Hyde & Ors, R v

This is the judgment of the court.

These appeals and applications have been listed together to enable the court to consider in a number of varying contexts a point of practice which seems to have given rise to a divergence of approach between High Court Judges who are considering on the papers under s. 31 of the Criminal Appeal Act 1968 (“the 1968 Act”) applications for leave to appeal against sentence.

In its essentials the point comes to this. Is the Single Judge entitled, if he or she considers that some of the grounds of appeal are arguable and some not, to grant leave to appeal on limited grounds only? Or is the Single Judge required in such a situation to grant leave on (or refer to the Full Court) all grounds of appeal?

There is currently no Practice Direction or Rule covering the point.

The former viewpoint is expressed in paragraph A10-1 of the Guide to Commencing Proceedings in the Court of Appeal Criminal Division (“the blue book”). It is there stated that in both conviction and sentence cases the Single Judge may where appropriate grant limited leave: that is, leave to argue some grounds before the Full Court but not others. The latter viewpoint, which is founded on a reading of s. 11(2) of the 1968 Act, is put forward by the authors, Alix Beldam and Susan Holdham, of the widely used Court of Appeal Criminal Division - A Practitioner’s Guide (2012) (“the purple book”). The authors have unsurpassed knowledge and experience of the law and practice relating to criminal appeals. At paragraph 5-095 they say this on applications for leave to appeal against sentence:

“If a single judge finds merit in some grounds but not in others, he should not grant leave on some grounds and refuse leave on others because of s. 11(2). He should grant leave generally and grant a representation order generally but indicate the grounds which he considered arguable and those which he did not.

If the single judge sees merit only in the grounds relating to an ancillary order (such as a disqualification from driving or an order for the destruction of a dangerous dog) and would have refused the other grounds, he should grant leave generally because of s. 11(2) but grant a representation order relating only to the ancillary order.”

It can straightaway be said that the latter viewpoint, even if reflecting an understanding of the court’s practice, is an inconvenient and in many ways unexpected conclusion. It is inconvenient because it means that the filter, and de facto case management, system comprehended by the s. 31 scheme, designed to save court time and to save resources, will not have been operated to full effect and in consequence the time of the Full Court may have to be directed at considering grounds previously considered not to be arguable. It is unexpected because it means that a sharp distinction for no obvious reason of principle is drawn between applications for leave to appeal against conviction (where a Single Judge may routinely and unexceptionally grant leave on limited grounds) and applications for leave to appeal against sentence.

The point also has implications in terms of cost in the situation identified in the purple book: because ordinarily no representation order will be available to counsel for renewing grounds refused by the Single Judge.

Section 9(1) of the 1968 Act gives a general entitlement to a person who has been convicted of an offence on indictment to appeal to the Court of Appeal against any sentence (other than one fixed by law) passed on him for the offence; whether passed on his conviction or in subsequent proceedings.

By s.10(1), the entitlement to appeal is extended to persons dealt with by the Crown Court (otherwise than on appeal from the Magistrates Court) for an offence of which he was not convicted on indictment. The proceedings to which that applies are identified in s 10(2) and (3).

In the relevant respects s. 11 provides as follows:

“(1)

Subject to subsection (1A) below, an appeal against sentence, whether under section 9 or under section 10 of this Act, lies only with the leave of the Court of Appeal.

(1A) If the judge who passed the sentence grants a certificate that the case is fit for appeal under section 9 or 10 of this Act, an appeal lies under this section without the leave of the Court of Appeal.

(2)

Where the Crown Court, in dealing with an offender either on his conviction on indictment or in a proceeding to which section 10(2) of this Act applies, has passed on him two or more sentences in the same proceeding (which expression has the same meaning in this subsection as it has for the purposes of section 10), being sentences against which an appeal lies under section 9 (1) or section 10, an appeal or application for leave to appeal against any one of those sentences shall be treated as an appeal or application in respect of both or all of them.

On an appeal against sentence the Court of Appeal, if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below may—

quash any sentence or order which is the subject of the appeal; and

in place of it pass such sentence or make such order as they think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence;

By s. 22 there is a general entitlement for an appellant to be present at the hearing of the appeal. Stipulated exceptions include (by s. 22(2) and by Criminal Procedure Rule 39.11) where the appeal is on a question of law and an application for leave to appeal.

By s. 31 it is provided that a Single Judge may exercise in the same manner as the Court of Appeal the powers there specified. Such powers include the power to give leave to appeal. By s.31(3) if an application is refused by the Single Judge the applicant is entitled to seek to have the application determined by the Full Court. To do so, he must comply with the requirements, and time limits, stipulated in Criminal Procedure Rule 36.5.

Finally, for present purposes, the provisions of s. 50 may be noted. They give a wide, non-exhaustive, meaning of “sentence”: which is extended to an order made by a court when dealing with an offender, including in particular (among others) hospital orders and confiscation orders and other matters there identified.

There is nothing on the face of these provisions, in this court’s judgment, to preclude a Single Judge from granting leave to appeal on limited grounds on an application relating to sentence.

It was nevertheless submitted to us that paragraph 5-095 of the purple book is correct and that s. 11(2) precludes the grant of limited leave on sentence appeals. We do not consider that to be either the intention or the consequence of the language used in that sub-section. The broad effect of the wording is to preclude an applicant making multiple or successive appeals against sentence passed on the same occasion and to preclude an applicant “banking” one constituent part of his sentence whilst challenging another part. (We say nothing here as to the extent to which more than one appeal against sentence may in some circumstances – for example relating to ancillary orders – be permitted. It has been decided, for instance, that an appeal against a custodial sentence does not preclude a further appeal against a subsequent confiscation order: Neal [1999] 2 CAR (S) 72; Hughes [2010] 1 CAR (S) 25. Such cases will hereafter have to be decided as and when they arise.) The wording of s. 11(2) thus does not, in our judgment, have the effect of precluding the Single Judge from an entitlement to grant leave to appeal against sentence on limited grounds or to grant leave to appeal against part of a sentence.

In fact, so much has been decided by a previous decision of a constitution of this court in Cox & Thomas [1999] 2 CAR 6. The court (Lord Bingham LCJ, Ian Kennedy J and Jackson J) there considered this very point of practice. It was specifically held after a detailed consideration of the matter that, both on leave applications relating to conviction and on leave applications relating to sentence, the Single Judge may grant leave on limited grounds. It follows that, as the court pointed out, if an applicant wishes to pursue those grounds in respect of which leave has been refused by the Single Judge he must renew his application for leave in respect of such grounds before the Full Court. He has no entitlement to appeal on those grounds. Further, in our opinion, it follows that if a new ground is added after the decision of the Single Judge the applicant likewise will need the leave of the Full Court.

At paragraph 5-095 of the purple book it is suggested that there is “some tension” between the decision in Cox & Thomas and s. 11(2). That decision does refer to the provisions of s. 11 “so far as relevant” (p.8), albeit not expressly setting out or referring to s. 11(2), which presumably was not considered important enough to quote. It can hardly be thought that the decision was per incuriam on this point. In any event, we agree with it. Section 11(2) is not inconsistent with the conclusion expressed in Cox & Thomas.

This conclusion permits us to express some further observations on applications where limited leave is appropriate.

One common situation arising is where a part of a sentence is identified as unlawful. Frequently, such errors are identified by the Criminal Appeal Office where applications on entirely unrelated grounds have been lodged (we take this opportunity of reminding practitioners that it is their responsibility in all cases to remind themselves of the Crown Court’s relevant sentencing powers in advance of the sentencing hearing; and, if error is identified thereafter, to utilise the provisions of s. 155 of the Powers of the Criminal Court (Sentencing) Act 2000 where available). The error may be of a wholly technical kind: for example where - as in one of the cases before us – a term of years has been expressed as “imprisonment” when it should have been expressed as “detention (in a Young Offender’s Institution)”. Another example may be where a concurrent sentence on a multi-count indictment is in excess of the statutory maximum under the legislation applicable at the time of the offence but where correction of such sentence can have no conceivable impact on the correctness of the totality of the overall sentence. There will be other examples. In such circumstances, it is entirely proper for the Single Judge to refuse leave to appeal on all other grounds advanced for which the Single Judge thinks there is no arguable basis and simply to grant leave to appeal on that part of the application for correction by the Full Court of the unlawful element of the sentence. That correction ordinarily will be directed to be done “on the papers” and with no grant of a representation order. The Full Court (whilst dealing with the correction of the sentence in open court) will have considered the matter in advance on the papers and no representation by counsel will be called for or justified. But what is not normally appropriate or necessary in such cases is for the Single Judge to refer the whole application to the Full Court. The simplest course in such a case is to grant leave to appeal limited to the correction of the unlawful aspect of the sentence and withholding the grant of a representation order for that purpose.

We also add that where the Single Judge grants leave to appeal for the sole purpose of correcting a legal slip or unlawful sentence, and limited to that ground, the appellant ordinarily will have no right of attendance: as the prospective appeal will be on a point of law only.

We would note that if in any particular case leave to appeal has been granted on a limited basis then the effect of s. 29(2) of the 1968 Act seems to be that no loss of time direction thereafter can be made by the Full Court if the applicant unsuccessfully renews those grounds for which leave was refused (a point, incidentally, which we consider does not affect the meaning and effect of s. 11 as discussed above). Limited leave does not, however, preclude the Full Court from restructuring a sentence under s. 11(3), provided there is no more severe outcome than was the outcome below.

Another consequence of the Single Judge’s entitlement to grant leave to appeal on limited grounds relates to sentences which include a sentence for a Bail Act offence. In the Crown Court an offence of failing to appear under s. 6 of the Bail Act 1976 is treated as if it were a contempt of court. There is an entitlement to appeal, subject to compliance with the 28 day time limit, against such a sentence under s. 13 of the Administration of Justice Act 1960: no leave of the Single Judge is required. Further, the sentence will not be in respect of a conviction on indictment and also will not be within the ambit of s. 10 of the 1968 Act. Accordingly s. 11 will not be engaged.

That a total sentence imposed by a Crown Court includes, as one element, a sentence for a Bail Act offence does not mean that leave to appeal on all grounds, or reference to the Full Court on all grounds, is then required to be given by the Single Judge. In many cases, the sentence imposed for the Bail Act offence will in fact attract no ground of appeal at all: the grounds will relate solely to other aspects of the overall sentence. The Single Judge thus considers those grounds in the usual way and decides whether or not to grant leave to appeal on them. But even where there is raised, as one ground, a challenge to the Bail Act sentence (and so there is an entitlement to an appeal hearing before the Full Court) the Single Judge is still free to assess any other grounds raised and, if the Single Judge sees fit, to refuse leave on those grounds.

That leads into a consideration of the issue of totality, which so often features in appeals against sentence. It is important to emphasise the obvious: that the Single Judge is empowered to grant leave to appeal on limited grounds, where the Single Judge considers some grounds not to be arguable, does not mean that the Single Judge necessarily should in all cases. There may well be cases where grounds advanced are clearly discrete. An illustration of this may be, for example, be where there is a ground of challenge to, say, a trial judge’s finding of dangerousness and consequential decision to impose an extended sentence and a second ground of challenge to the actual length of the custodial element of the extended sentence. The Single Judge would in such a situation be perfectly entitled, where appropriate, to refuse leave on the first ground and grant leave on the second ground: indeed, to do so reflects a proper application of the filtering system and may well be a valuable saving of the time of the Full Court and of resources. There will be many such cases.

But equally there will also be many cases where the grounds, even if in formal terms separately formulated, in truth overlap or have a cumulative impact. There will be cases where what is in issue – by however many grounds it is formulated in conformity with Criminal Procedure Rule 39.3 – is in the last analysis one of totality. In such instances, the Single Judge may well think it much more convenient (if the Single Judge thinks there is overall merit in the proposed appeal) to grant leave generally. There thus will be cases where a Single Judge, having assessed some particular grounds as arguable, sees no practical point in precluding the applicant from arguing the remainder of the grounds before the Full Court. This was precisely the point made by Lord Bingham in Cox & Thomas at p 11G – 12C.

In this context, however, it should be stressed that, where the Single Judge intends to grant only limited leave, that should be made clear on the Form SJ itself: in at least one of the cases before us it was not wholly clear just what the appellant was being given leave to argue and what he was not.  Accordingly, in the part of the SJ form setting out the Single Judge's Reasons for Decision the position should be clearly identified.  That may well of itself suffice. But it would also be good practice, in the preceding part of the SJ form which is headed Decision, in addition to specify (if it is the case) that leave to appeal against sentence is limited: for example by saying: "granted, limited as set out in the Reasons below" or "granted (limited to Grounds 1 and 4)"; or by some other means which are unambiguous.

This leads to a further point. In Cox & Thomas, it is (in our respectful view, rightly) said that it is not always necessary for a Single Judge to grant or refuse leave on each specific ground advanced.  Often, of course, to deal specifically with each ground may well be a convenient course to adopt.  But in other cases - for example, where the grounds, although in point of written form raised as distinct numbered grounds, are in reality variations on a single theme of totality; or, by way of another example, where a litigant in person, even when trying his best, has presented a hugely lengthy and unstructured assembly of "grounds" - it will not always be necessary or practical to do so.  If a Single Judge grants leave to appeal generally then all of such grounds may be advanced.  If a Single Judge refuses leave to appeal then that refusal likewise extends to all grounds advanced, whether discussed specifically in the Reasons for Decision or not. But what if the Single Judge grants leave focusing on specific grounds without expressly refusing leave on the other grounds?  

In Cox & Thomas the following is stated at page 10F-11A,

“There is, however, a further and important practical question: is it necessary or desirable where more than a single ground of challenge is advanced against conviction or sentence for the single judge to grant or refuse leave on each specific ground? To that question we answer that it is certainly not necessary. If, having identified a ground or grounds as justifying the grant of leave to appeal, the single judge grants such leave either generally or on those grounds without expressly refusing leave on any of the grounds put forward, it is open to the appellant to rely on any of the grounds advanced, whether the single judge has singled out a particular grounds for approval or not. This is very often a convenient course for single judges to adopt. The burden on judges exercising their jurisdiction under section 31 is very great. If, in a heavy case in which numerous grounds of appeal are relied on, the single judge identifies one as plainly justifying the grant of leave, it will often be convenient and efficacious to grant leave on that ground without going further. It is then open to the appellant to pursue any of the grounds relied on. But it may very well be that in the event of other grounds may never call for detailed consideration at any stage.”

We should also say something about applications for leave to appeal against sentence which require a very lengthy extension (as opposed to a short extension) of time: the position in one of the cases listed before us.  If the Single Judge takes the view that there is no proper explanation for the delay and no proper basis for granting the extension of time or leave to appeal there is no problem: the application will be refused. In this regard the general approach indicated in Wilson [2016] EWCA Crim 65 should be borne in mind.  But if the Single Judge takes the view that there may be a point worthy of argument before the Full Court, notwithstanding the great delay, the Single Judge should ordinarily not grant the very lengthy extension sought or grant leave.   Rather the entire application should normally then be referred to the Full Court (the Single Judge giving such brief reasons for so doing as is thought appropriate).  

Mr Heptonstall for the Crown (for whose submissions generally we have been grateful) suggested that this court should give guidance as to how the Single Judge should exercise discretion in deciding when it would be suitable to grant leave on limited grounds and when it would be suitable to grant leave generally on all grounds.  We decline the invitation.  The multi-faceted combination of circumstances that can arise on applications for leave to appeal against sentences is such that guidance would be neither helpful nor practicable.  The matter can safely be left to the discretion and evaluation of the Single Judge in each case.  And if there are cases - as there assuredly will be - where the Single Judge is particularly impressed by one ground but thinks it appropriate to grant leave generally on all grounds, it is always open to the Single Judge to give a steer as to his or her particular thinking in the Reasons for Decision. Indeed, the Full Court may well be greatly assisted by that.

Nothing we have said should be taken to displace the Registrar’s powers to refer, in an appropriate case, any particular application for leave to appeal against sentence directly to the Full Court, without it being placed before the Single Judge on the papers. To do so is particularly useful where an appeal against a short custodial sentence is lodged; but there will be other instances and the Registrar and Criminal Appeal Office staff have great expertise in this. The norm remains, nevertheless, that applications will be placed before the Single Judge as part of the statutory filtering process.

In summary the position is this:

The Single Judge is entitled to grant leave to appeal against sentence on limited grounds or against part of a sentence only.

The limited basis on which leave to appeal is granted should be made unambiguously clear on the form SJ.

It is a matter for the discretion and evaluation of the Single Judge (where not refusing leave outright on all grounds) as to whether to grant leave to appeal on limited grounds or whether to grant leave to appeal generally.

If an applicant desires to pursue those grounds for which leave to appeal has been refused by the Single Judge he is required to renew his application in the usual way within the prescribed time limit.

Where the Single Judge has granted leave, either generally or on a limited basis, leave from the Full Court is required to advance a further ground formulated since the Single Judge’s decision.

If limited leave is granted by the Single Judge together with a Representation Order, that funding is limited to the ground(s) identified as arguable by the single Judge. It will only extend to arguing renewed grounds of appeal if the Full Court subsequently grants leave on the renewed grounds.

No different approach is called for where one element of the sentence relates to a Bail Act offence (although of course leave is not required to argue any ground challenging a sentence for a Bail Act offence).

Where a sentence requires to be corrected in order to put right an unlawful element of the sentence, but the totality of the sentence will not arguably be affected by correction of such error and there are no other grounds considered arguable and there is no other complexity, the Single Judge ordinarily should grant leave to appeal on that part of the sentence only, withholding a grant of representation order; the matter will then be dealt with by the Full Court as a non-counsel application.  If in such a case any other grounds have been raised and rejected by the Single Judge the applicant is then required to renew in the usual way if he wishes to pursue those grounds.

We turn to the individual appeals and applications before us.

Hyde is now aged 46. On 29 June 2015 in the Crown Court at Plymouth at the plea and case management hearing he pleaded guilty to a single offence of conspiracy to supply cocaine. On 24 July 2015 at the same court he was sentenced to a term of 9 ½ years’ imprisonment. He now appeals against that sentence by leave of the single judge. The grounds of appeal considered by the single judge argued that the sentencing judge had failed to give proper credit for the appellant’s plea of guilty. There were two limbs to the argument. The first limb concerned the judge’s decision to reduce credit because the appellant had absconded whilst on police bail. It was said that the extent to which he had reduced credit on that basis was excessive. The second limb concerned an indication of the appropriate credit said to have been given at the first hearing in the Crown Court, namely that another judge then had indicated that full credit for plea was preserved. The Single Judge gave leave to appeal in respect of the second limb i.e. full credit should have been given due to what was said at the early hearing. That is the only point on which leave was given.

For the reasons we have given this was an appropriate exercise of the Single Judge’s power to grant leave on limited grounds only. Although both points raised in the grounds of appeal related to credit for plea, they were discrete issues. This was not a case in which there was such overlap between the points raised that it was necessary or appropriate to grant leave generally. Had the appellant wished to pursue the argument relating to reduction of credit because he absconded, he would have had to renew his application for leave. In the event a renewed application was not made. The argument was not pursued. We need say nothing more about it.

Subsequent to the grant of leave by the Single Judge the appellant’s solicitors put in further grounds which raised a wholly new point, namely the failure of the sentencing judge to specify in open court the number of days for which the appellant was kept in custody in Holland whilst he was awaiting extradition. That failure has resulted in a refusal by the Prison Service to apply those days as remand time. Had this been identified within 56 days of the sentence being imposed, this is the type of slip which could have been dealt with under the provisions of section 155 of the Powers of Criminal Courts (Sentencing) Act 2000. Since it was not, the route by which the position can be rectified is by an appeal to this court. We shall grant leave in relation to this further ground. Had this issue been the only subject of appeal, the single judge’s proper course would have been as set out at paragraph 19 of this judgment, namely to grant leave to appeal to enable the Full Court to correct the slip without a grant of a representation order for that purpose.

The conspiracy to which the appellant pleaded guilty involved the supply of cocaine in bulk over a period of about seven months from September 2011 onwards. The cocaine was brought from London to the South West of England, in particular Devon and Cornwall. There were regular trips by those involved in the supply from London to the West Country with each trip involving about ½ kilo of cocaine. Over the period of the conspiracy around 10 kilos of cocaine were supplied. The appellant, who lived in Sussex at the relevant time, took part in many of those trips in association with others. He acted as a shadow of those who actually carried the drugs and facilitated their supply. When in January 2012 the police arrested the appellant, he was on a train travelling back from Cornwall to Paddington. He had £1,000 in cash with him.

The appellant had a significant criminal record. In particular, in 2008 he was sentenced to a period of 5 years’ imprisonment for an offence of possession with intent to supply cocaine.

That relatively brief recitation of the facts and the appellant’s antecedents is sufficient to allow proper assessment of the level of harm and the appellant’s role. Within the Sentencing Council definitive guideline the offence fell within Category 1 in relation to the amount of drugs involved. The appellant had a significant role in the supply i.e. as part of the wholesale supply operation rather than as a customer. The appellant’s previous conviction for a drug trafficking offence involving cocaine justified a sentence at the upper end of the category range. In those circumstances a starting point of 12 years’ imprisonment as identified by the sentencing judge cannot be criticised. It is of significance that the same judge had sentenced the other conspirators, some of whom he had tried. He was ideally placed to assess the role of the appellant. The grounds of appeal accepted that this starting point could not be said to be excessive.

The appellant pleaded guilty at the PCMH. Ordinarily that would indicate a reduction in sentence from the starting point of 25%: Caley [2013] 2 CrAppR (S) 47. The sentencing judge reduced the credit for plea to approximately 20%. He did so because the appellant, having been granted bail after his arrest in January 2012 and after various extensions of his bail, failed to attend in January 2013. As he put it in his sentencing remarks the judge concluded that the appellant should not receive full credit “because you were on the run for 2 years”. The appellant always has accepted that this approach was not wrong in principle. As we have indicated above the appellant now accepts that the arithmetical reduction was appropriate.

The issue for us to determine is whether the appellant is indicated his willingness to plead guilty at the first hearing and whether he was entitled to full credit as a result of what was said by the judge at the first hearing in the Crown Court. In the course of his opening prosecution counsel told the sentencing judge that “the note I have seen of the preliminary hearing indicated that the defendant was saying at that stage through his legal representatives that there was likely to be a plea.” He also said that the plea in fact was not tendered until the PCMH. The sentencing judge made no reference in his sentencing remarks to this supposed indication or to its effect on credit for plea.

The grounds of appeal assert that the judge at the first hearing “stated in open court that in the event of a guilty plea at his PCMH…… (the appellant) would receive a full third discount on his sentence.” We now have a transcript of that hearing. The appellant was not represented then by counsel who appeared at sentence and who appears before us today. All that was said by counsel at the first hearing in relation to plea was that “it may well be, it remains to be seen, that there is not going to be a trial in this matter because we already have quite a lot of papers…” Counsel went on to say that it was a substantial case “so if the position changes in terms of whether or not the defendant is pleading guilty we will notify the court as soon as we can.” None of that constitutes an indication of a willingness to plead guilty. The judge’s response to counsel’s reference to notifying the court was to say “if you do that then you will have a good argument when Judge Mercer (the eventual sentencing judge) gets it for him attaching whatever credit he feels appropriate.” That comment does not begin to amount to an indication of full credit being preserved to the PCMH. The extent of credit for plea was left to the discretion of the sentencing judge which he duly and properly exercised.

There is no basis in fact for the argument that the appellant was given any indication that he would be given full credit for his plea. His appeal against the sentence of 9 ½ years’ imprisonment must be dismissed.

As we have already noted the appellant failed to answer his bail in early 2013. He fled the jurisdiction. He was eventually arrested early in 2015. He spent 35 days in custody while awaiting his extradition. He fell within the definition of “an extradited prisoner” for the purposes of Section 243 of the Criminal Justice Act 2003. Section 243(2) requires a judge sentencing an extradited prisoner to specify in open court the number of days for which the prisoner was in custody while awaiting extradition. If that is not done, the Prison Service has no authority to apply those days to the sentence imposed by the Crown Court. In this case no-one reminded the sentencing judge of the requirement. He did not specify the number of days. We now do so. The sentence imposed in the Crown Court will be adjusted to specify 35 days spent in extradition custody. To that extent only this appeal is allowed.

This is a case to which the Sexual Offences (Amendment) Act apply. No matter likely to lead members of the public to identify the victim of the offence shall be included in any publication.

The appellant is 21. Prior to December 2015 he had no criminal convictions. On 3 December 2015 in the Crown Court at Aylesbury he was convicted of a single offence of assault by penetration. On 22 December 2015 he was sentenced to 6 years’ imprisonment. He appeals against that sentence by leave of the Single Judge. In giving leave the single judge referred only to the argument that the sentencing judge failed to give sufficient credit for the appellant’s lack of any previous convictions and general good character. That was the sole matter raised in the application for leave to appeal.

Following the grant of leave, the appellant dispensed with the services of counsel and solicitors who had represented him at the Crown Court. New counsel was instructed. She provided the Full Court with a document headed “Additional Written Submissions”. The document raised a fresh argument though it was not expressed as a further ground of appeal and no application for leave to appeal on this fresh ground was made. The further ground was that the sentencing judge placed the offence in the wrong category in the Sentencing Council definitive guideline in relation to sexual offences. In argument counsel now instructed accepted that the Full Court would have to give leave for this further ground to be considered. This is not a case in which the two issues now raised overlap or have a cumulative effect. The ground on which leave was given proceeds on the assumption that the starting point taken by the judge was correct, the only criticism being that the judge failed to reduce the sentence sufficiently to allow for mitigating factors. The new ground seeks to attack the judge’s finding in relation to the starting point. These are discrete grounds.

The appellant was an acquaintance of the young woman whom he assaulted. She and her partner had been introduced to the appellant by a mutual friend about a week prior to the offence. On the evening of 11 April 2015 the appellant was at the home of the complainant and her partner. They were drinking together. In the early hours of the morning the complainant’s partner went upstairs to bed saying that he felt unwell. The appellant and the complainant stayed downstairs in the living room and continued drinking. In due course the complainant fell asleep on a sofa. As she slept the appellant pulled her off the sofa and onto the floor. The complainant clearly was deeply asleep or affected by drink or both. She did not wake. The appellant pulled a cover over them as he lay down beside her. He then penetrated her digitally. The complainant woke up as this happened and jumped up wanting to know what had happened. The appellant left shortly afterwards. He was arrested the same morning.

Some of what occurred was captured on a CCTV camera within the living room. The appellant was interviewed during which he was shown the CCTV footage. This court has had the opportunity to view the footage. The appellant chose to make no comment to the police.

The appellant’s case at trial was that he had formed some kind of mutual romantic attachment with the complainant and that any sexual activity was consensual. The jury rejected that account. Nonetheless, the appellant maintained it when speaking to the author of the pre-sentence report.

The judge in sentencing the appellant said that he had taken advantage of a young woman who “was dead to the world” in part due to the effects of alcohol. By reference to the Sentencing Council definitive guideline he described the offence as “a Category 2 case.” Although the sentencing judge did not spell it out, he must have found that the complainant was particularly vulnerable due to her personal circumstances i.e. due to her being comatose. There were no higher culpability factors so the case fell into culpability level B i.e. a starting point of 6 years’ imprisonment.

As we have indicated counsel now instructed wishes to argue that the sentencing judge was wrong in reaching that finding as to the level of harm despite the general consensus in the court below that this was a case involving a particularly vulnerable victim. Counsel seeks to say that the sentencing judge was not entitled to conclude that the complainant was in the state he described even though the judge heard the trial, a trial at which she was not present. We do not consider that it is arguable that the sentencing judge was not entitled to reach the view he did about the vulnerability of the complainant. For the avoidance of doubt, we are quite satisfied that a young woman who is in such a deep sleep due to the consumption of alcohol and the effects of tiredness that she can be pulled to the floor from a sofa and then digitally penetrated without her state of consciousness being disturbed is particularly vulnerable due to her personal circumstances. We decline to grant leave in relation to the additional ground of appeal.

The Single Judge gave leave because the sentencing judge did not refer to the appellant’s lack of previous convictions in his sentencing remarks when such lack is identified as a mitigating factor. However, the Single Judge went on to say this: “Although 6 years could easily be justified for this offence, even taking account of the applicant’s lack of previous convictions, noting the aggravating features identified by the judge, I grant permission to argue these grounds.” There were indeed aggravating factors to be taken into account. This was an offence committed in the complainant’s own home by a man whom she had invited as a guest. He committed the offence when under the influence of alcohol. It follows that we agree with the Single Judge when she said that the sentence imposed “could easily be justified.” Any mitigation available to the appellant was counterbalanced by the aggravating factors. There was nothing wrong with the sentence imposed. This appeal is dismissed.

The appellant Stokes pleaded guilty in the Crown Court at Middlesborough on 2 December 2015 to an offence of conspiracy to commit blackmail; the appellant McGinley on the same occasion also pleaded guilty to that offence and in addition pleaded guilty to an offence of transferring criminal property. Stokes was sentenced to a term of 45 months’ imprisonment. McGinley was sentenced to a term of 54 months’ imprisonment on the conspiracy count, with a concurrent sentence of 12 months’ imprisonment on the further count.

Leave to appeal was granted by the Single Judge, but limited to a ground challenging whether appropriate credit had been given for the pleas. Consequently to the extent that they seek to pursue their other grounds these appellants have been required formally to renew their application on those grounds.

Shortly put, the background facts are these. A farmer in North Yorkshire had in around 2005 been duped by two men whom he described as “two Irish guys” into parting with some £100,000 in cash for a digger which never materialised. No further steps were taken, the men were never identified and the complainant heard nothing more about it until 2015.

On 24 August 2015, Dennis McGinley turned up at the complainant’s farm. He clearly knew of the previous incident. He told the complainant that he (McGinley) could retrieve the money: warnings were also given, however, to the complainant about how the complainant came to have the money in the first place, it being insinuated that it derived from criminal activity. At all events, the complainant was told that for a fee it could be arranged for the money to be returned. Between the date of that meeting and 3 September 2015 the complainant was induced to pay over in cash, on various occasions, as much as £196,000 in total. The deliveries were arranged over the telephone. Threats of death and violence to the complainant and his family were made in such calls. The locations where the money was handed over included Richmond market place and a car park in Darlington. Further pressure was applied after each delivery for more and larger payments by the man, styling himself “Big Boss Man”. The threats of violence continued. The complainant was told that he would get a bullet in his head if he did not pay. When he eventually said that he had no more money, Big Boss Man told him that his entire family would be killed. The complainant believed these threats. He borrowed money to keep making the payments.

On one occasion, on instructions, he travelled to London to hand over cash. Dennis McGinley, his wife Bianca and the appellant McGinley (who is Dennis McGinley’s younger brother) then went on a spending spree with the money.

Still the demands continued, accompanied by threats, including threats of a bullet to the head. Further handovers at various locations took place. Eventually the complainant went to the police. The appellants (and Dennis McGinley) were arrested on 8 September 2015. So far as these two appellants were concerned cell-site evidence linked Stokes to eight of the handovers and Bernard McGinley to five of the handovers.

They made no comment in interview.

Detailed bases of plea were entered by both in the due course. The bases were accepted, or at least not challenged. Both appellants were not particularly forthcoming in their bases as to what their actual roles and involvement were: they were rather more forthcoming about what they were not.

Stokes was to say that he was not the planner, had joined the conspiracy after it had commenced, had never actually met or telephoned the complainant, had not been present when the demands were made and had never taken delivery of any cash. It was said that he was essentially used as a back-up driver and received £5,000 for his assistance.

Bernard McGinley was to say in his basis of plea that he was involved by “lending support by my continued presence”. He did not organise the conspiracy, was not involved in any of the telephone calls and was not present when actual handovers of cash occurred. He joined the conspiracy after it started.

Stokes is aged 44. He is married with a family. He has no previous convictions. Bernard McGinley is aged 25 and married with a family. He was treated as of effective good character.

It is right to record that compensation in respect of all of the money has since been made to the complainant.

Dennis McGinley (aged 40) was the leader of the group, if not of the overall operation. It is to be noted that he had been sentenced to 8 years imprisonment in 2010 for conspiracy to defraud, blackmail and money laundering offences. The resulting confiscation order was for over £800,000 in his case on that occasion.

The ground of appeal for which leave was granted is based on an assertion that the judge had given insufficient credit for the pleas. What had happened was this. There was a plea and case management hearing before the Recorder of Middlesborough on 27 November 2015 which, for various reasons, had to be adjourned without the defendants being arraigned (the actual sentence hearing eventually took place 18 February 2016).

This court now has a transcript of the hearing of 27 November 2016. Near the outset the judge indicated that “I haven’t made up my mind about credit yet.” There was then a discussion about adjournment; and the Judge adjourned the case until next Wednesday. Mr Singh, then appearing for Stokes, asked that “in his case credit remains intact until next Wednesday”. The judge agreed that it would not be right to force people into arraignment on 27 November 2015. Another counsel then asked that “credit might be preserved”. The judge then said: “A line in the sand in relation to credit is 10 o’clock, 2^nd December.” He confirmed that applied to all defendants. The defendants thereafter pleaded at the adjourned hearing on 2 December 2015.

When he passed sentence on 18 February 2016, the judge stated that the defendants did not plead guilty at the first opportunity: he accordingly gave credit of 25% to each defendant. He then passed the sentences we have described. Dennis McGinley received a sentence of 88 months.

It is now said that by his statements on 27 November 2015 the judge had indicated that full credit would be maintained: and that is what counsel had understood. Accordingly, it is said, the judge erred in withholding full credit when he eventually passed sentence.

There is nothing in this point. Clearly, from a subjective viewpoint, the judge had had no such intention - because he would not otherwise subsequently have limited credit for the pleas to 25%. From an objective viewpoint there is also no basis for such a conclusion: and no legitimate expectation to the contrary should or could have arisen. At the outset of the hearing on 27 November 2015 the judge had indicated he had not made up his mind on credit for pleas. The subsequent reference to “drawing a line in the sand” was no indication of full credit being maintained. All it was was an indication that whatever credit was appropriate on 27 November would continue to be appropriate on 2 December. That is all. Thereafter (since the pleas were not at the first practicable opportunity, a preliminary hearing having taken place in September 2015 and the 27 November hearing being the plea and case management hearing) the judge was entirely justified in according credit of 25%. That the defendants may have wished (reasonably) to take further legal advice after 27 November and that the bases of plea were thereafter formulated is no bar to such a conclusion by the judge: see Caley [2013] 2 CAR (S) 47 at paragraph 14. A suggested discrepancy with the calculation of credit afforded to Dennis McGinley also provides no basis of challenge to the credit given to these two appellants.

We think, however, that there is rather more substance in the renewed grounds, for which we grant leave.

What is said is that the judge took too high a starting - point; failed to give appropriate weight to the mitigation; and overall passed sentences which were excessive. A principal focus of the argument was that the judge had placed insufficient weight on the bases of plea: these appellants, of previous good character, had not themselves made any threats of violence or even met the complainant: their role was essentially one of back-up, for limited financial gain to themselves: £5,000 for Stokes and the participation in the spending spree by McGinley. It was said that this case was of a less serious kind than that of, for example, Cunningham [2016] EWCA Crim 1884 where a sentence of 4½ years imprisonment was substituted on appeal - although in our view Cunningham is to be taken as a decision on its own special facts and circumstances.

Overall, however, we consider that there is force in these arguments. Accordingly, as announced at the hearing, we allow the appeals. In the case of Stokes the sentence is reduced to one of 36 months’ imprisonment (connoting a starting point, before credit for plea, of 48 months’ imprisonment). In the case of McGinley - who was convicted on two counts - the sentence is reduced to a sentence of 42 months’ imprisonment on Count 1. The appeals are allowed to the extent indicated accordingly.

This case, however, provides an illustration of a form SJ which perhaps is at first sight capable of being ambiguous. The decision, as stated on the form, was that permission to appeal against sentence was “Granted”. No reference to any limitation was there made. In the following Reasons for Decision on the form the Single Judge endorsed the decision of the judge to regard this as a “serious offence of blackmail”. The Single Judge further recorded his view that the starting point of 5 or 6 years (as the case may be) taken by the judge was not excessive. The Single Judge then went on to consider the ground relating to credit for plea and said “I give leave so that the Full Court can consider whether the judge did indeed give that indication”: the Single Judge properly also directing that the transcript of the hearing of 27 November 2015 be obtained (as it since has been).

Mr Herrmann on behalf of Bernard McGinley noted that in his Grounds of Appeal challenges had, among other things, been made to the credit for the plea (Ground 1); to the starting - point taken by the judge (Ground 2); and overall to the sentence as manifestly excessive (Ground 5). But there had also been grounds challenging the judge’s asserted failure to make sufficient deduction from the starting point because of the personal mitigation (Ground 3) and an asserted error on the part of the judge in unfavourably distinguishing McGinley from Stokes (Ground 4). Mr Herrmann submitted that the Single Judge had failed to deal expressly with these grounds: and in consequence, relying on Lord Bingham’s observations in Cox and Thomas at p 10F- G, Mr Herrmann said that he was entitled to advance these grounds on appeal without seeking further leave.

We do not agree. This involves too narrow an approach to the form SJ. It is clear enough that, read as a whole, the Single Judge was giving leave solely on the credit for plea point (and directing a transcript accordingly). His rejection of all the other grounds was sufficiently identified. As to the substance of those grounds advanced by Mr Herrmann we reject them as not arguable.

The appellant Williams was on 12 February 2016 convicted after a trial at Mold Crown Court of an offence of fraud and an offence of burglary. He was sentenced by the Recorder conducting the trial to a term of one year’s imprisonment on the fraud count and a consecutive five year term on the burglary count. The total sentence thus was one of six years’ imprisonment.

Three grounds of appeal were advanced. The first was that the Recorder placed the burglary too high up in the range indicated in the relevant Definitive Guideline. The second was that the Recorder placed the fraud too high up on the range indicated in the relevant Definitive Guideline. The third was that the Recorder failed adequately to consider principles of totality.  In giving leave the Single Judge indicated that a sentence of 5 years for the burglary could not be criticised; but he was persuaded that it was arguable that the sentence for the fraud did not, on the facts, accord with the relevant Guideline.  Having so stated, the Single Judge went on "It may be therefore that the total sentence of 6 years was too high".

Here too there is some possible ambiguity. It was accepted that in such circumstances leave was needed from the Full Court on Ground 1.  Prudently, the applicant has also renewed on Ground 3: although arguably the limited leave extended to that ground and was not confined solely to Ground 2. In the circumstances of this case, indeed, it might perhaps overall have been more convenient for the Single Judge to have granted leave to appeal generally.

The facts can be shortly stated.  The applicant was a salesman for a home improvement company working in North Wales.  On 19 February 2015 he attended the home of the complainant - a widow in her sixties, since deceased - to sell products.  She ordered new windows.  He requested a deposit of £2,000 which she paid in cash.  However, the applicant then falsified the deposit forms, so as to indicate a total deposit of £1,050 payable to the company. He retained the balance for himself. This represented the fraud count.  

A month later the appellant telephoned the complainant.  He pretended to be from the Post Office.  He asked her to attend the Post Office to collect a parcel.  She did so.  Whilst her property was thus left empty, he gained entry by smashing a window.  The house was ransacked.  Around £20,000 in cash and a number of family heirlooms and items of significant sentimental value were taken.

The appellant is 46 years of age.  He had minor previous convictions of some antiquity.  He had no previous convictions for burglary.  There was no pre- sentence report.

The Recorder in passing sentence described the offending as calculated, callous and cowardly.  He placed the burglary offence within Category 1 and said "in my judgment it falls towards the very top end of this category".  He said the victim was targeted and there was a breach of trust.  As to the fraud the Judge described it as of high culpability but low harm.  He placed it at "very much towards the top end" of Category 5 of the relevant Guideline and imposed a consecutive 1 year sentence.  He said that he had had regard to the principle of totality.

Miss Price submitted that each constituent sentence was placed too high up in the range and the totality of the sentence was excessive.  She rightly accepts that this was a Category 1 burglary, with a starting point of 3 years’ custody and a range of 2-6 years’ custody.  There had been theft of property of considerable sentimental value (as well as the £20,000 in cash) and a degree of ransacking, and the victim had been targeted and the burglary cunningly planned.  But she submitted that there were no further aggravating factors justifying so significant an upward adjustment to the starting point.   As to the fraud this was, she said, properly categorised as a Category 5B case: that connoted a range of a fine to 26 weeks’ custody.  But the Recorder had adopted a sentence at the very top of the range appropriate to Category 5A:  moreover that is based on loss of £2,500 for the starting point: and here the loss was just £950.

There is force in these points.  A total sentence of 6 years’ imprisonment was too long. In particular whilst this was a Category 1   burglary, a sentence of 5 years was too high up the range, unpleasant though this burglary was, for a man with no previous convictions for burglary.  The sentence on the fraud count was also too great a departure from the range and starting points indicated in the Guideline.  The resulting sentence overall is excessive as a matter of totality.  In the circumstances, we grant leave on Ground 1 and, to the extent necessary, Ground 3.  We allow the appeal by quashing the sentence on Count 1 and substituting a sentence of 3 months’ imprisonment; and by quashing the sentence on Count 3 and substituting a sentence of 4 years and 3 months’ imprisonment.  The total sentence thus becomes one of 4½ years’ imprisonment.

The applicant (now aged 50) was as long ago as 4 November 2005 sentenced in the Portsmouth Crown Court, following his plea of guilt to an offence of causing or inciting a child under the age of 13 to engage in sexual activity, to imprisonment for public protection.  The minimum term specified was 18 months (less time on remand).  He has remained in prison ever since. He had also been made the subject to a Sexual Offences Prevention Order, framed in extremely wide terms.

His applications for an extension of time and for leave to appeal against sentence were referred to the Full Court by the Single Judge (this occurring before the decision in Roberts [2016] EWCA Crim 71).  In view of the lengthy extension of time needed the Single Judge was right to refer the matter to the Full Court.  In doing so, the Single Judge very helpfully indicated that the point he considered potentially arguable was the making of a Sexual Offences Prevention Order where a sentence of imprisonment for public protection had also been imposed.  The Single Judge, again very helpfully, indicated his view that there was no substance in the ground which challenged the finding of dangerousness and the imposition of imprisonment for public protection.

The facts can be shortly stated.  On 31 May 2005 the applicant had been drinking at lunchtime in a pub in Portsmouth, where he was a regular.  A young child aged nine, who was with her family, went to the ladies toilets.  The applicant followed her when she come out of the cubicle and ordered her back in.  He then shut the door and told her to take off her knickers.  She refused but he then took his own trousers and pants down and exposed himself to her.  She managed to escape from the cubicle and ran screaming into the main bar area. The applicant left but was caught up by a woman in the bar and made to go back and apologise.

The applicant had no previous convictions.  However, he had a troubled mental health background.  A Pre-sentence Report was obtained. That recorded the applicant as having frequent fantasies about children, involving causing them serious harm or even death.  He was frightened of those thoughts "because of the potential he may one day carry them out”.  He had a history of mental health problems and had been diagnosed as suffering from acute anxiety and personality disorder.  He had previously had treatment to address his deviant sexual fantasies.  The applicant had now started to put his sexual thoughts into practice.  (In fact on one occasion he had admitted to intending to rape the little girl at the pub.)  The report stated the view that he presented a significant risk to children.

Psychiatric reports dated 16 September 2005 and 26 October 2005 were before the Court.  The applicant’s recorded preoccupation with sexual feelings and fantasies about young girls was set out. There was no evidence of mental illness but he had a personality disorder with schizoid features.  His offending behaviour, however, was "related to his sexual preference for children and not to his personality disorder”.

In all such circumstances, the sentencing judge was clearly justified, under the law as it then stood, to make a finding of dangerousness and to impose an indeterminate sentence in respect of this specified sexual offence.  As he said, the contents of the reports give rise to the "greatest concerns".   The Single Judge was quite right in his opinion on this.  We refuse leave on this renewed ground.

There is much more force in the second point.  Mr Elliott attacked the width of the Sexual Offences Prevention Order. But his primary point was that such an order should not have been made at all in the light of the imposition of the indeterminate sentence; and there were no exceptional circumstances justifying such a course.  We agree.  Such an order should only be made, under the statutory provisions, where it is "necessary".  Here, it was not necessary.  Although the position on this particular point was clarified in Smith [2012] 1 CAR (S) 82 that decision involved no real change in the law on this point as previously understood: rather, it simply restated the effect of the actual statutory provisions.

We appreciate that this was a point which was available to be taken on appeal at the time.  However, in the particular circumstances of this particular case, we will grant the necessary extension of time for this application and grant leave to appeal on this ground.  Having done so, we allow the appeal.  The Sexual Offences Prevention Order should not have been made and it is wrong to allow it to continue to subsist. We quash that order accordingly.

This application has been referred to the Full Court by the Registrar.  He has done so in view of the fact that the proposed appeal includes a challenge, by one of the grounds, to a sentence imposed for a Bail Act offence.

The applicant, a man aged 41, had pleaded guilty on 23 February 2016 to an offence of burglary.  He was sentenced on 18 April 2016 by a Recorder sitting in Stafford Crown Court to a term of 12 months imprisonment. In the course of the proceedings he had also failed to attend a plea and case management hearing.  He subsequently admitted failing to surrender in breach of his bail; and  was sentenced to one month imprisonment for that Bail Act offence, consecutive to the sentence on the burglary count.  The burglary offence was in fact committed during the operational period of a conditional discharge for a criminal damage offence and he was re-sentenced to a concurrent term of one month imprisonment for that offence.

The facts, shortly stated, are these.  On 23 November 2015 in the mid-afternoon a resident entered a block of flats in which he lived in Burton.  As he approached the main door the applicant engaged him in conversation.  The resident then went into his own flat.  Some 10 minutes later he heard a bang and when he looked out he saw the applicant trying to take away a large table from the main foyer.  He went outside to stop him, confronted him and then escorted him back into the flat.  The table was recovered but a mirror had gone missing.

The failure to surrender related to the failure to attend the plea and case management hearing fixed on 22 February 2016 in the Stafford Crown Court. The applicant was brought to court the following day.

The principal offence might, on the face of it, seem to be relatively trifling. Unfortunately it has to be set in the context of a very lengthy antecedent history on the part of the applicant.  He has a serious drug problem.  He has numerous previous convictions, having appeared before the courts on 18 previous occasions in respect of 54 offences, starting in 1991 and continuing thereafter.  The convictions include public order offences; driving offences; drug offences; and offences of dishonesty. He also has previous convictions for non-dwelling burglary.  He has received a number of custodial sentences.  His antecedents also include a number of instances of failure to comply with community orders and suspended sentence orders.  There have also been eight previous Bail Act offences: for which he has received sentences of up to 2 months’ imprisonment.  A Pre-sentence Report dated 22 March 2016 recorded a lack of motivation to attend any appointments with the Probation Service.

The Recorder, in passing sentence, referred to the many opportunities the offender had been given by the courts to help himself.  This offending had itself been committed during the currency of a previous sentence.  The Recorder accepted that this was a "relatively low level" burglary, albeit there was "an element of confrontation".  The Recorder went on to say: "But also .... it is very significally elevated by your antecedent record.....  Overall, it seems to me that although this may have been categorised in the lowest level of burglary initially, given the aggravating factures that are mentioned, they take it into Category [2], which gives a starting point of a year and a range of up to two years".

The Recorder indicated that he would have taken a starting point of 18 months after trial: giving full credit for the plea, the sentence was one of 12 months' imprisonment. As to the Bail Act offence, the Recorder said:

“....this is one of many failures to attend. It has to be marked by a custodial sentence. It won't be longer than previous custodial sentences for Bail Act offences...”

Mr Hennessy submitted to us (as he had below) that this was a Category 3 burglary, the range of sentence being a low level community order to 26 weeks’ imprisonment. He said that the offence was more akin to theft than anything else, even if technically a burglary: the property had been stolen from the common parts of the block of flats and the (minor) confrontation had been outside.  He said that there was no justification for going beyond the top of the range for Category 3, let alone beyond the starting point for Category 2 offending.  As to the Bail Act offence, a sentence of one month imprisonment was, he submitted, disproportionate to the substantive offence and to the sentence appropriate to the substantive offence.

This was, on its face, a Category 3 case of burglary.  But as the Guideline (at page 9) makes clear, relevant recent convictions are likely to result in an upward adjustment and in some cases, having considered these factors, it may be appropriate to move outside the identified category range.  One can see from the Recorder's remarks that that is precisely the view he took of the matter.  He was entitled to do so.  While an adjusted starting point of 18 months imprisonment (6 months above the indicated starting point for Category 2) was on the severe side, it is to be borne in mind that there were aggravating factors over and above the very bad antecedent history of the applicant and there was little in the way of personal mitigation.

As to the Bail Act offence, given the frequency of such offending on the appellant’s antecedents a sentence of one month imprisonment was entirely appropriate and was not disproportionate to the substantive offence.  It was correct in principle to make the sentence consecutive; and there can be no valid complaint on totality grounds. 

In the result, although we grant leave to appeal with regard to the burglary count we dismiss the appeal.

In the present case, as we have said, the Registrar had referred the entire application to this court.  That makes practical sense where the overall sentence is, as here, relatively short and where an appeal as of right in respect of a sentence for a Bail Act offence is in any event being pursued.  In other cases, where these considerations do not arise, there is, as we have previously said, no bar to the matter being placed before the Single Judge in the usual way and for the Single Judge to decide on what grounds (if any) leave to appeal is to be granted, where leave is needed.

On 10^t December 2015 Jose Henry was sentenced following his conviction at trial for an offence of causing grievous bodily harm with intent, contrary to section 18 of the Offences against the Person Act 1861, to an extended sentence of 18 years, comprising a custodial term of 13 years’ imprisonment and an extension period of 5 years, pursuant to section 226A of the Criminal Justice Act 2003. He also received a concurrent sentence of 3 months’ imprisonment in relation to an offence of possessing a class B drug, in respect of which he had pleaded guilty. Further, HHJ Henshell made ancillary orders with which we are not concerned.

Given that Henry was born on 12^t November 1996 and was aged 19 at the date of conviction, the custodial term should have been expressed as “detention in a Young Offenders’ Institution” rather than one of imprisonment.

The Single Judge has referred to the Full Court Henry’s application for leave to appeal against sentence limited to the foregoing point. It is clear from her detailed reasons that her referral is limited to the issue of detention as opposed to imprisonment, and that she has not referred Henry’s wider grounds of appeal based on the finding of dangerousness and the length of the custodial term. The Single Judge made clear that the referral could be dealt with by the Full Court without the need for an oral hearing.

For the reasons we have already given, we entirely endorse the Single Judge’s approach. Were it not for the fact that this applicant had informed the court that he wished to be produced and to renew his refused grounds of appeal in person, this court would have listed the matter referred to be dealt with on this extremely narrow point, and the judge’s error rectified. The judge imposed an unlawful sentence the remedying of which is straightforward; and we so order. This appeal must be allowed and for the extended sentence of 18 years imposed under section 226A of the Criminal Justice Act 2003 (composed as previously set out) must be substituted an extended sentence with a custodial term of 13 years’ detention in a Young Offenders’ Institution and an extension period of 5 years.

Henry’s application to be brought to court for the hearing was refused by Davis LJ on 7 June 2016. We now proceed to consider his renewed application for leave to appeal on his remaining grounds on the basis of all the available material.

The background facts were that on 12 May 2015 the complainant, Hamza Lababidi, boarded a bus travelling into Manchester and sat upstairs, towards the rear. He was on his way to college. Henry had threatened to stab him on a number of occasions. Henry then boarded the same bus at a later stop and went to sit next to the complainant on the top deck. A fist fight broke out which was caught on CCTV. Within minutes, Henry pulled out a knife and the complainant fled from the bus, protecting himself with his bag. He used his mobile phone to film Henry following him and he baited this applicant by offering to fight him. Henry then struck the complainant, penetrating his chest with the knife and causing a wound 10cms deep which pierced the right atrium of the heart.

The complainant managed to cross the road but he collapsed against a low wall. Henry followed and tried to stab the complainant again, notwithstanding the latter’s pleas to be left alone. The complainant managed to block the further stabbing motions but was repeatedly kicked about the head and body, even after passers-by tried to intervene. Eventually Henry stopped, pulled up the hood of his top, and walked away.

Henry’s criminal record contained nothing of note, although there was a caution for disorderly behaviour or threatening behaviour likely to cause harassment in 2010.

In his interview with a probation officer for the purposes of a pre-sentence report, Henry maintained that he did not stab the complainant and did not know who was responsible. He disclosed that he had problems with anger management and previous aggressive incidents which had been managed within the family. The author’s assessment was that he posed a high likelihood of causing serious harm to the public by the commission of future specified offences.

In his sentencing remarks the judge held that the circumstances of the offence, including the applicant’s clear demonstration of anger and his heartless treatment of the complainant even after the latter had been stabbed, clearly warranted a finding of dangerousness. It was agreed between counsel that this was a category 1 case with a 12 year starting-point. The use of the knife and the circumstances of the offence, including Jose Henry’s sustained pursuit of the complainant, justified an uplift of one year to 13 years’ custody.

The grounds of appeal are that the sentence is manifestly excessive and wrong in principle in that the judge ought not to have concluded that Jose Henry was dangerous within the meaning of section 229 of the Criminal Justice Act 2003, and that the custodial term was too high.

We have carefully considered these grounds in the light of all the available evidence, but we cannot accept them as being arguable. Notwithstanding the youth of Henry and his dearth of relevant previous convictions, there were two pieces of evidence which strongly supported the conclusion that he amply fulfilled the provisions of section 229. First, the circumstances of this offence were horrific, and Henry has exhibited no insight or remorse. Secondly, the clearly expressed and reasoned views of the probation officer were capable of weighing heavily with the judge. Further, the custodial term of 13 years’ detention was amply warranted on the Sentencing Council’s Definitive Assault Guideline, pages 4 and 5, because this was clearly a Category 1 case (greater harm and higher culpability) with a starting point of 12 years’ custody and a category range of 9-16 years. It is also clear from the judge’s sentencing remarks that he paid full account of Henry’s youth and his favourable character references.

Jose Henry’s renewed application for leave on these grounds must be refused.

On 16 December 2015, at Reading Crown Court (Mr Recorder Jones QC sitting with a jury), Mohammed Hussain was convicted of an offence of dangerous driving contrary to section 2 of the Road Traffic Act 1988 and an offence of driving whilst disqualified contrary to section 103(1)(b) of the same Act. He received consecutive sentences each of 6 months’ imprisonment. He had pleaded guilty to the summary offence of driving without insurance, for which he received no separate penalty. Further, having committed an offence during the 18 month operational period of a suspended sentence of 10 months’ imprisonment imposed on 21 February 2014 (for an offence of dangerous driving), when he was also disqualified from driving for 2 years and until an extended test was passed, the suspended sentence was activated in full to run consecutively. Thus, the total sentence of imprisonment was one of 22 months. Finally, Hussain was disqualified from driving on the two counts for which he had been found guilty, such orders to run concurrently. The disqualification period was for 4 years and (on count 1 only) until an extended sentence was passed.

The facts were that on 21 January 2015 at 2:45pm a police officer in Slough Road, Datchet, noticed Hussain driving a black Vauxhall Insignia. The officer was in a marked police car. He knew that Hussain was a disqualified driver and attempted to stop the vehicle. The latter failed to stop. Hussain then overtook vehicles on single carriageway roads, and drove over the grassy area of a roundabout at the junction of the A4 to avoid stationary vehicles at a red traffic signal. He drove onto the Uxbridge Road and barged through traffic. He drove over the pavement to avoid stationary traffic at another red signal. He drove out of sight of the police vehicle and then decamped and hid in a garden. An eyewitness saw that this Applicant was the only person to exit the vehicle. The police officer then located him and he was arrested. Notwithstanding that Hussain’s phone was in the vehicle and his fingerprints were on the driver’s door handle, he gave a prepared statement saying that he was not the driver.

Hussain, who was born in November 1984, had 15 previous convictions for 29 offences committed between 2005 and 2015. He had three convictions for driving with excess alcohol in 2005, 2008 and 2010, five further convictions for driving whilst disqualified and seven further convictions for driving whilst uninsured. He had received short custodial sentences for driving offences in 2010, 2011 and 2012. As previously stated, on 21 February 2014 Hussain was sentenced to 10 months’ imprisonment suspended for 18 months (together with other orders) for driving dangerously, whilst disqualified and whilst uninsured the previous year.

In his sentencing remarks the Recorder made clear that, in the light of the circumstances of this offence and Hussain’s prolific record, immediate and substantial custodial sentences were appropriate.

The Single Judge referred this application for leave to appeal against sentence to the Full Court on the ground that the effect of section 36(7) of the Road Traffic Act 1988 is that, given that Hussain had not passed his extended driving test after 21 February 2014, it was wrong in law for the judge to impose another such requirement. The Single Judge considered that the remainder of the grounds were unarguable.

After the decision of the Single Judge, Hussain submitted written representations to the Registrar, making the point that the time spent on qualifying curfew has not been taken into account in sentencing. He now acts in person, and the procedure laid down by this court in Thorsby [2015] EWCA Crim 1 has not been complied with. However, the prosecution has proven to be of great assistance in this respect, and it is agreed that Hussain was on monitored curfew between 30 September 2013 and 3 January 2014 (95 days) and 3 January 2014 to 21 February 2014 (28 days, at 4 days a week). This yields a total of 123 days, less one day for breach of the curfew provision. The total of available days for the purposes of section 240A of the Criminal Justice Act 2003 is 122, and halving that produces a total of 61 days which should count towards sentence.

Hussain requires the leave of this court to advance his further ground relating to section 240A. Given that the days to be credited have been accepted by the prosecution, we consider that it is appropriate in the circumstances of this case to accede to this application.

Hussain also indicated that he wishes to renew the grounds of appeal which were refused by the single judge, and we permitted him to appear in person by video-link to do so. He advanced his case before us both effectively and courteously.

The grounds of appeal are that a maximum sentence of six months’ imprisonment was passed for driving whilst disqualified when the fact that he was a disqualified driver was taken into account when fixing the appropriate term for the dangerous driving, and that it was unjust to activate in full the suspended sentence of 10 months having regard to the mitigation and to Hussain’s completion of the drug rehabilitation requirement as well as compliance with the supervision requirement attached to the suspended sentence. It was this second ground that Hussain pressed harder in oral argument.

We have carefully considered these grounds in the light of the submissions we heard and all the material available to us. We do not consider that there is any merit in the ground that it was manifestly excessive to impose the maximum sentence for driving whilst disqualified. Given the circumstances of this offence, and Hussain’s deplorable record, this sentence was well within the ambit of the judge’s discretion. However, we have concluded that the judge erred in principle in activating the whole of the suspended evidence in circumstances where Hussain had fully and successfully complied with the requirements of the Suspended Sentence Order that had been made conditional to it. In the circumstances of this case, we consider that 5 months of the suspended sentence should have been activated. Accordingly, we grant leave to appeal on this ground.

We allow the appeal to the extent prefigured. We quash the orders disqualifying Hussain from driving for a period of 4 years (such orders to run concurrent) and, on count 1, until an extended test is passed, and for these substitute orders on counts 1 and 2 disqualifying Hussain from driving for a period of 4 years, such orders to run concurrent with each other. Further, in substitution for the order that the suspended sentence of 10 months’ imprisonment imposed on 21 February 2014 should be activated in full, we make an order that the suspended sentence should be activated to the extent of 5 months. The other orders made on 21 February 2014 (viz. disqualification from driving for 2 years and until an extended test is passed) shall remain in place. Finally, we make an order under section 240A of the Criminal Justice Act 2003 for 61 days on qualifying curfew to count towards sentence.

The effect of our order is that the total period of imprisonment in this case is reduced from 22 months to 17 months.

Muhammed Hussain’s application and appeal are allowed to this extent.