Attorney General Reference No 31 of 2006

Where a disputed basis of plea could materially affect sentence, the prosecution must make the discrepancy clear to the sentencing court. The court must then resolve the dispute by a Newton hearing, unless the defendant withdraws the basis or makes an appropriate concession.

Absent such a finding or concession, the offender must be sentenced on the tendered basis of plea. This is especially important where consent or belief as to age may substantially affect the appropriate sentence for an offence under the Sexual Offences Act 2003.

The offender pleaded guilty at Ipswich Crown Court to intentionally penetrating a child under 13, contrary to section 5(1) of the Sexual Offences Act 2003. He advanced a written basis of plea asserting that the sexual activity was consensual and that he believed the complainant, aged 12, was an adult.

The prosecution stated that it did not accept the basis but did not seek to dispute it. No Newton hearing was held. The sentencing judge made remarks which appeared inconsistent with the basis on age and were unclear on consent, before imposing two years’ imprisonment.

The Attorney General sought leave to refer the sentence as unduly lenient. The central issue was whether the sentencing process had properly resolved factual disputes material to sentence.

1. Leave to refer the sentence was refused. The court held that the sentencing process had been fundamentally flawed. Consent and the offender’s belief, or reasonable belief, as to the complainant’s age were matters capable of having a major effect on sentence.

2. The prosecution’s position created a material discrepancy. Its letter said that it did not accept the basis of plea but would not dispute it, although the complainant’s account differed on consent. If the prosecution accepted that account, the letter should not have been written in those terms. Prosecuting counsel should have made the position clear when sentencing began and invited a Newton hearing, or the judge should at least have established whether the defence still maintained the basis.

3. The court regarded the procedure as inconsistent with the Attorney General’s Guidelines on acceptance of pleas. Where an unagreed basis of plea could significantly affect sentence, both advocates must alert the court to the discrepancy and to the need to consider a hearing to resolve it.

4. In the absence of a finding at a Newton hearing that the basis was incorrect, or a concession that it was no longer maintained, the judge had to sentence on the written basis tendered by the offender. The Attorney General did not seek to contend that a two-year sentence was unduly lenient even on that basis. The court therefore refused leave and expressed the hope that the failure would not recur.

• Court of Appeal (Criminal Division): On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, refused leave to refer the sentence as unduly lenient: [2006] EWCA Crim 1040.
• Ipswich Crown Court: Following a guilty plea, imposed two years’ imprisonment on 20 February 2006.