K, R (on the application of) v Newport Crown Court & Anor

Judicial review of a sentence requires a high threshold. The review is distinct from an ordinary sentence appeal on the merits. Where the reasons and information available disclose no rational basis for a marked disparity between sentences imposed on comparable offenders, the decision may be quashed. Sentencing courts should have complete and up-to-date information, including relevant pre-sentence reports, and should give clear reasons for materially different sentences. Where delay and custody make an urgent rehearing unjust, the reviewing court may substitute a sentence in the interests of justice, while making clear that the substituted sentence is not guidance on the appropriate sentence for the offence.

The claimant, aged 16, received a total sentence of 16 months for breach of an antisocial behaviour order and theft. The magistrates imposed 12 months for the breach and four months for theft. A co-defendant, A, received four months for a breach of the same order, although the available material indicated that A had previously breached an interim order on four occasions.

The Newport Crown Court dismissed the claimant’s sentence appeal. Its reasons did not explain the disparity or show what information had been considered. The claimant sought judicial review, contending that the disparity was irrational under the principles summarised in R v Director of Public Prosecutions ex parte McGeary and R (Sogbesan) v Inner London Crown Court.

1. The claim succeeded. The applicable judicial-review threshold was high and differed from the merits-based approach of the Court of Appeal Criminal Division. On the information before the court, it was impossible to discern a rational basis for the marked disparity between the claimant’s sentence and A’s sentence. The decision of the Newport Crown Court was therefore quashed.
2. The sentencing material was inadequate. In a case involving a lengthy custodial sentence imposed on a young person, and materially different sentences imposed on offenders dealt with together, the court should have all relevant and up-to-date information. This included information about the breach, the circumstances in which it occurred, and A’s pre-sentence report, even if that report could not be disclosed to the claimant.
3. Both the magistrates and the Crown Court should have given clear reasons explaining the disparity. The courts were also required to have regard to totality, particularly because the sentence imposed on a 16-year-old was substantial.
4. Ordinarily, the matter would have been remitted to the Crown Court for an urgent rehearing. The claimant had, however, already been in custody since 28 April and had served the equivalent of the 12-month detention and training order. In light of the delay and the interests of justice, the court substituted a total sentence of 12 months: eight months for breach of the antisocial behaviour order and four months for theft.
5. The substituted sentence was imposed solely because of the delay and the claimant’s custody. It was not an indication of the appropriate sentence for breach of an antisocial behaviour order.

• Newport Crown Court: dismissed the claimant’s appeal against sentence on 18 June 2004.
• High Court (Administrative Court): quashed the Crown Court’s decision and substituted a total sentence of 12 months.