June’s Q & A with Jason Elliott

Q: I pleaded guilty to a couple of drugs offences. The Judge sentenced me to 14 years. I think my sentence is too high but my solicitors have told me that the Court of Appeal might give me an even longer sentence if I appeal. Is there anything I can do about it?

A: I often hear people saying that the Court of Appeal has the power to increase sentences. They don’t. The Court has no power to increase your sentence if you appeal. If an appeal is wholly without merit the Court has the power to order that the period, or part of the period, that you have already served shouldn’t count towards your sentence. This power is only used in cases where an unsuccessful leave application is renewed before the full Court. When an application for leave goes before the Single Judge, the form on which they provide the reasons for their decision includes a box that they can initial in cases where they believe a loss of time Order may be appropriate. If the box has been initialled it would be a bad idea to renew your application to the full Court without very good reasons, but the suggestion that your sentence can be increased if you appeal is legally wrong.

Q: I’m due in court next month. I’m thinking about pleading guilty and I’ve heard about credit for guilty pleas but I’m not sure how it would apply to my case as I went ‘no comment’ when I was interviewed.

A: New Sentencing Guidelines about Credit for Guilty Pleas apply to all cases where the first court appearance is on or after 1st June 2017. The new Guidelines say that admissions at interview, remorse, or assisting the police aren’t relevant to the calculation of credit for a guilty plea (although they remain relevant as mitigation). The maximum credit available for a guilty plea is 1/3. This is available where a plea is indicated at the first stage of proceedings – usually the first hearing where a plea or indication of a plea is sought. This is in contrast to the view some Judges used to take, that they wouldn’t give full credit if you could have admitted the offence at interview but chose not to. If you plead guilty at a later stage, credit is now on a sliding scale ranging from ¼ to 1/10, depending on when the plea is entered. Pleading guilty on the morning of your trial will now only allow credit of 1/10 of the sentence. All of this may sound as though it’s more about cutting costs than providing justice, but you should think very carefully about the implications. If you’re facing a short sentence, an early guilty plea may provide sufficient downward impact to mean the difference between prison and a community based sentence.

Q: I’m on a SOPO. Can I use snapchat?

A: If your Order prohibits you from using a device that is incapable of displaying its internet history then Snapchat isn’t for you. Snapchat is a mobile phone app that has the capacity to delete images. Material deleted by Snapchat can still be viewed using specialist forensic software. A Judge at Maidstone Crown Court recently ruled that the use of Snapchat breached a prohibition on using devices that don’t display their internet history and was therefore a breach of a SOPO. He imposed a suspended sentence for the breach.

Q: Recently I received an extended sentence. The Judge said that he would provide written reasons for his decision at a later stage. He’s done that, but I wondered whether it was something that I could appeal.

A: What the Judge did was wrong. Reasons should be given in open Court. In a recent judgment[1] he Court of Appeal said –

“… it is crucial that the articulation of the reasoning takes place orally in public. This is to ensure that the public at large, which includes the press who might cover a sentencing exercise, are made fully aware of the reasons for the sentence passed. Transparency in the working of the justice system is integral to the maintenance of public confidence in that system. Transparency is equally critical in ensuring that the defendant knows exactly why the sentence has been passed and it facilitates consideration of possible grounds of appeal. For similar reasons it enables the Crown to know whether they should oppose an appeal and, if so, upon what basis and even whether they would wish to challenge a sentence as unduly lenient…”

The fact that the Judge should have given reasons for your sentence in open Court doesn’t automatically mean that you have a basis to mount an appeal. That will depend on the full facts of your case as a whole.

Q: At my murder trial I argued that I acted in self defence. I was acquitted, but I was convicted of manslaughter. After my conviction my barrister mitigated on the basis that I had acted in self defence but that I had used excessive force. The Judge rejected this. Was he entitled to?

A: Where there is more than one possible explanation for a Jury’s verdict the Judge has to decide which he accepts. He has to decide this on the basis of the criminal standard of proof.[2] In your case, the Jury’s verdict meant that they couldn’t be sure that you had an intention to kill or cause serious harm, but they could be sure that you intended to do some harm. The Judge had to decide on the facts whether that was caused by excessive self defence. If he couldn’t decide whether or not that was the case then he had to sentence on the basis that was most favourable to you. The issue of whether this may give rise to grounds of appeal is fact specific.

[1] R v Billington [2017] EWCA Crim 618

[2] R v King [2017] EWCA Crim 128

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