Thornton and another v Director of Public Prosecutions; [2010] WLR (D) 17

CRIME — Sentence — Imprisonment — Justices convicting defendants and indicating sentence likely to be community order — District judge sentencing defendants to suspended custodial sentences in accordance with sentencing guidelines — Whether defendant having legitimate expectation that sentence would be community order — Whether sentence to be reduced

Thornton and another v Director of Public Prosecutions

[2010] WLR (D) 17

QBD: Aikens LJ, Openshaw J:
28 January 2010

When assessing whether an indication by convicting justices as to the type of sentence which a defendant was likely to receive from a different sentencing judge gave rise to a legitimate expectation on the part of the defendant that the sentencing judge would in fact pass sentence in accordance with such an indication, the sentencing judge needed to consider whether the justices had complied with their duty pursuant to s 172 (1)(b) of the Criminal Justice Act 2003 to have regard to sentencing guidelines when carrying out a function relating to the sentencing of offenders.

The Divisional Court of the Queen’s Bench Division so held, dismissing the appeal by way of case stated by the defendants, James Adam Thornton, and Carl Thompson against their sentences imposed by District Judge Deborah Wright acting in and for the Local Justice Area for Hillingdon in respect of her adjudication at the Uxbridge Magistrates’ Court on 22 July 2009 for offences under s 4 of the Public Order Act 1986.

The defendants had been convicted by the justices who had then completed sentencing reasons forms and indicated to the defendants that they were likely to receive a community order. The district judge, having regard to the Sentencing Guidelines for Magistrate’s Courts for offences under s 4 of the 1986 Act, as she was required to do by s 172(1)(a) of the Criminal Justice Act 2003, took the view that the incident fell into the most serious category and sentenced the first defendant to 20 weeks’ custody suspended for 18 months with conditions and the second defendant, to 12 weeks’ custody suspended for 18 month also with conditions. On the defendants’ appeal by way of case stated the questions for the court were: 1. Where an indication given to a defendant about the level at which s/he is to be sentenced is inconsistent with Sentencing Guidelines Council guidelines and no reason has been given for departing from the guidelines, can the defendant be said to have a legitimate expectation? 2. Can an indication which creates such an expectation override the statutory duty set out in s 172 of the Criminal Justice Act 2003 to have regard to relevant guidelines? 3. Did the district judge err in law in diverging from the sentencing indication given by the justices?

AIKENS LJ said that there was a general principle that where the justices gave an indication of sentence in sufficiently unqualified terms to found a legitimate expectation in the mind of the defendant the sentencing judge should act in accordance with that indication: see R v Nottingham Magistrates’ Court, Ex p Davidson [2000] 1 Cr App R (S) 167. To justify an interference with a decision it would have to be truly astonishing: see R (Harrington) v Bromley Magistrates Court [2007] EWHC 2896 (Admin). In assessing whether the decision of the justices was so unreasonable as to be incapable of giving rise to a legitimate expectation it was necessary to consider whether the justices had had reasonable regard to the sentencing guidelines pursuant to s 172(b) of the 2003 Act and, depending on the circumstances of the case, whether it provided the sentencing court with a reason to depart from the justices’ indication as to sentencing. The answers to the questions posed in the case stated were accordingly: (1) no reason had to be given for departing from guidelines but whether a legitimate expectation arose in such cases depended on the facts of the case; (2) if the expectation were legitimate then the justices would have complied with their duty pursuant to s 172(1)(b) of the 2003 Act; and (3) the convicting justices had failed to have reasonable regard to the sentencing guidelines and in the circumstances of the case the district judge had not erred.

OPENSHAW J agreed.

Appearances: Adrian Chaplin (instructed by Martin Murray & Associates, West Drayton) for the first defendant; Helen Guest (instructed by Crown Prosecution Service, Isleworth) for the prosecutor; the second defendant did not appear and was not represented.

Reported by: Jessica Giles, solicitor.