count 2 for the offence of arson a sentence under s 91 of the 2000 Act of 2 years 6 months’ detention. Ms Thorne accepted that a determinate custodial sentence, albeit for a term significantly less than 4 years, was appropriate. We have been assisted by a report prepared for this court which explained how, after seriously disruptive behaviour during the period to August 2011, the appellant appeared to have settled down. In considering the appropriate determinate term we have regard to the principal aim of the youth justice system (to prevent offending by children and young persons), to the welfare of the appellant, and to the Definitive Guideline Overarching Principles –Sentencing Youths issued by the Sentencing Guidelines Council in November 2009. We note that the arson did not cause substantial monetary damage, but it was nevertheless a grave offence carrying obvious dangers not merely to property but also to human life. When arriving at a term of 2 years 6 months we did not take into account the appellant’s criminality in committing the offences which were dealt with in the Youth Court. In that regard we have not sought to determine whether the Crown Court has power to do so. We simply record that those offences were committed by the appellant, will have been punished by the sentences which we set out (in our capacity as a Divisional Court) at paragraph 42 below, and are not matters for which the Crown Court sentence seeks to punish the appellant. Since the hearing we have recalled our order quashing the committal on count 1, and thus a question might arise as to whether the sentence for arson might appropriately be increased to take account of the criminal damage associated with it. In the circumstances of the present case we do not think it would be appropriate to do so. In relation to the criminal damage on count 1 our order will be revised so as to impose no separate penalty.

Our reasons for our order as a Divisional Court quashing the Youth Court sentences have been given above: there was no power in the Youth Court to impose sentences of detention. Under section 43(1) of the Senior Courts Act 1981 we do not quash the convictions in the Youth Court, but instead we substitute sentences which we arrive at after having regard to the principal aim of the youth justice system (to prevent offending by children and young persons), to the welfare of the appellant, and to the Definitive Guideline Overarching Principles –Sentencing Youths issued by the Sentencing Guidelines Council in November 2009. We replace the sentences for the offences on 22 to 23 May 2010 with the following: on offence 1, criminal damage (to the tyres), no separate penalty; on offence 2, possessing a bladed article, no separate penalty; on offence 3, assault occasioning actual bodily harm, a detention and training order for a period of 8 months; on offence 4, possession of an offensive weapon (the pool cue), a detention and training order for a period of 4 months, and on offence 5, threatening behaviour (the incident with the police), no separate penalty. For the offences on 27 and 30 May 2010 we replace the sentences with the following: offence 1, threats to kill, a detention and training order for a period of 4 months, on offence 2, affray, a detention and training order for a period of 4 months. All these sentences run concurrently to each other. They all commence with effect from 8 October 2010, and thus run concurrently with the replacement sentence of 2 years 6 months’ detention imposed by the Crown Court.

Once Ms Thorne had advised that the extended sentence imposed on 8 October 2010 was wrong in principle and manifestly excessive the case needed to be progressed urgently. There was a real risk that if the appeal succeeded the sentence substituted by the court would involve a period in custody prior to release on licence which would by that time already have been exceeded. In the event, the appellant’s disruptive behaviour while in custody led to a further sentence being imposed. The result may be that the appellant has not served a significantly longer period in custody than would have been appropriate in the light of our decision.

It is particularly regrettable that in the present case, when HHJ Ross sought assistance from counsel then appearing, his attention was not drawn to the difficult questions which arose. It is at least possible that in that event some of the problematic features in the present case might not have arisen.