London Criminal Courts Solicitors Association. Response to the Sentencing Advisory Panel Consultation Paper on Bail Act Offences

Transcription

1 London Criminal Courts Solicitors Association Response to the Sentencing Advisory Panel Consultation Paper on Bail Act Offences 1

2 The London Criminal Courts Solicitors Association (LCCSA) represents the interests of specialist criminal lawyers in the London area. Founded in 1948, it now has over 1000 members including lawyers in private practice, Crown prosecutors, freelance advocates and many honorary members who are circuit and district judges. The objectives of the LCCSA are to encourage and maintain the highest standards of advocacy and practice in the criminal courts in and around London, to participate in discussions on developments in the criminal process, to represent and further the interest of the members on any matters which may affect solicitors who practice in the criminal courts and to improve, develop and maintain the education and knowledge of those actively concerned with the criminal courts including those who are in the course of their training. Any questions in relation to this response should be referred to either: Tom Epps (Chair of Law Reform) Russell Jones & Walker Grays Inn Road London WC1X 8NH Tel Fax OR Margaret Gordon Christian Khan Solicitors 42 Museum Street London WC1A 1LY Tel Fax

3 The following members of the Association s Law Reform Sub-Committee assisted with this response: Hilary Bradfield -The Crown Prosecution Service Margaret Gordon Christian Khan solicitors All members of the sub-committee participated as individual members of the LCCSA and the views expressed do not necessarily reflect those of their firms or organisations. 3

4 CONSULTATION PAPER ON BAIL ACT OFFENCES Overall we would welcome guidelines for sentencing on Bail Act Offences as these will help to end the considerable discrepancies between different courts in sentencing practices for these offences and will encourage more certainty and transparency in sentencing. Question 1 The panel believes that the primary objective in imposing sentence for a Bail Act offence should be punishment of the individual offender. Do you agree? Bearing in mind that the act of failure to attend which attracts a charge is a deliberate or at least negligent flouting of the law and as regards court bail a contempt of court, the main objective on sentencing should be one of punishment. Question 2 The panel considers that when sentencing for a Bail Act offence there is also an element of seeking to ensure a higher level of compliance in general and to increase public confidence in the CJS. Do you agree? We agree that there should be a deterrent part to the sentencing decision, failure to sentence accordingly allows others to either feel that it does not matter if they come or not and the public with the feeling that the courts do not take such matters seriously. This will potentially undermine confidence in the CJS. However for a deterrent to be effective it must be sufficiently publicised and potential offenders must be given clear 4

5 information by all participants in the criminal justice system of the consequences of failing to surrender. Question 3 Failure to surrender to bail causes delay to the administration of justice, undermines public confidence in the court system and causes distress to individual victims and witnesses. Do you agree with the Panel s comments in relation to the harm caused by Bail Act offences? Are there any other issues to be considered? We agree that the main harm caused by failure to surrender is the delay, distress to victims and witnesses and the undermining of public confidence. Whatever the degree of harm caused, it is inevitable that both the prosecutor and defence lawyer will have prepared for the court hearing, the amount of preparation depending on the type of hearing anticipated. The police additionally may have had to make specific arrangements for a trial e.g. hiring specialist equipment, or bring substantial quantities of exhibits to court. Question 4 Do you agree that the approach to sentence should be the same whether: (a) the failure to surrender is to a police station or to a court and (b) the offence is contrary to section 6(1) or section 6(2)? We agree that there is no difference with a failure to answer police bail or court bail, but feel that there may be some difference between section 6(1) and Section 6(2). E.g. if a defendant is on his way to court and falls off the bus outside the court building and is taken to hospital, which would be a reasonable excuse, and thereafter does not come to court until he is reminded by his solicitor some days later, although the harm caused will 5

6 be the same as if he just failed to attend, it clearly cannot be dealt with in the same way as a deliberate flouting. Question 5 Do you agree that the approach to sentence for Bail Act offences should be based on the impact of the failure to attend and the culpability of the offender? We agree that it should be based on both. Question 6 Which factor should carry the greater weight for sentencing purposes, the culpability of the offender or the impact of the failure to attend? Neither should carry greater weight. For example if a suspect is bailed to return to the police station on a Murder charge and fails to attend because his wife was delivered of a premature baby on the appointed day and then subsequently puts it off for several weeks whilst everything settled down, the harm factor may well be high, but conceivably the culpability may be low. On the other hand a defendant may be charged with a minor offence and is bailed to appear at the Magistrates court on the first hearing date and deliberately fails to attend to inconvenience the court, the harm factor is low but the culpability is high. To ensure fairness sentencing should be balancing act between the two. Question 7 Do you agree with the aggravating/mitigating factors mentioned above? Are there others? 6

7 We do agree with the aggravating/mitigating factors suggested. Question 8 When sentencing for a Bail Act offence, do you consider that the chaotic or disorganised lifestyle of the offender should be regarded as i) a mitigating factor ii) personal mitigation iii) should be neutral except in certain defined circumstances? A chaotic lifestyle should not be a mitigating factor. There should be room to advance this as personal mitigation. It would potentially make the offence negligent rather than deliberate. Question 9 The panel understand that Bail Act offences tried in the Crown Court are normally sentenced on the first occasion that the offender appears and that sentences are generally longer than they were prior to the Practice Direction. Is this your experience? Do you have any comments on such an approach? We agree that a defendant should be sentenced at the first possible opportunity in the majority of cases. The sentence for a Bail Act offence should not be affected by the outcome of the trial for the principal offence. It is a completely different and separate offence. Question 10 In what circumstances would you delay sentencing for the Bail Act offence until sentence is imposed for the principal offence? In the main there are no supportable reasons why sentence should be delayed for the Bail Act offence. The court should proceed to sentence and if once all the facts and mitigation had been heard, it could not realistically impose sentence then it could be 7

8 deferred until sentence takes place for the principal offence. An example would be if a PSR (which would not be available until the conclusion of the case) would explain certain aspects of the mitigation for the bail act offence. Question 11 To what extent, if any, should the seriousness of the principal offence influence the approach to sentence for any failure to surrender to custody? On the basis that the Bail Act offence is a completely independent offence and should be treated as such, then the seriousness of the principal offence should not influence the sentence for the failure to surrender. However we are concerned about unnecessarily criminalising a person who perhaps fails to surrender through ignorance or bad advice, whose principal offence is later discontinued, and who subsequently receives a substantial penalty or even custody. Question 12 In what circumstances is it legitimate to impose a custodial sentence for failure to surrender to custody where there is no prospect of such a penalty being imposed for the principal offence? It is not wrong in principle to impose a custodial sentence for the breach but not on the principal offence. The breach of bail in itself may be extremely serious and the culpability of the defendant high, whilst the principal offence could be quite minor. However the criminalising affect of sending a defendant to prison in these circumstances, especially if they have not been to prison before, is a concern and this outcome should be unusual. Question 13 8

9 In what circumstances might a fine be appropriate? A fine may be appropriate in the circumstances outlined in our answer to question 4, and for a first offence. It is more likely to be appropriate in a Section 6(2) case. Question 14 In what circumstances might a community order be appropriate? A community penalty generally requires the defendant to be present and willing to do something. The essence of most Bail Act offences is that he was not. However general sentencing principles should apply. Question 15 Since a Bail Act offence is prosecuted and sentenced as an offence in its own right, and is of a different nature (and occurred at a different time) from the principal offence, normal sentencing practice would suggest that, if a custodial sentence is imposed for both the Bail Act offence and the principal offence the two sentences should be served consecutively. Are there any circumstances in which the sentences should be served concurrently? Where a defendant is sentenced with the principal offence for whatever reason and that sentence is substantial, say life imprisonment it would not in our opinion be seen to be realistic to add a further one or two months consecutively for the Bail Act offence. It should not be served concurrently as a mitigating factor. Question 16 Bearing in mind the level of harm resulting from the defendant s failure to appear may be reduced by proceeding with the trial in his absence, should this have any impact on the sentence passed for the failure to appear? 9

10 Bearing in mind that we have suggested that the defendant s culpability and the harm caused should be balanced according to whether it was high or low, it follows that a reduction in the level of harm caused, by whatever means, would have to be taken into consideration on sentence. However should a defendant who fails to appear benefit from the fact that his particular case can be dealt with in absence when others cannot? 10