Director of Public Prosecutions v North Durham Justices

Challenges to magistrates’ decisions to retain sentencing jurisdiction should succeed only in exceptional cases. The decision must be irrational, perverse or truly astonishing; mere surprise, or the fact that another court might have reached a different conclusion, is insufficient. Sentencing discretion is not lightly interfered with.

Judicial review must also be claimed promptly. The three-month period is a maximum, not an entitlement to delay. Particular promptitude is required where a young defendant awaits sentence and third parties or the administration of justice may suffer prejudice.

The Director of Public Prosecutions sought judicial review of the North Durham Justices’ decision to retain jurisdiction to sentence an 18-year-old defendant who had pleaded guilty, under the Plea Before Venue procedure, to inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861.

The assault caused the victim to lose his spleen. The Director contended that the facts required committal to the Crown Court because a custodial sentence exceeding the magistrates’ powers was appropriate. The application was filed about ten weeks after the jurisdiction decision. The issues were whether retaining jurisdiction was truly astonishing and whether the application had been brought promptly.

1. Application dismissed. The Justices’ decision to retain jurisdiction was reasonable and proper. It was not irrational, perverse or truly astonishing.
2. Magistrates generally retain a discretion as to the appropriate sentence in the individual case. Challenges to their assumption of sentencing jurisdiction are rare and the discretion is not lightly disturbed. A decision is not reviewable merely because it surprises the reviewing court or because few other justices might have reached the same conclusion.
3. The relevant threshold is materially more extreme than undue leniency under section 36 of the Criminal Justice Act 1988. The court accepted the approach in Director of Public Prosecutions v Salisbury Justices, including the need to respect a reasonable response to special circumstances.
4. The circumstances provided an arguable basis for a non-custodial sentence. Relevant considerations included the defendant’s age, good character, remorse, relationship with the victim, the absence of previous offending, the alcohol-related context and the favourable pre-sentence report. The seriousness of the injury and the features identified in the sentencing guidance did not make the decision truly astonishing.
5. The application was also out of time in the practical sense required by judicial review. The rule requiring a claim within three months imposes a maximum period, not a right to wait. Where a young defendant is awaiting sentence, and delay may cause hardship or prejudice good administration, the claim should be made within days rather than weeks.
6. The delay had postponed sentencing for about six months after the guilty plea and would itself provide additional mitigation. Both the merits and the lack of promptness justified refusal of the application.

Permission for judicial review was granted on paper by a single judge. The Divisional Court then heard and dismissed the application.