Flaherty, R (on the application of) v Stoke-On-Trent Magistrates' Court

An adjournment for a sentencing assessment may create a legitimate expectation that the recommended non-custodial sentence will be imposed, particularly where the court reserves the case to itself. The expectation is avoided where the defendant is clearly told that all sentencing options remain open. The principle does not apply where the circumstances could not reasonably generate an expectation of a non-custodial sentence, or where the court acted under a relevant misapprehension of fact. Clear, prescribed wording should be used and recorded when sentencing is adjourned.

The claimant pleaded guilty to two charges of handling stolen goods and one charge of affray. After an adjournment for a pre-sentence report, District Judge Richards adjourned the case for assessment for a drug treatment and testing order and reserved sentence to himself. District Judge Harte later committed the claimant to the Crown Court for sentence because of the seriousness of the offences and his previous record.

The claimant sought judicial review, arguing that the earlier adjournment and reservation had created a legitimate expectation that he would receive a drug treatment and testing order if the assessment was favourable. The central issue was whether that expectation arose despite the dispute about what the district judge had said.

1. The challenge succeeded. The order committing the claimant to the Crown Court for sentence was quashed. The case was remitted to the justices with a view to making a drug treatment and testing order, provided that the claimant remained eligible and the sentence remained available.
2. The authorities beginning with Gillam established that postponing sentence to investigate a non-custodial alternative may create an expectation that the alternative will be adopted if the assessment is favourable. That principle had been developed in Chamberlain and extended to magistrates’ courts in Rennes.
3. The expectation may be displaced where the defendant is clearly told that all sentencing options remain open. It does not arise where nobody present could reasonably have expected a non-custodial sentence, as illustrated by R v Horton and Alexander. A further exception applies where the court creating the expectation acted under a relevant factual misapprehension, as identified in White v Barking Magistrates’ Court.
4. Although the factual dispute about the words used by District Judge Richards could not be resolved, no clear wording had been used to state that all sentencing options remained open. His reservation of the case to himself was significant. In the circumstances, the rational explanation was that he contemplated making the recommended order if the assessment proved favourable. The claimant therefore had a legitimate expectation that a drug treatment and testing order would be considered on that basis.
5. Courts should avoid such disputes by using prescribed words automatically when adjourning sentence and recording them on the court file.

An order for costs from Central Funds was made.

The judgment does not state a prior appellate decision. The claim concerned the decision of District Judge Harte at Stoke-on-Trent Magistrates’ Court.