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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