Crown Prosecution Services, R (on the application of) v Guildford Crown Court & Anor

This is an application for judicial review of a decision of His Honour Judge Bull QC made in the Crown Court at Guildford on 15 May 2006 to sentence Andrew Edwards (the interested party) to an extended sentence and an extended licence period under section 227 of the Criminal Justice Act 2003 ("the Act") for an offence of rape.

Mr Bendall on behalf of the claimant Crown Prosecution Service submits that section 227 only applies to offences which do not fall within the category of "serious offences" under the Act. Rape is one of the category of serious offences. The consequence of that is that the judge, having formed the conclusion that he did as to dangerousness, was required to sentence the interested party either to life imprisonment or to an indeterminate period of imprisonment for public protection. He invites us to quash the sentence and to remit the case to the Crown Court for sentencing in accordance with the Act. This, if possible, would result in the interested party receiving a more severe sentence than the one imposed by the judge.

Section 29(3) of the Supreme Court Act 1981 provides that this court has no jurisdiction to make a quashing order in relation to the jurisdiction of the Crown Court in ‘matters relating to trial on indictment’. Mr Bendall seeks to persuade us that this provision does not exclude our jurisdiction on the facts of this case.

The facts can be shortly stated. The interested party was charged with one count of rape. He was accused of raping a 15 year old girl on the evening of 12 August 2005. He was 32 years of age at the time of the offence. He did not know his victim. He came across her when she was under the influence of alcohol and in distress near Earlswood Lakes in Surrey, having had a quarrel with her friends. He took her away to a hill and raped her. After the assault she ran back to her friends and the police were called. Mr Edwards was identified as the assailant by DNA evidence.

He had been stopped three times earlier by police in Redhill when he was out late with his bicycle. On each occasion he was found with a pornographic magazine and his trousers unzipped or his clothing damp. Argument took place before the judge as to whether this history should be introduced. The judge refused the Crown's application to adduce it as evidence of bad character.

After the verdict there was a further debate before the judge as to the use of this material for the purpose of pre-sentence reports and the admission of the evidence of the relevant police officers at the sentencing hearing. In the course of this debate the judge received confirmation from counsel in an erroneous understanding that the facts of the case were not such as to require him to consider an indeterminate sentence for public protection.

Section 224 of the Act provides the definition of a ‘specified offence’ and a ‘serious offence’. Rape falls within the definition of each. Section 225 provides that, where a person over the age of 18 is convicted of a serious offence and the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences, the court must impose either a life sentence or a sentence of imprisonment for public protection. Section 227 makes provision for imposing an extended sentence of imprisonment in circumstances where the offender has been convicted of a specified offence other than a serious offence and the court considers that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences.

The interested party was sentenced on 15 May 2006. The pre-sentence report had unhelpfully suggested that the judge consider an extended licence period and defence counsel took up this suggestion in mitigation. The judge stated that the three earlier incidents reinforced his view that there was a significant risk that the interested party might commit further specified offences against young women. The judge erroneously concluded that the law required him to impose an extended sentence and that is what he did. He stated that the custodial term would be the shortest the law permitted, which reflected the seriousness of the offence, namely seven years. The interested party would serve at least one-half of this sentence and then be released only if the Parole Board were satisfied that he no longer required custody for the protection of the public. At the end of that period, he would be on licence for an extension period of four years.

Mr Tresman for the interested party accepts that, in imposing an extended sentence, the judge fell into error. His client should have been sentenced pursuant to section 225 to an sentence of imprisonment for public protection.

The error made by the judge was identified by counsel shortly after the sentence had been imposed. On the same day counsel sent a note to the judge inviting him to correct the error under the slip rule. Unhappily, that was the very day upon which the judge was to retire and he declined to entertain counsel's application.

In these circumstances there was available an obvious remedy, albeit one which would have been of attraction only to the prosecution. This was to draw the facts of the case to the attention of the Attorney General and to invite him to refer the sentence to the Court of Appeal under section 36 of the Criminal Justice Act 1988. That section expressly deals with the position which had arisen in this case. It gives the Attorney General the power to refer to the Court of Appeal, inter alia, a sentence where it appears to him that the judge has failed to impose a sentence required by any of sections 225-228 of the Criminal Justice Act 2003. When, however, the possibility of this course was considered, the time in which to make such a reference had expired.

Thus it is that Mr Bendall has sought to persuade us that we have jurisdiction to quash this sentence. He submits that it would be unfortunate if the errors that have occurred in this case cannot be rectified. That may be so, but it is not of itself any basis for disregarding the relevant statutory provisions, of which the relevant one is section 29(3) of the Supreme Court Act 1981.

Mr Bendall submitted that because the sentence imposed was one which the judge had no jurisdiction to impose, this case does not fall within section 29(3) of the 1981 Act. In support of that submission he has relied on two authorities: R v Crown Court at Maidstone, ex parte London Borough of Harrow [2000] 1 Cr App R 117 and Regina (Kenneally) v Crown Court at Snaresbrook [2002] QB 1169. In the first of these cases, the judge purported to make a supervision order under section 5 of the Criminal Procedure (Insanity) Act 1964 in circumstances where there had not been a verdict finding the defendant not guilty by reason of insanity. The local authority, being responsible for the supervision of the defendant, applied for judicial review. The application was granted on the basis that, although a supervision order properly made would be excluded from the High Court's supervisory jurisdiction by section 29(3) of the 1981 Act, where it was challenged on the ground that it had been made without jurisdiction the High Court could review it. This was a case in which the supervision order could not be characterised as a sentence, and therefore no appeal could lie from it. The reasoning In reviewing the relevant authorities Mitchell J, who gave the leading judgment (with which Kennedy LJ agreed), referred to two decisions of the House of Lords. The first was Smalley v Warwick Crown Court (1985) 80 Cr App R 205. At page 216 Lord Bridge (with whose speech each of their Lordships concurred) said this:

The reasoning of Mitchell J is wide enough to cover a sentence passed without jurisdiction but to give it a meaning such as this would be in stark conflict with the observations in these two passages. I do not consider that the decision in R v Maidstone Crown Court can properly be applied to a sentence given at the end of a trial on indictment in respect of which an appeal will lie to the Criminal Division of the Court of Appeal.

The facts of the second authority upon which Mr Bendall relies on had similar features to the first. In Kenneally the judge had made a Hospital Order with a restriction order under section 51 of the Mental Health Act 1953 on the basis that it was inappropriate to bring the defendant before the court as he was likely to display disturbed behaviour. The order was challenged by the defendant who contended that it was not a matter relating to trial on indictment. The court found that to pass sentence in the form of a Hospital Order without first convicting the defendant was a drastic step which should only be taken in exceptional circumstances, which these were not. In considering whether the High Court had jurisdiction to quash a Crown Court Order made under section 51, the court concluded that the defendant had no right of appeal against the order to the Court of Appeal, Criminal Division. Pill LJ, giving the leading judgment, remarked at paragraph 40: “While I would expect Mitchell J’s concept of a “jurisdictionally flawed act, in a section 29(3) context, to be the subject of further consideration, I would be prepared to hold the procedure followed was so defective as to render the order quashable for want of jurisdiction”

Mr Bendall seeks to found on these two cases a general proposition that this court has power in judicial review proceedings to quash any sentence that exceeds the jurisdiction of the sentencing court. In my judgment that is not a legitimate general principle to derive from the two authorities upon which he relies. Those were very special cases where there had not been a trial on indictment. Where there has been a trial on indictment and the defendant has been convicted, and the judge thereafter makes an error in the extent of his jurisdiction when passing sentence, that, in my judgment, as Lord Bridge had suggested in the two cases to which I have referred, plainly falls within the statutory definition under section 29(3) of the Supreme Court Act 1981 of being a matter relating to trial on indictment. For these reasons I am satisfied that this court has no jurisdiction to entertain the application for judicial review and it will be dismissed on that basis.

It would, of course, be possible for this court to reconstitute itself as a Court of Appeal, Criminal Division, in order to enable the interested party to challenge the sentence if he wished to do so. Understandably, Mr Tresman has no wish to take any such step on behalf of his client. The position that has arisen in this case is not without precedent. In R v Reynolds and Others [2007] EWCA Crim 538, a number of appeals were entertained by the court in circumstances where errors such as this had been made by the sentencing judge. Having considered at length the appropriate course to take in such circumstances, this court concluded that it was not open to it to substitute the sentence that the judge should have passed of an indeterminate sentence of imprisonment for public protection as this would be outside the statutory powers of the Court of Appeal (it being a heavier sentence than the one that had been originally imposed). The court concluded that in these circumstances the appropriate course was not to disturb the sentence, which was not a nullity, and could therefore stand.

Plainly it would be an absurdity if an appellant were in a position of persuading the court to quash a sentence on the ground that he should have received a more serious sentence than that imposed by the judge.

MR JUSTICE GRIFFITH WILLIAMS: I agree.