Select Committee on Northern Ireland Affairs Written Evidence


23.  Written evidence from the Lord Chief Justice

SENTENCING IN ORGANISED CRIME CASES: SUBMISSION FROM THE LORD CHIEF JUSTICE'S OFFICE

  The Lord Chief Justice would like to thank you for your letter of 23 April setting out further details of the concerns expressed to the Committee.

  In his letter to the Committee of 6 April 2006 the Lord Chief Justice suggested that if he could be given specific details then he would seek to provide information. The points raised with the Committee, as reflected in your letter, are rather general and the Lord Chief Justice considers that it is difficult to respond to them. Nevertheless he hopes that it will be helpful to the Committee if he makes a number of comments on sentencing and organised crime and on one or two of the issues those you have met have raised with you about sentencing in this area.

  As you helpfully note, it is important to be mindful of the full circumstances of each case. For instance, does the defendant have previous convictions, what is his level of culpability, what are the recommendations of the Probation Service, what is the impact on the victims, the mitigating and aggravating features associated with the crime, congruence with sentencing guidelines and many other factors which judges are obliged by law to take into account.

  In addition, it has to be recognised that the outcome of a case may well be disappointing for one party or the other, and this can impact upon the parties' portrayal of it. Similarly, media reports of cases can create a misleading impression. What concerns the Lord Chief Justice and his fellow judges is that public comment on sentencing, or reporting of sentencing, often fails to recognise the difficult judgments judges have to make or the relevant factors they must weigh. The consequence of less than full reporting is an erosion of public confidence in the administration of criminal justice. The Lord Chief Justice would like to make it clear, however, that judges do not lay claim to infallibility. The difficulty for him as Lord Chief Justice, therefore, is to try to address the situation in the round; to give an overall view.

  Some comparative work on the sentencing outcomes in Northern Ireland and England and Wales has been undertaken and the Lord Chief Justice believes that the results of this have been made available to the Committee. Given the small number of "organised crime cases" passing through the courts here clearly the figures need to be treated with caution. Also, one or two exceptional cases can skew the results. Taking that caveat as read, the figures illustrate a not dissimilar picture in Northern Ireland and England and Wales for most of the offences. There is a discrepancy in the case of smuggling offences, however, it should be noted that in England and Wales a proportion of these convictions were for importing controlled substances—these convictions are likely to have raised the average sentence. In general terms, the figures for Crown Court convictions show that in 2003 (the last year for which statistics are available, though they are, therefore, somewhat dated), custodial sentences were imposed only slightly less often in Northern Ireland, and where custody was used here, the average sentence was slightly longer. The Lord Chief Justice acknowledges that the situation was less comparable on custodial sentences in 2002 and 2001 but the numbers receiving sentences (custodial and suspended) in NI are significantly higher in these years as well as 2003.

  Suspended sentences have been used significantly more often in Northern Ireland. It is important to recognise the seriousness of a suspended sentence—the offence must warrant the imposition of the period in custody, which can then be suspended only if there are circumstances which justify the suspension. This is a slightly different test than must be satisfied in England and Wales. Nevertheless, it is not an easy test to satisfy and a sentence will only be suspended after careful consideration of the circumstances. Community sentences are used less often in Northern Ireland.

  It is important to recognise that comparisons between England and Wales and Northern Ireland, while interesting and relevant, do not always paint the full picture. We do not slavishly follow England and Wales precedent here. The case last month of R v Quinn (2006) NICA illustrates the point. The Court of Appeal, in reviewing the authorities in England and Wales in cases where death had been caused by a single blow, declined to adopt the starting point of 12 months' imprisonment suggested by the Court of Appeal in that jurisdiction. The Northern Ireland Court of Appeal held that,

    "A more suitable starting point in Northern Ireland for this type of offence is two years and . . . this should rise, where there are significant aggravating factors, to six years".

  In setting this guideline, the Lord Chief Justice noted that:

    ". . . The courts must respond to this experience (of such cases) by the imposition of penalties not only for the purpose of deterrence but also to mark our society's abhorrence and rejection of the phenomenon and the devastation wrought on a victim's family."

  There may, therefore, on occasion, be circumstances in this jurisdiction to justify a different view of a particular type of offence than is taken in England and Wales.

  An additional point is illustrated by R v McAuley (2004) NICC. In this case the trial judge noted that the quantity of drugs which was described as a "very large consignment" in Northern Ireland was significantly less than the quantity that would attract that description in England and Wales.

  We also have different provisions in certain areas of the law which might make our approach different, for example the point made above about suspended sentences.

  It is also worth noting that the courts here, including the Court of Appeal, have made it clear repeatedly that to obtain the maximum discount the co-operation of the defendant immediately after arrest is required. Solicitors have been warned that if they advise their clients to remain silent that if they plead guilt later then they will not obtain as great a discount. (See for example Attorney General's Reference No1 of 2006 NICA4.)

   It is important to note when considering criticism of sentences that statutory procedures are in place, introduced by the Criminal Justice Act 1988, which allow a sentence passed in the Crown court to be challenged. As already mentioned, judges do not claim to be infallible and this route exists to deal with that. This provision enables the Attorney General to refer unduly lenient sentences to the Court Of Appeal. The provision can be used in all indictable and a range of other serious offences.

  Lord Lane set out the approach to the Act in Attorney General's Reference No4 of 1989 11 Cr App R(S) 517: "A sentence is unduly lenient where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate. In that connection, regard must of course be had to reported cases, and in particular to the guidance given by this Court from time to time in the so-called guideline cases."

  Also in Attorney General's Reference No5 of 1989 11 Cr App R(S) 489 he held that "Before the Court grants an application of this sort, it must be shown that there was some error of principle in the judge's sentence; that in the absence of the sentence being altered by the Court, public confidence would be damaged; and that the Court should only grant leave in exceptional circumstances, and not in borderline cases."

  Where appropriate, the Court of Appeal will vary the original sentence; and set down sentencing guidelines in suitable cases. As noted by Carswell LCJ in R v Murdock 2003 NICA 21, guidelines set the general level of sentence that will be appropriate, but allow flexibility to take account of the individual circumstances. They also allow for the fact that particular types of offence may have become more prevalent or be causing particular danger to the public, and thus warrant higher sentences.

  Judges generally set about the difficult task of sentencing with scrupulous care and only a very small percentage of the sentences handed down are appealed or referred. Indeed in 2005, out of over 1,000 cases dealt with, only six were referred by the Attorney General. (The figure for 2004 was nine.) Having checked the files from these 15 references it appears that perhaps five of these could have been concerned with organised crime. In one of the five, a blackmail case, the Court allowed the reference in another, a case of supplying drugs, it would have allowed it but for a technicality. In the case that was allowed the sentence of three years plus two on probation was increased to five plus two on probation.

  The Lord Chief Justice regards this as a reliable barometer of the adequacy of sentences imposed.

  A number of respondents to the Committee raised the issue of deterrent sentences. This is also something which has been recognised by the courts (for example, R v McAuley). It is, however, important to note that it is not the only consideration and the sentence imposed must be proportionate to the crime and judges must not be drawn into responding to newspaper headlines when undertaking the difficult task of sentencing.

  Whether special legislation should be introduced to provide for increased sentences for organised crime offences is ultimately a matter of policy for the government. The Lord Chief Justice does not regard this as necessary because he thinks that it is a factor which judges in Northern Ireland take into account when sentencing offenders. It is also addressed, at least implicitly, in the guidelines. For example, in relation to drugs offences it is clear that those involved in importing drugs will be more heavily sentenced that a wholesaler, who in turn will be more heavily sentenced than a lesser supplier (R v Hogg (1994) NI 258 and R v Murdock). At present sentences tend to be more severe where the offence is linked to a paramilitary organisation (see for example AG Reference No5 of 2004 (Potts) 2004 NICA 27).

  The Lord Chief Justice would also be concerned that there may be practical difficulties in drafting an adequate definition of "organised crime" while retaining sufficient flexibility to address widely differing circumstances. Defining the level of involvement an offender would be required to have in the actual organisation of the criminal activity in order to qualify for an enhanced sentence would be a particular issue. The question of whether paramilitary linked offences should be considered as a separate category would also need to be addressed.

  The Chief Constable and ACC Sheridan commented on bail being granted at lower courts, the implication apparently being that it was easier to secure bail there (see Q161). The Lord Chief Justice thinks that it is important to clarify that the same criteria will be used in considering a bail application at any level. Furthermore, the prosecuting authority will have an opportunity to make representations regardless of the level of court.

   It might perhaps be helpful to outline some of the legal principles that must be applied by the judges and magistrates in dealing with the matter of bail. Since the incorporation of the European Convention on Human Rights and Fundamental Freedoms into domestic law there is a presumption in favour of granting bail for a person awaiting trial (Wemhoff v Germany (1979-1980) 1EHRR 55 ECtHR) unless there are "relevant and sufficient" grounds to justify his or her continuing detention. These grounds are generally recognised in the jurisprudence of ECtHR as (i) a risk that the accused might not present himself for trial; (ii) a risk that witnesses might be intimidated; and (iii) a risk that further offences might be committed. Clearly the accused's record will be of particular relevance to the last of these criteria, but it is just one of the many factors to be considered. The strength of the evidence against the accused is also a relevant consideration but only in so far as it affects one of the stipulated reasons for refusing bail. The seriousness of the charge is specifically not a reason for refusing bail unless it can be linked to one of the three grounds outlined above. It is clear from Strasbourg case-law that, having identified the risks, a balancing exercise must be undertaken by the court, weighing these risks against the rights of the untried accused. Any decision to deny bail must be a proportionate response to established risks. It has been held that a generalised risk is not sufficient. The prosecuting authorities must establish that there is a specific risk arising from the individual circumstances of the particular case. Even where such a risk is established the judge may only deny bail where he is satisfied that conditions cannot be fashioned to deal with the risk.

  Finally, the Lord Chief Justice noted that some of the evidence presented by Mr Wilson of the Confederation of British Industry and Federation of Small Businesses referred to cases in which alleged offenders were not convicted because of a lack of evidence. Clearly this is an entirely separate matter. The difficulties in prosecutions for certain types of organised crime offences have been recognised and this would appear to be part of the reason for the expanding use of civil recovery procedures.

  I have attached brief summaries of the relevant points from the cases referred to above and others which illustrate the approach taken by the Court of Appeal to sentencing in cases linked to organised crime.

Simon Rogers

27 June 2006





 
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