Barnard v Director of Public Prosecutions

MR JUSTICE BEATSON: This is an appeal by way of case stated pursuant to section 28 of the Senior Courts Act 1981 from the decision on 25 October 2010 of HHJ Oliver and two magistrates sitting at the Crown Court at Isleworth. That court dismissed the appeal of Alan Victor Barnard against his conviction and sentence by District Judge Wright at the Uxbridge Magistrates' Court on 5 August 2010.

The conviction was for one count of common assault on the appellant's wife. The Crown Court found him guilty and imposed a sentence of two months' immediate custody. The district judge had sentenced him to a community order, 18 months' supervision, £100 compensation, costs, and made a restraining order excluding him from the former matrimonial home. Paragraph 2.2 of the case stated records that:

Prior to the case being called on in the Crown Court, HHJ Oliver asked for confirmation that the appellant was aware that the sentence could be more severe than that imposed by the magistrates' court (see paragraph 2.3 of the case stated.) Counsel informed the court that the appeal against sentence was withdrawn and confirmed that the appellant had been advised that if his appeal against conviction was dismissed, he would be re-sentenced and that the court had power to increase his sentence. At the start of the hearing, the appellant confirmed that he had been so advised.

Paragraph 2.6(b) of the case stated states that, having heard the evidence, the court found that:

The appellant challenges the decision of the Crown Court that he was guilty of assault and its sentence of two months' immediate custody on four grounds. The first is that the court considered a pre-sentence report prepared for the hearing in the magistrates' court prior to the rehearing of the question whether the appellant was guilty of the offence.

Mr Bishop, on behalf of the appellant, submitted that the pre-sentence report was not admissible evidence for a trial because it contained inadmissible opinion and hearsay, and some of its contents amounted to evidence as to bad character, which, I add, is inadmissible unless one of the gateways in section 116 of the Criminal Justice Act 2003 is met.

The second ground is (see case stated paragraph 2.4) that at the end of the complainant's evidence, HHJ Oliver asked her whether there had been any previous incidents of threats or violence in the relationship, and required an answer to this question, despite an objection by Mr Bishop.

Mr Bishop submitted that the tribunal acted in an investigatory manner in seeking to introduce inadmissible evidence as to bad character, although the prosecutor and the defence agreed that there was no issue of bad character in this case.

Thirdly, it is submitted that the tribunal erred in law at the stage of sentencing in finding that the complainant was vulnerable solely because of the way in which she gave evidence.

Fourthly, it is contended that, in the absence of a lawful finding that the victim was "particularly vulnerable" or "vulnerable", the sentence of immediate custody of two months for a single slap causing no injury, inflicted by a 57-year-old man of previous good character, is harsh and oppressive. Mr Bishop also relied on the first three factors in support of the submission that a fair-minded observer having considered the facts of the proceedings in the Crown Court in this case would conclude that there was a real possibility that the tribunal was biased.

The questions asked in the case stated are:

I deal first with the two questions concerning the conduct of the hearing. Those go to the conviction itself.

I have referred to paragraph 2.2 of the case stated, which states that "Having read the report" the tribunal was concerned to ensure that the appellant was aware that sentencing was at large. Mr Lodato on behalf of the prosecution, who made his submissions clearly, concisely and realistically, conceded that in general pre-sentence reports should not be read prior to receiving evidence. However, he submitted that doing so in this case, given the contents of the report, did not undermine the fairness of the proceedings.

His submission contained three limbs. First, there were no antecedents in the pre-sentence report, which went no further than saying the appellant was convicted. Secondly, the contents of the pre-sentence report did not prejudice the appellant because they went no further in effect than recounting the findings that led to guilt. Thirdly, the case stated shows that the tribunal did not rely on the pre-sentence report at the stage of conviction.

These submissions contain an element of principle and an element which depends on the content of the pre-sentence report. In his written submissions, Mr Lodato argued that, since it is only in exceptional circumstances that an appellant should be allowed to abandon his appeal once an appeal against the decision of a magistrates' court has started in the Crown Court (see R v Manchester Crown Court, ex parte Welby [1981] 73 Cr App R 248), it is important for the sentencing tribunal to give an appellant every opportunity at the outset to abandon an appeal that may result in a heavier sentence at its conclusion.

He accepted that the consideration of the pre-sentence report may have allowed HHJ Oliver and the lay justices to reach a preliminary view of the appropriate sentence in the appeal that was due to commence, but his skeleton argument contains the submission that it was not unfair to give the appellant a last opportunity to abandon the appeal and avoid the jeopardy of an increased sentence, and indeed it would have been unfair not to do so.

In his oral submissions, Mr Lodato realistically relied more on the impact of this particular pre-sentence report. The argument that the court should have regard to it in order to give a person a last opportunity to abandon the appeal is, in a sense, an argument of principle which he did not press. He was right not to do so. Since the judge and the magistrates were preparing for an appeal against conviction and sentence, they may perhaps have considered it efficient to read the pre-sentence report together with the other papers before commencing the appeal. But an appeal to the Crown Court is by way of rehearing, and the prosecution must prove its case again, although, as Mr Lodato observed, the tribunal will know that the appellant has been convicted in the magistrates' court.

We understand that the judges and justices hearing appeals in the Crown Courts in cases of this kind where conviction is in issue do not see pre-sentence reports and other material normally considered when sentencing before they have heard the evidence and determined guilt. This is not surprising; it accords with principle. Pre-sentence reports are prepared on the assumption that the defendant is guilty. They may contain, as this one did, matters of opinion and hearsay evidence, which are either inadmissible in evidence at the trial or only admissible if certain conditions are satisfied. They often contain, although this one did not, references to and an assessment of the defendant's antecedents. Those are only admissible if the bad character provisions of the Criminal Justice Act 2003 are satisfied.

In an appeal to the Crown Court, the judge and the two lay justices are the tribunal of fact. It is important for the tribunal of fact not to have before it such inadmissible evidence. While a circuit judge or recorder sitting with a jury may have seen a defendant's antecedents and other inadmissible evidence in the case papers, he or she is not the tribunal of fact. Where such a judge is sitting with lay magistrates, if a pre-sentence report is included in the case papers, it should not be read until after the trial stage is concluded and has resulted in a verdict of guilty and the court is considering sentence.

As to the submission that fairness requires an appellant to be told clearly that the sentence may be increased, as Mr Lodato accepted, it is not necessary for the pre-sentence report to be read in order for this to be done. No doubt it is good practice to remind all appellants of the risk of an increase in sentence where a conviction is challenged, but it can be done without sight of the pre-sentence report.

It appears from the part of paragraph 2.2 of the case stated that I have set out at [2] summarised that it was only in the light of the contents of the report that the tribunal was concerned to ensure that the appellant was aware that sentencing was at large. As the facts of this case and the grounds of appeal show, if it is known that the question has been raised only because of the contents of the report, this may in itself give rise to a perception that the tribunal has prejudged the issues.

I turn to the submission that no prejudice to the appellant resulted from the tribunal of fact reading the pre-sentence report before hearing the evidence. Mr Lodato argued that the only features of the report which were arguably capable of causing prejudice to the appellant were suggestions that the appellant held sexist views. His written submissions stated that the nature of the allegation and the evidence in the case inherently contained a strong inference that the appellant had a propensity towards views and, by extension, actions, which to an objective observer might support the suggestion of sexist opinions. Orally Mr Lodato conceded that the reference to "sexist" was unfortunate. Nevertheless, he submitted that in view of the way the tribunal dealt with its findings on conviction, the content of the pre-sentence report did not taint the evidence of this case.

In this case, the probation officer who prepared the pre-sentence report had asked Social Services and the Borough Intelligence Unit whether there had been any similar call-outs by the appellant's wife. She had not received a report prior to finalising the report on 31 August for the sentencing hearing at the magistrates' court on 1 September. Her report is based on an assessment of the Crown Prosecution Service's documents and what the appellant said to her in interview.

The report refers to the preoccupation of the appellant with his financial situation, being barred from the marital home, his youngest son's behaviour to him at the time of the offence -- which had led to the police being called on three occasions, and was the subject of the argument with his wife -- and the time the appellant's wife spent with her sister. The material parts of the report state (page 2):

In my judgment, it cannot be said that consideration of the contents of this report before hearing the evidence was not prejudicial or at least did not appear prejudicial. For these reasons, I have concluded that the answer to the first question is "yes".

The formulation of the second question as signed (see [11]) appears to accept that the court was wrong to question the complainant about potential bad character of the appellant when there had been no application by either of the parties. [Note: at the hearing, Mr Bishop indicated that this was an error in his drafting which slipped through the net. The question should have read: "Were we wrong to question the complainant about potential bad character..."] The question asks whether, given the court's conclusion that the question having been asked in the light of the answer that there was no bad character to take into account: "Was it wrong in any event?"

The finding of the court is set out in paragraph 2.6(a) of the case stated. It is stated that, having heard the evidence, the court found:

The prosecution rely in their written submissions on cases dealing with interruptions by the judge at a trial with a jury. It is submitted on the basis of the decisions in R v Hamilton [1969] Crim LR 486 and Michel v The Queen [2010] 1 Cr App R 24 at 27 and 28, a decision of the Privy Council, that before a judge's conduct can be said to amount to an actionable error, a high threshold of objective unfairness must be reached.

Those cases were not, however, concerned with the tribunal adducing inadmissible evidence. They were concerned with the interruptions by the presiding judge, which in Michel mostly amounted to hostile cross-examination and expressions of incredulity as to the defence being advanced.

It is important for those presiding over trials and appeals at the Crown Court to remember that, notwithstanding the case management powers given to them by the Criminal Procedure Rules, our system remains adversarial and is not inquisitorial. Where a judge insists on a person answering a question where the parties, and in particular the prosecution, which has the responsibility for the conduct of the case against a defendant, do not consider the issue relevant, it does give the impression that the judge has descended into the fray in an inappropriate way.

In this case, the questioning concerned evidence which, even if material, is only admissible if the conditions set out in the Criminal Justice Act 2003 are satisfied. Those conditions include notice to the defendant within a specified timetable (see Criminal Procedure Rules 2010 SI 2010 number 60, part 35.2(1)(b), (2) and 35.4(2). It does not appear that any consideration was given to whether the statutory conditions were satisfied. The requirement of notice, moreover, means the defence will not be surprised and can respond. The way the matter was raised in the Crown Court meant that the appellant and his legal representatives did not have the notice contemplated by the statute and rules. I consider that there was no power to ask the question. That, as I have said, distinguishes this case from those relied on by the prosecution.

In the event, the answers given meant that no evidence of bad character was adduced. Having regard to the replies and the finding of the court, the prosecution submitted that the error, whether it is regarded as an error of law or a procedural error, resulted in no actual prejudice to the appellant and the court should exercise its discretion to deny relief.

A court considering an appeal by way of case stated can refuse relief when, notwithstanding the procedural error, the fairness of the trial has not been affected. In the present case, had the decision to ask the question about previous conduct stood alone, in the light of the answers and the way the tribunal dealt with them, it would have been arguable that this was such a case. But this was not the only procedural error. It is important to consider the cumulative effect of such errors. The cumulative effect of this error, and the reading of the pre-sentence report before any evidence, means that the appeal must be allowed and the conviction set aside.

Given this conclusion, the two questions concerning sentence do not strictly arise. But since there were full written submissions on them and we heard full argument on them on the issues raised, I set out my conclusions.

First, was the court entitled to find the complainant was vulnerable for the purposes of the sentencing guidelines? Secondly, was only immediate custody appropriate? The reasons given for the conclusion that it was (see case stated, paragraph 4.3) were:

The third question asked whether the court was wrong to find that the complainant was vulnerable for the purposes of the aggravating factor for the sentencing guidelines based upon her quiet demeanour in giving evidence. The court saw the witness and had the benefit of the pre-sentence report. It was submitted on behalf of the prosecution that fact finders often turn to common signatures of vulnerability, such as youth, old age or isolation, but that vulnerability is ultimately a finding of fact for the tribunal of fact which it is entitled and well-placed to assess having heard the individual give evidence on oath. Mr Lodato accepted that the way the case stated put this was not as particularised as it might have been, but maintained that this finding of fact was one within the power of the tribunal of fact.

There is no guidance as to the meaning of "victim is particularly vulnerable" in the Definitive Guideline on Assault and Other Offences Against the Person, on which both Mr Bishop and Mr Lodato relied. However, reference to the Definitive Guidelines on Overarching Principles on Seriousness and the Overarching Principles on Domestic Violence indicate that something more than a quiet demeanour in giving evidence is required.

The Overarching Principles on Seriousness at page 5 refer to vulnerability "by reason of old age or youth, disability or by virtue of the job". At page 4 of the Overarching Principles on Domestic Violence, there is a section on the position where a victim is particularly vulnerable. It states:

The question posed in the case stated refers only to a finding based on a quiet demeanour in giving evidence. We cannot go behind that, although Mr Lodato suggested that there were features of the case that went further. The aggravating factor is "particular vulnerability", and in the absence of any evidence as to vulnerability by reason of a factor such as those referred to in the Overarching Principles on Seriousness and the Overarching Principles on Domestic Violence, the answer to this question must be "yes".

I observe that this conclusion is supported by the fact that, as the prosecution stated (skeleton argument paragraph 4), the pre-sentence report does not state that the complainant was "particularly vulnerable" or, I add, even that she was vulnerable. The writer of the report states that she took account of the sentencing guidelines and would thus have been aware that this was an aggravating factor which would be relevant to her assessment of whether custody was appropriate.

The fourth question asks whether the sentence of two months' immediate custody was harsh and oppressive in the circumstances of this offence and this offender and in the light of the recommendations of the pre-sentence report. The threshold for this court to conclude that a sentence is unlawful and outwith the permissible sentencing discretion of the court is (see R v St Albans Crown Court, ex parte Cinnamond [1980] 2 Cr App R (S) 235 and B v Croydon Crown Court, ex parte Miller [1987] 85 Cr App R 152) a high one.

Those cases were primarily concerned with the margin of discretion, and what in another context is called "Wednesbury unreasonableness". Had it been necessary to decide this question, I would have concluded that, notwithstanding the recommendation in the pre-sentence report, this sentence was unlawful in the circumstances of this offence and this offender. I would have so concluded because the sentence was in part based on the conclusion that the complainant was a vulnerable victim, and for the reasons I have given I consider that the court fell into error in making that finding. Analysed in this way, this is a case in which a relevant factor was not taken into account or there was an error in the approach to that factor.

I also note that the reason for the report writer's statement that she was only able to recommend a custodial sentence, was that the appellant's "minimisation" and "partner blame" made him unsuitable for participation on the accredited integrated domestic abuse programme, which meant that a suspended sentence was not possible. This is because by section 190 of the Criminal Justice Act 2003 (seeR v Lees-Wolfenden [2007] 1 Cr App R (S) 119) a suspended sentence must be accompanied by at least one of the community requirements listed.

The pre-sentence report does not explicitly address the other criteria in the Definitive Guidelines relevant to the appropriateness of custody, but this court is concerned with the substance of the report, not the precise language used. The assessment in the report that the appellant's attitude supports the use of violence, intimidation or aggression as a means to control is solely based on his responses in interview and not on any other evidence, for example from agencies such as Social Services or the Borough Intelligence Unit.

The assessments of experienced probation officers are entitled to respect. But the conclusion in the pre-sentence report, that in effect the appellant was a man who used threats of violence to control his wife, was both unsupported by what he said in interview, in the oral evidence given by his wife at the trial, and the finding of the court that there was no relevant history of domestic violence. In the light of this and in all the circumstances of the case, since the appellant is a 57-year-old man of previous good character with no relevant history of domestic violence or abuse, and this offence consisted of a single blow which caused no injury other than a mark visible for a short time after the assault, I would have concluded that the sentence is harsh and oppressive.

In these circumstances, I have concluded that the answers to the questions are as I have stated them in this judgment and that the conviction must be set aside.

LORD JUSTICE ELIAS: I agree with my Lord that the answer to each of the questions posed in the case stated is "yes". I agree with him with his reasoning in relation to those questions. The conviction is quashed. (Aside to Mr Justice Beatson). Sorry, I am told in two of them the answer is "no", but I am not sure it is.

MR BISHOP: I was going to rise at that point because indeed my Lord you did say "no" in answer to the third question, but as to the way it is phrased, the question is "Were we wrong to find the complainant vulnerable?"

MR JUSTICE BEATSON: Then my Lord is right and I am wrong and I will correct that.

LORD JUSTICE ELIAS: Sorry, on that one question, I had rather read it as a mistake but maybe I am wrong. Should it be under (b) "Were we wrong..."?

MR BISHOP: My Lord, I believe that as you were aware, the case stated was drafted by myself and passed to HHJ Oliver. I believe my dyslexia has slipped through the net and it was meant to have been "Were we wrong..." and not "We were wrong."

LORD JUSTICE ELIAS: I dyslexically read the sentence.

MR BISHOP: I believe that the case stated was incorrect in that sense, my Lords, but we arrived at the same conclusion.

LORD JUSTICE ELIAS: Can I thank you both of you. You had a difficult row to hoe and you put your points very well. Thank you very much.

MR LODATO: My Lord, may I raise one final matter. Given than the conviction is quashed, may I raise the issue of the restraining order that was imposed at the last hearing. My understanding is that the complainant in this case has been in contact with the respondent about the restraining order in particular and she is very keen that that order remain in place. I do not seek to go behind what she has said in support of that, but I understand the application is not opposed by my learned friend.

MR BISHOP: If I may just take instructions, my Lord, because when I spoke to my learned friend earlier I had not had a chance to speak to Mr Barnard at that point, because I will have to explain obviously there is a possibility in any event of a post-acquittal restraining order in the provisions, and I would seek to dissuade him, but in fairness to him if I may take his instructions.

LORD JUSTICE ELIAS: It may well be in his own interests, but there we are.

MR BISHOP: Indeed, my Lord.

My Lord, it will be opposed to keep it, the reason being is there is an occupation order in force from the family court which prevents his return to the house in any event. Indeed, there is a non-molestation order too. Those are in force currently, thus this is belt and braces, should we say, and it is in fact not required because there are such orders in place currently. If they are considered by the family court in its eventual requirements that they are still required to continue, they will so continue. So in this case there is a protection for the complainant by a court of law in any event and this is a superfluous additional version of something that exists anyway from another court.

MR JUSTICE BEATSON: Were the family ones imposed before this conviction or after?

MR BISHOP: They were in place before. Within a day, the matter was taken to the family court and the non-molestation and occupation order was imposed at that stage by that court prior to both the original trial and the trial (Inaudible).

MR LODATO: My Lord, in light of the appellant's position, may I make my submissions somewhat more fully.

LORD JUSTICE ELIAS: Well, do you accept that there are these orders in place in the family court?

MR LODATO: My Lord, I am not aware of the nature of any order standing.

MR JUSTICE BEATSON: I think that is material. I am very loathe to make additional orders which simply impose another burden in circumstances where there has been an acquittal. You can make an application afresh to the court below if, for some reason or another, the family injunctions are not sufficiently broad or do not cater for your client's needs. But I do not think we should just make orders unnecessarily, what is an important restriction on someone's freedom, where there may be orders in place which are proportionate and do what you seek him to do.

MR LODATO: Very well, my Lord.

LORD JUSTICE ELIAS: I trust this will be the end of it effectively, now, will it? The man has spent three days in prison, as I understand it.

MR LODATO: My Lord, I fully expect there to be no resurrection of these proceedings.

LORD JUSTICE ELIAS: I hope not. Thank you very much indeed.