B e f o r e :
LADY JUSTICE MACUR
MRS JUSTICE CHEEMA-GRUBB
MR JUSTICE MARTIN SPENCER
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MS M KERR appeared on behalf of the Appellant.
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MRS JUSTICE CHEEMA-GRUBB:
- This is an appeal against sentence with leave of the single judge, which engages the Sentencing Council's Reduction in Sentence for a Guilty Plea Guideline.
- The central question is whether a guilty plea was indicated at the first stage of proceedings so that the normal maximum level of reduction, namely one-third, should have been applied at the sentencing. In addition, Ms Kerr wishes to renew her application for leave on one of two further grounds rejected by the single judge, namely the length of the sentence reached by the judge prior to her consideration of aggravating and mitigating features.
- Alomgir Kabir (who is now aged 41) was present at Basingstoke Magistrates' Court, when he was sent for trial by jury on three either-way charges on 5 February 2024, pursuant to section 51(1) and (2)(b) of the Crime and Disorder Act 1998.
The sending notice had a blank space where any indication as to pleas would be ordinarily recorded. The original date for hearing at Winchester Crown Court was 6 March, but the first appearance was delayed at the request of the parties. The resident judge noted on the Digital Case System on 12 March that no indictment had been uploaded. This was done on 26 March, and it followed the sent charges, except in one particular which we shall come to. In the meantime the complainant ("C") was in contact with the court and the police asking about progress.
- Mr Kabir (who we shall call "the defendant") appeared on 3rd April 2024 for a pre-trial preparation hearing on the three-count indictment. Count 1 alleged controlling or coercive behaviour in an intimate or family relationship which had a serious effect, in that it had caused his ex-partner to fear, on at least two occasions, that violence would be used against her contrary to section 76(1) and (11) of the Serious Crime Act 2015. Count 2 was a similar but lesser offence which alleged that his controlling or coercive behaviour caused her serious alarm or distress, which had a substantial adverse effect on her usual day-to-day activities. These formulations of the offence are permitted by section 76(4) (a) and (b). Count 3 was an allegation of stalking, contrary to section 4A(1)(a)(b)(ii) and subsection (5) of the Protection from Harassment Act 1997. The particulars of counts 1 and 3 alleged behaviour between 28 December 2015 and 1 September 2021, while the period in count 2 was a little wider, between 28 December 2015 and 28 December 2021. This extended date was not in the sent charges which had the same dates frame for each count and it was later recognised to be an error in drafting the indictment.
- The allegations arose from a breakdown of a 9-year relationship, the last two-thirds of which were said to have been characterised by the defendant's jealousy, violence, criminal damage and threats of violence against C, their child and C's family. We will return to the detail in due course.
- On a PTPH form Ms Jay, the Solicitor Advocate who represented Mr Kabir in the Magistrates' Court and through to sentence, had answered the question:
"Can the defendant be arraigned at PTPH?"
With:
"Yes. Will plead guilty to count 1 on a basis and not guilty to counts 2 and 3."
The basis of plea was served and the defendant duly entered those pleas. The prosecution did not state that the charges were alternatives and directions were made for trial on the remaining counts, with a provisional trial date in September 2024 and an estimate of four days. HHJ Dougdale noted on the Digital Case System:
"The defendant accepts violence on count 1. He has entered a basis of plea but disputes what the defence understand to be the allegations in count 2 and 3."
- A further case management hearing was ordered to take place on 3 May and by that time the prosecution was to have decided whether a plea to count 1 was sufficient and whether the basis was accepted. If the plea was not acceptable, the prosecution was to set out in writing which incidents were covered by count 1 and which by the remaining counts. A potential bad character application, concerning the defendant's alleged misconduct in previous domestic settings was discussed. The judge also indicated that if there was to be a trial the complainant's ABE interview should be edited to a maximum duration of 90 minutes.
- On 3 May HHJ Fuller KC conducted a further case management hearing at which the court was told that counts 2 and 3 were alternatives to count 1, and it was not the Crown's intention to seek a trial on them. However, the basis of plea was not accepted. The judge encouraged the parties to reach agreement on the factual basis for sentence if possible, and for the Crown to serve a bad character application if there was to be a Newton hearing. He observed that the complainant was still anticipating a trial of some kind and she was entitled to know if there was not to be one, as soon as possible. He ordered an Opening Note and a response to the basis of plea to be served by 10 May and any amended basis of plea by 17 May.
- On 10 May the prosecution responded in writing to the basis of plea. The document prepared by counsel explained that count 2 was distinguished by the impact on C, and count 3 offered an alternative characterisation of the course of conduct itself. The note provided a summary of the facts running to some 32 paragraphs. The basis of plea tendered by the defendant was not acceptable in its current form because of counter allegations he made against C, its inclusion of matters of pure mitigation and the minimisation of some of the violence. Detail was provided on each of these topics. The note also addressed the application of a Sentencing Council Guideline for offences of controlling and coercive behaviour in an intimate or family setting.
- This section of the note begins as follows:
"Regardless of the content of D's basis of plea, both the Crown and the Defence place this matter at category 1A... With regards to culpability, D's conduct was persistent over a prolonged period, used multiple methods, and was intended to humiliate and degrade. These are all category A features. The matter is category 1 harm as the fear of violence occurred on many occasions and had a substantial adverse effect on C."
The prosecution recognised however that, if the court was to sentence on the defendant's basis, it will be unlikely to reach a lower categorisation of harm or culpability. The starting point for a category 1A offence is 2 years 6 months' custody within a range of 1 to 4 years. The case was said to be aggravated by a history of violence or threats in a domestic context as his text messages demonstrated. Finally, the prosecution acknowledge the only credit for a guilty plea would be a matter for the court.
- An amended basis of plea was served on 17 May. The defence also served a Note on Sentence on that date. The defendant maintained that the relationship was mutually toxic and continued to accuse C of being deceitful. Further details about the mitigation to be relied were included. It was conceded that the starting point for sentence was still within the 1A bracket in the guideline due to the repeated violence perpetrated by the defendant over a prolonged period and the impact on C as set out in her ABE.
- On the question of credit for plea, it was submitted that if the court sentenced without the need for a Newton hearing the defendant was entitled to full credit for his plea of guilty. Ms Jay's reasoning was as follows:
"14. The Crown have only just clarified to the court that counts 2 and 3 were alternatives. This had not been made clear in the magistrates' court or at the PTPH at the Crown Court. HHJ Dugdale and HHJ Fuller both commented at separate hearings that it was unclear how the Crown put their case.
15. This is an offence stretching over a 6-year period encapsulated in a VRI of over 3 hours in duration. The original summary did not give the detail and the defence requested that the video and/or transcript be served on no less than seven occasions... The original PTPH date (6 March) had to be put back as the evidence had still not been served by that time. It was finally served on 14 March and the detailed basis of plea was submitted on 4 April 2024. The Crown were then ordered to serve a written response by 2 May 2024, which they failed to do and this was then ordered again at a hearing on 3 May. It is now being complied with on 10 May. It is submitted that the defendant has entered his guilty plea at the first realistic opportunity to do so."
- The case was listed again For Mention on 24 May to determine whether a Newton hearing was required. The judge, on that occasion, observed that the differences between the parties that still remained were unlikely to be material to sentence. But, following further discussion between the parties and between the prosecution and potential witnesses, consideration of whether to hold a Newton hearing was adjourned to 7 June. In the meantime, the defence were ordered to serve a schedule of those allegations that the defendant accepted by 5 June. This was done.
- At a hearing on 7 June the parties finally reached agreement. While the basis of plea was not accepted, the schedule of admitted allegations underlying the charge to which he pleaded guilty was agreed between the parties.
- We take our summary of the facts primarily from this document as it was opened to the judge. The couple met at work. The relationship was fraught from the start. But in 2016 the defendant became fixated on a man "Jonny" with whom his partner had had a brief sexual relationship in the past. He made her send messages to someone who the man knew so he could receive confirmation that she had not renewed their contact. This and another past relationship with an actor were the focus of the defendant's suspicion and anger, as well as both threatened and actual violence on many occasions from that time onwards. In 2018, he followed her to a restaurant watching her while she ate dinner with a friend. He sent her abusive messages about it. The same year he booked a hotel for her birthday but during the trip he forced her to send messages to Jonny asking him whether she had ever sent naked photographs of herself to him. Not satisfied with this, the defendant took her phone and sent a further message, himself pretending to be her, before throwing the phone at her head in anger. His preoccupation continued. He drove her to Jonny's house, where she had to get out of the car and run away and hide to get away from the conflict and make her own way home.
- The defendant had a pattern of controlling who C could and could not see in person and who she could have contact with on social media. In November 2018, he made her promise that when she goes to a party there will be no black men there. This racial element of the defendant's jealousy was a marked feature at that time and it caused C to feel degraded. In early 2019, when they were on holiday abroad, the defendant became abusive while drunk and assaulted her in the hotel room, striking her multiple times on the body and face, including while she was on the floor. A couple of months later he hit her in the face while angry during a drunken row outside his house. He then locked her outside and she had to sleep in her car. In the summer of 2019, he hit her hard in the face causing her a nosebleed. When her sister arrived at the house to help clean up the profuse bleeding, C had to placate the defendant and pretended that the incident was her fault. She covered a black eye that he had caused in that incident with makeup and sunglasses for several days.
- In September, he took her to Centre Parks for her birthday as an attempt to make up with her but, again, he brought up her relationship with Jonny and was abusive. When an error was made with his food order, he became angry and abusive towards C. He would not calm down until the early hours of the following morning. In January 2020, during a row, again about Jonny, while the two of them were in her car, another relatively confined space, the defendant grabbed C by her hair and hit her several times in the face. She managed to sound the car horn whereupon the defendant's sister and nephew came out of their house and he desisted, enabling her to leave. The next month he got into her car and refused to leave until she transferred £700 to him as a refund for the trip to Centre Parks. She felt intimidated and forced to comply, fearing he would assault her again if she did not. In August that year he booked a hotel but he became angry when she refused to drive to pick up a take-away. He was abusive towards her, making references to her previous relationships. As part of this that night he smashed up the hotel room. Again, a location in which she felt somewhat isolated with him.
- In March 2021, while C was 8 months' pregnant with their child, the defendant became angry when she failed to finish a cup of tea that he had made for her. He made a remark about Jonny and forced the teabag from her into her mouth. She ran out of the house through the back door to get to her car and escape. On 1 April that year, after she had made breakfast for him, he threw the plate against the wall, smashing it.
- During the late spring of 2021, shortly after the birth of their daughter, the defendant became abusive while C was breastfeeding, following her through the house when she attempted to move away from him. Later, during the same year, they were on a walk when the defendant became angry again about Jonny and the actor. During a protractive period of abuse when she was taking steps to end their relationship, he threatened to petrol bomb C's house with her and their daughter inside it.
- The flavour of the type of regular communication abuse C experienced was illustrated by a selection of messages he had sent to her. Seven of the messages were included in the Agreed Facts, although it was accepted that these were to be seen against the abusive communication that he regularly sent, frequently calling her a "whore", a "little tramp" and a "fucking evil little cunt of a whore". The messages included the following:
"I had to beat things out of you. I had to make u cry and be upset until you told me things.
Perhaps you're behaviour and attitude made some contributions to why u were hit. Unless I'm a psycho and laid my hands on you because u were an angel.
Otherwise I will come and kill you so u don't have a baby and I will stab your cat. Take that as a threat if it means u will leave me the fuck alone.
Jonny and his mate should have gang raped the fuck out of you so u knew what u were worth to him."
The blaming of his victim for his own conduct was a particular theme of the defendant's psychological abuse of his partner.
- When he visited the house again and made threats in 2023, C contacted the police and indicated that she would support an investigation. The defendant was arrested on 4 May 2023 and interviewed. He made no comment when the allegations were put to him.
- Sentence was listed on 9 August 2024 and HHJ Durran KC had available a pre-sentence report, a psychological report and other background mitigation material. To the author of the pre-sentence report, the defendant described himself as very insecure throughout the relationship with C and increasingly jealous, defensive and possessive towards her. Although he had reflected on his behaviour and accepted full responsibility, when discussing specific events he did not demonstrate understanding of how to behave in a healthy relationship and how to manage his temper. He said that racial abuse that he had experienced as a child led to particular sensitivity on his part, if C was involved with black people. He had moved back to his mother's address after his relationship finished and he shared caring responsibilities for her with his sister. He was assessed as posing a medium risk of causing serious physical, emotional and psychological harm through violence, manipulation or verbal abuse towards a future intimate partner but the risk could be ameliorated by relevant intervention work. He also posed a risk to C and their child, although these were not imminent risks. He had a good work history, running several small businesses and he hoped to have some kind of contact with his daughter in due course.
- The psychologist traced the roots of the defendant's difficulties with intimate relationships to a stressful and traumatic upbringing that he reported. This led to the diagnosis of a mental health disorder with possible psychotic elements and anger issues as well as a risk of suicide. He was receiving counselling.
- The maximum sentence is 5 years' imprisonment. The defendant had no relevant previous convictions. As to culpability, the prosecution highlighted the persistence of the conduct, its escalating nature, the intention to maximise C's fear and distress, elements of humiliation and degradation, the use of specific and express threats and some of the abuse being in isolated environments. As to harm, the defendant maintained the abuse while C was pregnant. There were numerous threats of violence and actual violence on more than two occasions. The threat of violence led C to behave in accordance with the defendant's demands. The prosecution accepted that a handwritten, undated letter from C to the defendant expressed some jealousy on her part.
- In mitigation, the judge was told that having had time to reflect on his behaviour the defendant accepted full responsibility for failures to control his emotions and no longer blamed C. Remorse expressed in the pre-sentence report was relied on and the judge was urged to accept it as genuine. The defendant also relied on the diagnosis of a severe depressive and anxiety disorder and insecurity, which was said to be the driver of the ugly behaviour he displayed. In 2017 a relative had been killed in Bangladesh which had caused the defendant to experience PTSD and to return to using cannabis. His obsession with race and his relationship with C was said to have arisen from childhood experiences, as we have noted.
- While it was agreed that the Sentencing Guideline categorisation at 1A applied, the judge was urged to give the full one-third reduction for the guilty plea at the PTPH, have regard to the mitigation and to suspend the inevitable custodial sentence as the defendant was willing to engage in rehabilitation. It was argued that a guilty plea could not be entered until the defendant had seen a full transcript of C's ABE interview and that was not served until shortly before the PTPH date. It was also unclear what was alleged in each of the three counts. The plea was entered as soon as the defence had the transcript and the recording of the ABE.
- There was no victim personal statement before the court but the judge proceeded on the established basis that this was a 1A offence. In her sentencing remarks, having rehearsed the facts, the judge accepted that each individual episode of the defendant's violence was likely to have been impulsive but she found a clear pattern of violence. She found no aggravating features. She rejected the submission in the prosecution's 10 May note, that a history of domestic violence was present due to the duration of the offending, as this would amount to double counting. The mitigation she accepted was remorse. The post-traumatic stress disorder following the death of a family member, a difficult and deprived background which resulted in disordered thinking standards. She did not accept a submission that the defendant was the sole or primary carer of his mother as there was another family member involved.
- The judge then stated that her starting point was 4 years. This is incorrect; the starting point is a precise term of art in the context of a Sentencing Council Guideline, and it applies only to the specific starting point listed as such in each category. In this case it was, as agreed between the parties and accepted by the judge during submissions, 2½ years. What the judge meant was that her provisional sentence, before allowing for aggravating and mitigating features in Step 2 of the guideline and the guilty plea at Step 4, was 4 years' custody. Once a starting point has been identified, every adjustment thereafter leads to a provisional sentence subject to any remaining step in the guideline. In the defendant's case the judge expressly described the term she had reached as reflecting the relevant features of the case before her, particularly the duration of the offence, the repeated acts of violence, the different forms of controlling behaviour and the use of violence when the victim was pregnant. She found, as we have said, no aggravating features present and allowed a reduction of 1 year for the mitigation.
- Turning to Step 4, the judge said this:
"As far as credit is concerned, I accept that there was a delay in the provision of the full achieving best evidence interview, but [it] having been served there was back and forward between the Prosecution and Defence, ground given on both sides, but you would have known fundamentally that your conduct, the type of messages you were sending and your violence, all of those you would have known. I consider the proper reduction for a guilty
plea is 25%. Accordingly, the sentence that I arrive at is a sentence of 27 months' imprisonment. That is not a sentence that is capable of suspension."
The defendant was ordered to pay the statutory surcharge and a restraining order of 10 years' duration to protect C was imposed. In due course, following a listing under the slip rule, no evidence was offered on counts 2 and 3 and not guilty verdicts were entered.
- Ms Kerr has presented the appeal. We are grateful for her submissions. It is convenient to deal with the renewed application first. Ms Kerr seeks to challenge the length of the provisional sentence reached before taking account of mitigation. In writing, she has referred the Court to similar cases and submits that this was not the most serious example of controlling or coercive behaviour in an intimate relationship that the courts might see.
- In our judgment, controlling and coercive behaviour in an intimate or family setting is an offence that is quintessentially fact specific and for the purpose of sentencing comparison with other determined appeals which involve no point of principle is fruitless. This was a sustained case of controlling or coercive behaviour in an intimate relationship involving actual violence. The judge was entitled to conclude that the higher culpability and harm factors required a movement up in the range from the starting point of 2½ years. We observe that all but one of the five higher culpability factors were present. The starting point would necessarily be applied for a single one. The existence of a particularly grave form of the offence, marked by a manifold features of high culpability and/or serious harm is one of the reasons why there is a range in each category. As the rubric beneath the heading in the guideline states:
"The starting point applies to all offenders irrespective of plea or previous convictions.
Having determined the category at step one, the court should use the corresponding starting point to reach a sentence within the category range below."
The table with the starting points and category range is set out underneath. After that table appears:
"The court should then consider any adjustment for any aggravating or mitigating factors."
The non-exhaustive list is provided.
- The defendant controlled and kept his partner under threat of violence for years. She was subjected to violence even when particularly vulnerable while pregnant and she was abused while in the defenceless role of breastfeeding her baby. In our judgment, an adjustment upwards from the category starting point to a provisional sentence of 4 years was justified. We refuse leave to pursue this ground.
- Ms Kerr's submission on the ground on which leave was given is that the defendant was entitled to full credit for his guilty plea at the Crown Court because, although no plea had been entered in the Magistrates' Court, it had been indicated at the hearing that there would be a guilty plea or pleas but it was not clear at that point how the Crown would put their case with respect to any of the three charges.
- In light of that submission in writing and following the listing of this appeal for hearing, counsel was asked to deal with the lack of any indication of plea in the magistrates sending sheet which appeared to contradict the submission. The defendant waived privilege and the court has been provided with a statement from Ms Jay together with her notes of a meeting with the defendant before the hearing and her hearing notes. We set out some extracts from notes. From the meeting:
"I've read it through and I'm feeling that I am not guilty. Violence. Feel really guilty about that. Level of remorse. In fact accepting a large amount of the violence, then likely a guilty plea will be the best way forward. From the hearing, agree that there is likely to be some form of guilty plea but that we really need to prepare it properly given the seriousness. Will indicate that to preserve his credit. Will enter no plea."
- In her written submissions Ms Kerr argued that greater credit than normally allowed for the PTPH was required because the offence was complicated, involving a 6-year relationship with more than 25 different incidents, the evidence was in a summarised and confusing form until 14 March, when the ABE transcript was served, the defendant was entitled to know the case he had to answer. It was not clear whether counts 2 and 3 were alternatives. The guilty plea was entered at the first hearing in the Crown Court despite many of the matters listed above not having been clarified and his acceptance of guilt and intention to plead guilty was indicated at the first hearing and throughout in correspondence with the Crown and the court. She accepts that the sending sheet records no indication as to plea and that the submission to the judge at the sentencing hearing was not predicated on a guilty plea having been indicated at the Magistrates' Court, rather that the defendant was entitled to full credit because the Crown's case was not clear until shortly before he entered his plea.
- The only correspondence on the Digital Case System from Ms Jay is dated 26 February 2024 in which she notified the court that an agreement has been reached for the PTPH to be adjourned. She states:
"Having taken instructions we feel optimistic that this case can be resolved with the basis of plea, but it must be written in response of the defendant having seen the actual footage/read the full transcript."
- The Sentencing Council's Guideline on Reduction in Sentence for a Guilty Plea ("the Guideline") sets out the straightforward principles the court should apply when reducing the punitive aspects of a sentence after a guilty plea. Section 73 of the Sentencing Code requires the court to take into account at subsection (2)(a) the stage in the proceedings for the offence at which the offender indicated the intention to plead guilty and at (2)(b), the circumstances in which the indication was given. The reasons why those were going to plead guilty are encouraged by the guideline to do so as early in the court process as possible are well understood. Essentially, as the positive impact on victims and witnesses and the saving of public time and money on investigations and trials. To promote these benefit and provide an incentive to guilty to indicate their plea as early as possible the guideline makes what is called a "clear distinction" between a reduction in sentence available at the first stage of the proceedings and a reduction in sentence available at a later stage. The normal maximum reduction at the first stage is one-third, thereafter a sliding scale applies from 25 per cent down.
- The Better Case Management Revival Handbook 2023 is a guide to those practising in the criminal courts and it explains the position with clarity:
"To obtain maximum credit for plea it is essential that for either-way offences a guilty plea is entered at the Magistrates' Court or for indictable-only offences that there is an unambiguous indication of guilty plea recorded on the BCM form. Any basis of plea should either be agreed in the Magistrates' Court and recorded on the BCM form or failing that, uploaded to the DCS and in future common platform with notice of the prosecution. Their basis does not ultimately bind the sentencing judge."
- No BCM form was uploaded to the DCS in this case. The form is available on the Criminal Justice System common platform. Ms Kerr does not know why it was not utilised.
- Returning to guideline. Holroyde LJ (Vice-President) gave guidance on the application of section 73 of the Sentencing Act and the guideline in R v Plaku & Others [2021] EWCA Crim 568. It appears from cases before this Court since, some of which we have been referred to, that the guidance has not always been at the forefront of the minds of those making submissions on reduction for early guilty pleas. Three points were emphasised at paragraph 6:
"First, by section 59 of the Sentencing Code (formerly section 125 of Coroners and Justice Act 2009), a court must follow any relevant sentencing guideline unless satisfied that it would be contrary to the interests of justice to do so. Secondly, the guideline, like section 73 of the Sentencing Code, focuses on the time when the guilty plea is indicated, not when it is entered. Thirdly, a clear distinction is deliberately drawn between the reduction in sentence available at the first stage of proceedings and the reduction available at any later stage. That distinction is reinforced in section D of the guideline."
Second D provides that the maximum level of reduction for a plea indicated at the first stage of proceedings normally means at the first hearing at which a plea or indication of plea is sought and recorded by the court. Exceptions to this are set out in section F. Holroyde LJ recognised that the application of these exceptions in a particular case would be a fact-specific decision and a court making that decision, will be careful not to go beyond the limited terms of the exception. He observed that fairness to all defendants in all courts requires that exceptions should not be extended beyond their proper scope.
- The issue therefore is whether an unequivocal indication of a guilty plea was given at the first hearing. The sending sheet is blank as to plea against each of the three charges sent for trial at the direction of the magistrates, absent any indication that something has gone wrong in the recording, that is the answer - no unequivocal indication of a guilty plea was given at the first hearing.
- The procedure in the Magistrates' Court for either-way charges is as follows: the defendant must be present; the court must explain to him in ordinary language that he may indicate whether, if the offence were to proceed to trial, he would plead guilty or not guilty. The answer is recorded in respect of each offence. It follows that when the defendant was personally asked for his indication of plea in this case, he did not give an indication that he would plead guilty. This is why the magistrates committed the case for trial pursuant to section 51 of the Crime and Disorder Act 1988, rather than moving to the alternative process where a guilty plea is indicated, and the court must consider its own sentencing powers before, if appropriate, committing for sentence. These processes are summarised in flow diagrams attached to the guideline. The charts are not part of the guideline but they demonstrate the transparent approach upon which the guideline is predicated.
- In R v Dale [2022] EWCA Crim 207, to which Ms Kerr has directed our attention, although the appellant was sent to the Crown Court pursuant to section 51 of the Crime and Disorder Act 1988, a Better Case Management form had recorded on it:
"NI. Will be guilty on a basis. Cannot be considered by the CPS today. No funding for a trial of issue on committal for sentence."
Guilty pleas were entered at the PTPH and the sentencing judge allowed a 25 per cent discount from sentence rather than the third sought. On appeal, this Court proceeded on the basis that no indication of a guilty plea had been given by the appellant himself on what the solicitor had recorded on the Better Case Management form meant no indication of a guilty plea. Furthermore, the court drew a distinction between stating that there would be a guilty plea on a basis come what may and there would be a guilty plea on a basis if the basis were accepted. This was the latter and did not amount to an unequivocal indication of guilt so triggering the maximum discount. We should add that Ms Kerr relied on the Court's additional observation in that case that Class A drugs had been found in the boot of the appellant's vehicle and he was charged with intent to supply them. The case was therefore not complex and the evidence was fully and clearly summarised in the material available at the Magistrates' Court.
- While we appreciate that the full extent of the prosecution's case in the instant prosecution was not available to the defendant until after the sending, that is frequently the case. It is rightly to the credit of an accused person, if he is guilty and intends to plead guilty, if he does so before the whole of the case is served. If the position were to become established that unless the evidence is fully provided in summary at least, at the first stage when a plea is sought from an accused, then the maximum reduction will be available at some other stage. The guideline would be undermined. Different courts would reach different conclusions as to what is sufficient to satisfy the requirement and, to a significant degree, the incentive to enter early guilty pleas would be lost.
In addition, the basis for the charges here was entirely within the defendant's own knowledge, given the nature of the allegations he faced, a lack of detail and precision in the police summary did not undermine the particulars which were in easily comprehensible term. Furthermore, the desirability of formulating a basis of plea is not a justification for withholding an indication of a guilty plea. A plea of guilty is an admission to the offence charged, not necessarily to all the facts the prosecution seeks to rely on. There is no reason why an indication of a guilty plea cannot be given even if it is hoped and indeed expected that a basis of plea will assert a more limited culpability than appears in the allegation. In R v Whitty [2022] EWCA Crim 1100, the relevant form at the Magistrates' Court recorded:
"The defendant Thomas Whitty will be pleading guilty to this charge at the PTPH, by which time a basis of plea will have been prepared and uploaded to the DCS file."
The Court concluded that full credit should have been applied to the sentence after a guilty plea at the PTPH. The rationale was that this was an unequivocal indication of a guilty plea in the Magistrates' Court and the sentencing judge had been wrong to draw a distinction between a mere indication of a guilty plea and the tendering of a guilty plea, as long as the indication is firm and unambiguous.
- We have been asked to go behind the record from the section 51 Crime and Disorder Act sending and have regard to what has been provided subsequently by way of the letter from the defence solicitor to the court or from the Magistrates' Court attendance note. If an unequivocal indication of an intention to plead guilty had been given, then, whether the Magistrates' Court committed for sentence or for the trial, would not prevent the defendant from benefiting from the indication. The 26 February letter to the court does not state that there will be a guilty plea. It refers to optimism rather than certainty. Further back in time, the attendance and hearing notes are at best equivocal, including as they do, a reference to the defendant asserting he is not guilty, as well as the solicitor hoping to preserve credit by stating "there is likely to be some form of guilty plea". Those words "likely to be" are not unequivocal. So even if we proceed on the basis that they were said to the magistrates but not recorded either on the sending sheet or on a BCM form, they are insufficient to achieve that which Ms Kerr aims for.
- While we have regard to all this material, which could have been provided as part of the original application for leave to appeal, we do not find that it enables us to answer the central question in any other way than already determined. There was no unequivocal indication of a guilty plea at the first stage of the proceedings, and this is not a case that falls within the exceptions in section F. The appeal must be dismissed.
