R v Christopher Henry Jowitt

His Majesty's Attorney General applies for leave to refer a sentence which he regards as unduly lenient. The sentence was passed by Mr Recorder Andrew Hearn after the offender had pleaded guilty to an offence of possessing a prohibited firearm (count 2), for which he was sentenced to 3 years and 5 months' imprisonment, and an offence of possessing ammunition without a certificate (count 4), for which he was sentenced to 1 month imprisonment concurrent.

The Attorney General submits that the sentence on count 2 was unduly lenient because, first, the Recorder sentenced the offender on the basis that the offence fell within category 2 for harm and at the bottom of medium culpability, when he should have treated it as falling within category 1 for harm (ground 1); and, second, the Recorder was not justified in passing a sentence on count 2 below the statutory minimum of 5 years as the case and the delay in bringing it to the sentencing hearing was not exceptional (ground 2). We give leave.

On 28 August 2023, police officers observed the offender and Mr Luis Vieira in a Hyundai hire car. The vehicle was seen to enter into a road in London NW10 where both males were seen to exit the parked vehicle before running off as officers approached them. Underneath the vehicle on the ground the police found a pistol loaded with a magazine and ammunition. It was a prohibited firearm and some of the ammunition was live and required a certificate. A further firearm of the same type and in the same state of readiness was found in a bag in the front passenger seat of the car. The offender was stopped and arrested a short distance away from the vehicle. Mr Vieira was arrested later that afternoon in Peterborough.

Both offenders accepted that they had been on their way to a nightclub near where they were parked when the police approached them. Mr Vieira accepted that he had been in the process of taking both firearms to the club, albeit he said he was under instruction from others.  The offender stated that he had been unaware of the firearms until after they had parked up. He had only seen one of the firearms just before the police had approached and had put it under the car as he was on licence and did not want to get into trouble. Both firearms were accepted to be prohibited firearms by virtue of their short barrels.

In a little more detail, when the police approached the Hyundai its lights were still on and the engine was running. Both Mr Vieira and the offender were still in the vicinity of the car. Police approached the Hyundai approximately 2 minutes after it had first been seen parked in the Crescent. Mr Vieira was standing on the pavement, and appeared to be on a phone. Meanwhile the offender was stooping over next to the car. At this point he was wearing a balaclava. Both men ran upon seeing the police. The offender was stopped and arrested nearby. He had a single glove found down the leg of his trousers. The balaclava was not found on his person when he was stopped but was subsequently found by the police with the assistance of a sniffer dog. Mr Vieira evaded the police by running through a nearby underpass but was later identified by CCTV.

The police located the two working pistols with the Hyundai. Both, as we have said, were found loaded and made ready. One (exhibit SUR/4) was found inside a Louis Vuitton bag on the front passenger seat of the Hyundai and the other (SUR/1) was found underneath the car. The Louis Vuitton bag belonged to Mr Vieira. It contained personal items belonging to him including a pair of gloves. He later accepted that both pistols had been in his possession. The weapon found under the Hyundai had been put there by the offender just as the police arrived and before the two had run off.

The offender was interviewed under police caution shortly after his arrest. He provided "no comment" answers, save to state that he had run from the police because he said he had a small quantity of cannabis on his person for his personal use.

At a PTPH on 30 January 2024, the offender pleaded guilty to possession of the firearm SUR/1 but denied being part of a conspiracy to possess the firearms with intent to endanger life. He also denied possession of firearm SUR/4 and the ammunition, including that which was within SUR/1.

In a Defence Statement, dated 6 February 2024, the offender asserted that he had been looking to obtain a lift from the Notting Hill Carnival to a party in Neasden. He had sought a lift in one car but that had turned out to be full. He then saw Mr Vieira and had been able to get a lift in the Hyundai. He sat in the back of the car and used his phone, unaware of anything happening around him during the journey. The Hyundai came to a stop in Birse Crescent which was near to the location of the party being held at "Venue 295" in Neasden. He saw Mr Vieira step out of the car and appeared to talk to someone on the phone. The offender stated that he was about to get out of the car when he saw a firearm in a footwell in the back of the car. He had not noticed it previously and did not know whether it was loaded or not. He panicked as he was on licence and did not want to be associated with such an item, so he picked it up and threw it under the car. He ran when he saw a man approach who he now realised was a plain-clothed police officer. He heard the man shout that he was an armed police officer, but did not know if that was true. As he had cannabis on him, he decided to keep running away. He did not make the weapon ready and did not know that it was loaded with ammunition.

On 17 April 2024 the offender stood trial with his co-defendants, Mr Vieira and three other men, called Mr Trail, Mr Sealy and Mr Simao. This trial was conducted by HHJ Alistair Wright and a jury on an indictment alleging a conspiracy to possess firearms with intent to endanger life together with a number of substantive counts. In a document dated 19 April 2024, the offender provided a basis of plea that largely replicated the content of his Defence Statement. To this extent only, he accepted possession of SUR/1 and the ammunition within it. On 22 April 2024, the offender was re-arraigned on count 4, which related to the ammunition in the SUR/1 and pleaded guilty. On 29 April 2024, HHJ Wright made terminatory rulings upon the close of the prosecution case in respect of Mr Sealy, Mr Trail and Mr Simao. The prosecution sought to appeal some of these rulings. No expedited appeal was requested by the prosecution and the jury were discharged. The appeal to the challenged rulings succeeded.

On 3 February 2025, the offender and his four co-defendants were tried a second time by HHJ Ezzat and a jury on an indictment that was substantially the same as that tried previously. On this occasion Mr Sealy, Mr Trail and Mr Simao were acquitted entirely and the offender was acquitted on possession of SUR/4. The jury were unable to reach verdicts in respect of other counts which related to the offender and Mr Vieira.

On 17 November 2025, the offender and Mr Vieira were tried on a third occasion by Mr Recorder Hearn and a jury. By this point, the indictment had been amended and now alleged only two substantive counts for possession of firearms with intent to endanger life. Mr Vieira was charged with possession with intent of both SUR/1 and SUR/4, whilst the offender was charged with possession with intent of only SUR/1. Both the offender and Mr Vieira gave evidence and gave accounts broadly consistent with their Defence Statements.

In his evidence at the third trial, Mr Vieira gave evidence that he been intimidated by two men, who put the firearms in his car as he was preparing to leave the Notting Hill Carnival and told him to take them to a club in Neasden, near which he was later arrested. The offender had got into his car unexpectedly and hitched a lift with him to Neasden but had nothing to do with the firearms. Mr Vieira said that he told the offender as he got into the car: "I've got something on me", but that was all. In his evidence the offender said that he had not heard anything being said by Mr Vieira about having "something" on him. He said he was drunk and high when he got into the car. He had been on his way to a Notting Hill Carnival afterparty which he had promoted. Promotional flyers and template flyers for an afterparty were located on his phone. He claimed to have been shocked and surprised when he saw a firearm in the rear footwell of Mr Vieira's Hyundai after it had stopped at Birse Crescent. He claimed that he had picked up SUR/1 and threw it under the car. The glove found on his person was a full-fingered glove that he used when training in the gym. His account was that he had been at the gym that morning and this must have become caught up in his trousers at the time. Video evidence was available to show that the offender used full-fingered gloves when in the gym.

The issues for the jury included whether the firearms had been purposefully or accidentally cocked and whether the first pull of the trigger of either firearm would have resulted in an immediate and successful discharge of a bullet. The prosecution experts accepted that the firearms could have been cocked accidentally.

The jury acquitted both the offender and Mr Vieira on the counts alleging possession with intent to endanger life and so both fell to be sentenced after the third trial for the counts that they had pleaded to by that stage. The offender had been remanded in custody throughout the proceedings and was in any event subject to recall.

Three other features of the procedural history are important. First, as we have said, on 29 April 2024, HHJ Alistair Wright gave terminatory rulings bringing the first trial to an end. The following day the Crown sought to appeal some of those rulings. On 30 April 2024, Judge Wright addressed the issue about the respondent being on recall and the fact that time in custody that he was serving would not count towards his sentence. The judge emphasised that it was not the respondent's fault that there was a delay and that there were two ways he could deal with it. Firstly, the respondent could be sentenced to the mandatory minimum sentence of 5 years' custody for possession of a firearm, to which he had pleaded guilty. That being in respect of SUR/1. That way he would start serving his sentence. If he was then found guilty of the conspiracy and/or possession of the second firearm, those sentences could run concurrently. Secondly, he decided that the trial would be reserved to himself, and if the respondent was acquitted of the conspiracy then the delay could amount to an exceptional circumstance and the learned judge could reduce the mandatory minimum sentence by the amount of time that the respondent had already served. The Crown strongly opposed the first suggestion, and submitted that it would be an error to sentence at that point, which the learned judge agreed. Various defence counsel, including HHJ Wright) concluded that there was a myriad of unknown variables and it would not therefore be appropriate to expedite the appeal. HHJ Wright reserved the new trial to himself, and put a widely shared comment on the CCDCS as follows:

Second, on 21 July 2017, the respondent had been sentenced to a total of 12 years' imprisonment. He had been released from that sentence on 1 March 2023. The respondent was arrested for the present offences in the early hours of 29 August 2023, and was recalled on his 21 July 2017 sentence on the same date. The respondent's recall was as a result of being arrested for this offence and not for any breach of his conditions. His release date for that sentence is 19 February 2029. The respondent first appeared in the Magistrates' Court for this matter on 30 August 2023. He remained remanded in custody on this matter until his sentence date on 19 December 2025. As at 19 December 2025, the respondent had been remanded in custody for 842 days (or 2 years 3 months and 19 days), of which 596 days (or 1 year 7 months and 17 days) are from the date of the first jury being discharged on 2 May 2024. The delay between the date that the first jury was discharged and 19 December 2025 was not as a result of any fault on the part of the respondent. It is right to say that it is not suggested that it was a result of fault or any deficient behaviour on the part of the prosecution.

Third, the offender had pleaded guilty to count 2 on a basis that broadly reflected the contents of his Defence Statement. That basis was not challenged by the prosecution by way of a Newton hearing as it could have been at any stage up to and including the sentence hearing. Instead the prosecution continued through the three trials to attempt to secure convictions for conspiracy to possess firearms with intent to endanger life which resulted in the offender's acquittal.

The offender was born on 28 March 1996 and is therefore now 30. He incurred numerous convictions as a juvenile. More relevantly, since 2017 he has been convicted of serious offences. In 2017, he was convicted of dangerous driving, for which he was sentenced to 12 months' immediate imprisonment followed by further offences of wounding with intent, robbery, possession of an offensive weapon and being concerned in the supply of Class A drugs, for which he was sentenced to a total of 11 years' imprisonment. Police National Computer Records indicate that the dangerous driving was sentenced on the same day as the robbery, at a different court, but was ordered to run consecutively, which would in practice make for a total of 12 years' imprisonment. The robbery and wounding from 2017 related to an incident in which the offender stabbed another man with a knife several times while forcibly removing his watch. We have already indicated that the offender was released on licence on 1 March 2023, and that the expiry of his original sentence is recorded as 18 February 2029.

It is clear that the Recorder took considerable trouble to provide sentencing remarks that are clear and cogently expressed. The issue for us is whether he went wrong and in doing so arrived at a sentence that was unduly lenient. Despite prosecution submissions to the contrary, the Recorder decided that he could not be sure to the criminal standard of the suggested inferences that the offender and Mr Vieira intended the firearms and associated ammunition to be used for a criminal purpose. He was however satisfied so that he was sure that Mr Vieira was reckless as to whether the two firearms which he possessed would be used for a criminal purpose. He held that the offender was entitled to a 25 per cent reduction for his pleas. The Recorder then provided a summary of the applicable sentencing principles when sentencing for possession of prohibited firearms and recorded that it was common ground that section 311 of the Sentencing Act applied, so that the court is obliged to impose an appropriates custodial sentence for a term of at least the required minimum of 5 years unless it is of the opinion that there are exceptional circumstances which relate to the offence or to the offender and which would justify not doing so. No substantial criticism is made of his summary. The Recorder then found that, as was agreed by the parties, each firearm was a type 1 weapon, being one that was designed or adapted to be capable of killing two or more people at the same time, in or in rapid succession.

Dealing first with culpability by reference to the Firearms Guidelines, the Recorder said in relation to the offender:

The Recorder then identified that a category B2 case had a starting point of 6 years with a category range of between 5 and 7 years' imprisonment. He identified as aggravating features for the offender (a) his previous convictions, in particular for the violent offence for which he was recalled to prison and (b) the fact that the offending occurred while he was on licence. He then referred to the offender's personal mitigation.

The Recorder then turned to the question of exceptional circumstances:

After referring to R v Kerrigan [2014] EWCA 348, for the existence of a residual discretion to do justice on the particular facts, including in the case of excessive delay, he continued:

The Attorney General submits that whilst it may have been open to the learned Recorder to have regard to the jury's verdicts and to find that the offender bore less culpability than Mr Vieira, both offenders had possessed the firearms in circumstances that posed a high risk of death, serious harm and/or serious disorder. As required by the offence guideline it is submitted that it was relevant to consider that:

The offender responds by referring to the features of the sentencing remarks that we have already set out extensively above, and submits that the Recorder was entitled to make the findings of fact that he did which amounted to an almost momentary possession of the firearm as he took it and threw it under the car. On that basis it is submitted that the Recorder was entitled to find that, so far as the offender's possession was concerned, the offender's conduct fell within category 2 for harm.

The point is a very short one and is to be determined by reference to the offender's basis of plea, his subsequent acquittal of the more serious offence of possession of a firearm with intent to endanger life and the fact that the Recorder was not satisfied to the criminal standard that the offender intended the firearm and ammunition of which he had possession to be used for a criminal purpose or that he was reckless as to whether they would so be used.

In those circumstances and having regard to the considerable care exercised by the Recorder in explaining his reasoning, as we have set out above, we are not satisfied that he miscategorised the offender's possession offence. In our judgment he was entitled to reach the conclusion that he did for the reasons he gave, which we have set out above.

The Attorney General submits that there is nothing exceptional about there being delay caused by a retrial after a person has pleaded guilty even though their time in custody may not count because of being on recall. The offender responds that, on the facts of this case and for the reasons that he gave, the Recorder was entitled to find that there were exceptional circumstances.

Again, we consider this to be a very short point. We accept the Attorney General's basic submission as we have just recorded it. But for one thing we would be inclined to agree that there was insufficient material to justify a conclusion that a sentence of 5 years would have been arbitrary and disproportionate. However, we are influenced by the approach adopted by HHJ Alistair Wright as recorded in the sidebar note that we have quoted above. It is apparent that HHJ Wright had well in mind the impact that delay could have on the offender, and that consideration of that factor weighed in the balanced exercise that he carried out in deciding whether or not the first jury should be discharged and whether a retrial should or should not be expedited. He was alive to the fact that he could sentence the offender immediately to the mandatory minimum term, on the basis that if he was later convicted of the alleged conspiracy or having possession of both firearms, he could then be sentenced appropriately to reflect those verdicts. Alternatively, he could decline to sentence the offender then and there, reserve the case to himself and treat the delay as an exceptional circumstance. His solution overall was to adopt the latter course. Since it involved deliberately not sentencing the offender when he could do so, it was, in our judgment, a reasonable approach for HHJ Wright to take in a case that was otherwise unexceptional.

HHJ Wright's planned approach was thwarted through no fault of the defence or the prosecution because, despite reserving the case to himself, he was not the trial judge for the subsequent trials nor was he the sentencing judge. We accept that strictly speaking what HHJ Wright said and recorded was not sufficient to give rise to a legitimate expectation properly so called. However, in the light of the reasoning that led HHJ Wright to decline to sentence the offender in or about April 2024, it was open to the Recorder, in our judgment, to conclude that the circumstances were exceptional and justified him in moderating the impact of the 5-year statutory minimum as he did. We emphasise that this is an entirely fact sensitive decision that the Recorder was entitled to reach the conclusion he did. It does not cast doubt on the general and well-established principles governing the application or disapplication of the statutory 5-year minimum.

For these reasons the Reference is dismissed.