R v Cairns [2013] EWCA Crim 467

Significance

In the course of four appeals against sentence, the Court of Appeal restated the principles concerning the proper approach to be adopted by judges in relation to the basis on which a guilty plea had been entered. Paul Lewis QC appeared for the Crown and Ian Murphy QC appeared for the appellant Rafiq.

Facts

The first appellant (C) pleaded guilty to possession of Class A drugs with intent to supply and had been sentenced to three years’ imprisonment. C signed his plea but it was not specifically accepted by the Crown. C was sentenced on the basis that he had been street dealing, contrary to the basis of his plea that he was a personal user and a supplier to friends and associates.

The second appellant (M) pleaded guilty to meeting a child following sexual grooming, had been sentenced to 33 months and made subject to a sexual offences prevention order. M’s plea that he had not intended to have penetrative sexual activity with the victim until she was over 16 was not signed or specifically accepted by the Crown. M alleged that the judge had sentenced him on the basis that he had that intention.

The third appellants (R and D) pleaded guilty to involuntary manslaughter and had been sentenced to 10 years’ imprisonment. Initially they had been charged with murder and conspiracy to rob. R and D had robbed the victim after the attack and, as there were no appropriate manslaughter sentencing guidelines, the judge had used the analogy of Level 3 robbery, namely 12 years, as a starting point for sentence. They appealed on the ground that the judge had failed to honour a previous verdict by a jury acquitting them of conspiracy to rob.

The fourth appellants (F and L) pleaded guilty to conspiracy to handle stolen goods and were sentenced to four years’ and 27 months’ imprisonment respectively. Their bases of plea, F’s unsigned and L’s signed by his counsel and him, did not take issue with the Crown’s case, but merely asserted their own.

Held By The Court Of Appeal (see paragraphs 1 – 10 of the judgment)

Too many appeals against sentence are brought on the basis that the trial judge failed to have proper regard to the basis on which a plea of guilty had been entered. While a jury was concerned with the issue of guilt, it was not concerned with any mitigating or aggravating circumstances. These issues are relevant for sentencing and are the province of the judge.

In assessing the gravity of an offence, a judge was entitled and required to make his own assessment of the facts. Those facts also informed the Court of Appeal in the case of an appeal or an Attorney General’s reference. It was the same with a guilty plea: an offender was admitting the offence but not necessarily all of the facts or inferences alleged by the Crown. The facts informing the judge’s assessment would normally be based on the Crown’s case. The onus was on an offender if he wished to challenge that account.

The proper approach for the Crown was set out in the Attorney General’s Guidelines on the Acceptance of Pleas and the Prosecutor’s Role in the Sentencing Exercise and based on R. v Tolera (Nathan) [1999] 1 Cr. App. R. 29:

• Regarding a defendant and the court, a basis of plea could not be agreed on a misleading or false set of facts and had to take proper account of the victim’s interests;
• Pleas by multiple defendants should be consistent with each other;
• Where mitigation rested on alleged facts outside the Crown’s knowledge the judge should be invited to reject them unless stated on oath and after cross-examination and to draw his own inferences;
• The Crown must ensure that defence counsel were aware of the basis on which the plea was accepted and of the way the case would open, and the basis, in writing, should be signed by both counsel and submitted to the judge before opening;
• The plea should not contain disputed matters;
• If not agreed the disputed issues should be set out in writing and if necessary there should be further representations or evidence in accordance with the principles in R v Newton (1982) 77 Cr App R 13;
• Even where the basis of plea was agreed by both sides, the judge was not bound by the agreement. However, if he was minded not to accept it he should say so.

Following the correct approach, C’s sentence was reduced to 28 months’ imprisonment, M’s was reduced to 21 months and the order was amended, and the appeals of R and D were dismissed. F’s application for leave to appeal was refused and L’s sentence was reduced to two years’ imprisonment.

The full text of the judgment can be found here.

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Author: Paul Lewis 2001 Farrars (plewis@farrarsbuilding.co.uk)

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