Attorney General's Reference No. 115 and 116 OF 2004

A sentencing court must assess sentence on an accepted basis of plea, even where it prompts serious concern. Prosecutors and judges should scrutinise written bases of plea carefully before accepting them. On an Attorney General’s sentence reference, a sentence that is plainly lenient need not be increased where the double-jeopardy principle, applied in light of that agreed basis, makes an increase inappropriate. Non-guideline sentencing decisions are fact-specific indicators only and do not set a general tariff.

At Woolwich Crown Court, Hiscock and Coombes pleaded guilty to possessing cannabis with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act 1971. Police had found 120 kilograms of cannabis in a van driven by Hiscock, with Coombes driving a second vehicle.

The offenders had initially denied a conspiracy charge. They later pleaded guilty on an agreed basis that they had been paid £400 each for a single delivery, had no continuing role or financial interest, and did not know the precise quantity or value of the drugs. Judge Carroll imposed two years’ imprisonment on each offender.

The Attorney General referred the sentences under section 36 of the Criminal Justice Act 1988, contending that they were unduly lenient. The central issue was whether the sentences should be increased despite the agreed basis of plea and the double-jeopardy principle.

1. Disposition. The court granted leave but dismissed the Attorney General’s reference. Although the sentences were undoubtedly lenient for an offence involving 120 kilograms of cannabis, it would not be appropriate to increase them.
2. The agreed basis of plea. The sentencing exercise had to proceed on the basis accepted by the Crown. On that basis, the offenders’ involvement was confined to one delivery for a very small payment. They had no stated role in the onward sale of the drugs and did not know their precise quantity or value. Their good character and personal mitigation also required consideration.
3. Scrutiny of plea agreements. The court expressed serious concern about the realism of the agreed basis. It appeared surprising that persons trusted with drugs of such value had so little knowledge of their source or destination and were paid so little. Subject to the information available to the prosecution, the court nevertheless had to assume that counsel had been justified in accepting it. The later guidance in Underwood reinforced the need for counsel and judges to scrutinise written bases of plea with great care.
4. Sentencing authorities. Earlier sentencing decisions, unless expressed as guidelines, provide only an indication of the sentence appropriate to their own offender and facts. They do not create a general sentencing tariff.
5. Double jeopardy. Allowing for the double-jeopardy principle, and particularly for the agreed basis on which the offenders had been sentenced, an increase was inappropriate. The reference was therefore dismissed.

• Court of Appeal (Criminal Division) On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court granted leave but dismissed the reference: [2004] EWCA Crim 3487.
• Woolwich Crown Court On 3 September 2004, Judge Carroll sentenced each offender to two years’ imprisonment after guilty pleas to possession of cannabis with intent to supply.