Bermeo, R (on the application of) v Director of Public Prosecutions [2005] EWHC 2839 (Admin)

Case No CO/8342/05[2005] EWHC 2839 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 3rd November 2005
Strand
London WC2
B E F O R E:
LORD JUSTICE MAURICE KAY
MR JUSTICE PENRY-DAVEY
Between
The Queen on the application ofAppellantANDRES BERMEOAppellant-v-
Between
DIRECTOR OF PUBLIC PROSECUTIONSRespondent
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR SAHRAZ AZIZ (instructed by Sheikh & Co) appeared for APPELLANTMR IVAN CLARKE (instructed by the Crown Prosecution Service) appeared for RESPONDENT
J U D G M E N T
[1]MR JUSTICE PENRY-DAVEY: This is an appeal by way of case stated from a sentence imposed by His Honour Judge Simon Smith in the Crown Court at Middlesex Guildhall on 8th July 2005. The charge against the appellant was having in his possession a false instrument, contrary to section 5(1) and section 6 of the Forgery and Counterfeiting Act 1981.[2]On 25th May 2005 the appellant was stopped and arrested at Waterloo International Station before boarding a Eurostar train bound for Paris. He produced to the authorities a Spanish passport in the name of Francisco Garcia; and in interview he admitted presenting a false Spanish passport to the French police at Waterloo and further indicated that he had not used his genuine Ecuadorian passport.[3]On 26th May he appeared before the Horseferry Road Magistrates' Court, where he entered a plea of guilty. The Crown Prosecution Service representative indicated that the matter was too serious for the magistrates to deal with and that he should be committed to the Crown Court for sentence, bearing in mind the maximum sentence available of ten years' imprisonment. The appellant was committed for sentence to the Crown Court.[4]Because of delays in the production of a pre-sentence report, the matter only came before His Honour Judge Simon Smith at the Middlesex Guildhall on 8th July. The Crown's case was that the appellant had used the false passport to enter the United Kingdom from Spain; had been found with it and had fully admitted the offence in interview. The court was reminded that the maximum sentence was ten years and that recent case law indicated a sentence in the area of twelve to eighteen months' imprisonment.[5]The appellant was of previous good character and had had notice of deportation served on him.[6]On behalf of the appellant on that occasion it was accepted that there was no issue as to the way in which the prosecution case had been put, but it was submitted that, having regard to the case of R v Kolawole [2004] EWCA Crim 3047, the judge could consider a sentence of six to nine months' imprisonment although the usual sentence would be within the range of twelve to eighteen months, even on a plea of guilty for such an offence.[7]In sentencing, the judge pointed out that the appellant seemed to be a family man and a father with a prospect of making a settled home, but he said that the appellant had broken the law. It was serious. He had remained in the United Kingdom for some three years. The judge said that a sentence had to be passed which recognised the seriousness of the offence but did not involve prolonged detention in the United Kingdom, in the light of the expressed intention of the appellant that he would consent to being deported following the notice.[8]The sentence the judge imposed was one of 50 weeks, with a custodial period of eight weeks and the remainder to be served on licence. He recommended that the appellant be deported as soon as possible. That purported to be a sentence known as a Custody Plus Order imposed under section 181 of the Criminal Justice Act 2003. That section, however, was not at that time in force and is not yet in force. It follows that the judge had no power to impose the penalty which he sought to impose, and it is inevitable in those circumstances that this court quashes that sentence.[9]Before considering what sentence the court should now impose, I would like to make some remarks of a general nature about the situation that has arisen in this case. This court has said on a number of occasions in the past that in cases involving sentence the appropriate course is to proceed to the Court of Appeal, Criminal Division, rather than to the Divisional Court. Mr Aziz on behalf of the appellant has pointed out that in this case time had run out by the day on which it became apparent that the sentence was unlawful. But there is the facility of a request for an extension of time, and, if there is urgency in a sentence appeal steps can be taken for it to be brought on quickly, sometimes very quickly. That would have been the proper course in this case.[10]Secondly, I would like to say something about the course that events took in the Crown Court. That reflects little credit on anybody concerned save for the Prison Service, who, it appears, pointed out that the sentence imposed by the judge was unlawful. On the occasion of the first hearing in the Crown Court on 8th July the judge specifically asked prosecuting counsel, Mr Wauchope, whether he (the judge) was in any danger of passing an illegal sentence. Whilst Mr Wauchope failed to respond to that request, he stated that he was reading the section on licence conditions for the first time. Earlier Mr Aziz had told the judge, in answer to the judge's enquiry, that the case would come under the Criminal Justice Act 2003. Reference was made during the course of the hearing to paragraph 5-314 in the 2005 edition of Archbold, but it appears that nobody bothered to read to the end of the relevant passage, where the editor states in terms that section 181 comes into force on a date to be appointed. By the time the Prison Service had pointed out that the sentence was unlawful it was beyond the 28-day period in which it could be corrected in the Crown Court, and there has, in consequence, been this hearing, involving considerable expense and delay.[11]The exhortation by the Court of Appeal, Criminal Division, on many occasions that it is the duty of advocates to know what the sentencing powers of the court are in a particular case appears not to have had much, if any, effect in this case. Nobody knew and nobody bothered to check.[12]The situation was not significantly better on the second hearing, when the sentence was referred to as a Custody Minus sentence when it is a Custody Plus sentence. There is no doubt that the sentencing provisions of the 2003 Act are complex and they are new; but both Bar and Bench have undergone instructions on those new provisions, which appears to have achieved little in this case. We repeat that it is the advocate's duty to know what the powers of the court are in sentencing and to correct a judge if he or she gets it wrong.[13]I return to the question of what the court should do in the situation that has arisen. Mr Aziz invites us to amend the sentence rather than quashing it; and he refers us to section 28A of the Supreme Court Act 1981, which, relevantly, provides as follows:
"(1) This section applies where a case is stated for the opinion of the High Court--- ... (b) by the Crown Court under section 28(1) of this Act. ... (3) The High Court shall hear and determine the question arising on the case and shall--- (a) reverse, affirm or amend the determination in respect of which the case has been sent."
[14]There is, of course, the power to remit. It would also be open to us in this instance to reconstitute this court as a court of the Court of Appeal, Criminal Division. We have, however, come to the conclusion that the right course in the special circumstances of this case is to accede to the submission that Mr Aziz makes and to impose by way of amendment to the sentence imposed by the Crown Court a sentence of imprisonment of 50 weeks. I make clear that I am prepared to take that course in the light of the rather special circumstances of this case. The sentence that I would impose is, on the face of it, a lenient sentence for this type of offence, and in imposing such sentence I lay down no sort of principle of any kind. That is the sentence that I would impose in the light of the circumstances that have arisen in this case, when the appellant, it is clear, has spent a substantial time in custody - significantly longer than the judge intended that he should when imposing the unlawful sentence that he imposed. I would therefore amend the original order of the Crown Court and impose a sentence of immediate imprisonment of 50 weeks, which it appears that the appellant has almost served. To that extent I would accede to the applications made in this case.

LORD JUSTICE MAURICE KAY: I entirely agree. I wish to add simply brief observations in my own words in order to add emphasis to what my Lord has already said.

[16]The first is that, although this court has jurisdiction to entertain this appeal as it does not arise out of a trial on indictment, and although we have power to do what we propose to do by reason of section 28A(3)(a) of the Supreme Courts Act 1981, this is not the appropriate forum to deal with appeals against sentence from the Crown Court in the circumstances. The appropriate route is to appeal to the Court of Appeal, Criminal Division. Although it is said in this case it would have been out of time to pursue such an appeal when the illegality came to the notice of the appellant's legal advisers, that is not an answer, because I have no doubt that, if the appeal had been made to that court, it being made abundantly clear that this was a matter of an illegal sentence, time would have been extended and the appeal would have been heard expeditiously. That is the route which should have been pursued in this case. It is the route which should be pursued in future cases where the original sentence is said to be illegal or simply excessive. We have dealt with this case exceptionally because of the need to do so urgently having regard to the expected release date of the appellant, which is, we understand, only about ten days away.[17]Secondly, I wish to add my emphasis to what my Lord said about the duty of the advocate in the case and in similar cases to assist the sentencing judge. This is particularly important in the present circumstances when Criminal Justice Act type legislation arises with frequency and in bulk and with differential commencement dates for the myriad sections and Schedules that are contained in that kind of legislation. The judge in this case was seeking assistance. Even a cursory perusal of the current edition of Archbold ought to have made it clear to everyone that section 181 is not yet in force. At paragraph 5-314 in Archbold 2005 the words of the section are set out entirely in square brackets - a format which is usually adopted in relation to legislation not yet in force - and then in larger type there follow the words "this section comes into force on a date to be appointed". In all the circumstances I ally myself with what my Lord has said: this problem ought never to have arisen.[18]Thirdly, so far as the sentence which we now impose is concerned, it must be considered wholly exceptional arising in the unfortunate circumstances which we have related. That unfortunate history means that the appellant will have received a more lenient sentence than he should have received. We do not feel it would be right to substitute a longer sentence in the light of the history. This is a wholly exceptional case and it should not be treated by anyone as affecting the approach set out by the Court of Appeal in a judgment delivered by the Vice President in Kolawole [2004] EWCA Crim 3047.[19]It follows that the appeal is allowed, and, using our powers under section 28A, we amend the sentence that was passed in the Crown Court so that it becomes simply a sentence of 50 weeks' imprisonment taking effect from the time when the sentence was first imposed and of course any time previously spent in custody counting towards the sentence.