Bowers & Ors, R. v

Sentencing discussions and any indication of sentence must ordinarily be conducted openly, with both parties informed. Private communications are permissible only where genuinely necessary. A defendant who knowingly acts on an informal and irregular indication, while aware that it may not be confirmed or enforceable, has no legitimate expectation that it will bind the sentencing judge.

Separate, sophisticated and planned offences may properly attract consecutive sentences. The sentencing court must apply totality, but a severe aggregate sentence is not manifestly excessive where it reflects distinct criminal ventures and each offender’s role.

Five appellants were sentenced in the Crown Court at Southwark for their roles in a series of conspiracies to obtain goods and cash by deception, and to handle stolen goods. The offences involved the planned acquisition of container loads of goods and £1.1 million in cash.

Anthony and Martin Bowers contended that, before their guilty pleas, court staff had conveyed an informal indication that the maximum total sentence would be seven years. All appellants challenged their sentences as manifestly excessive, principally because consecutive terms had produced high aggregate sentences.

The central issues were whether the informal indication could be relied on and whether the sentences offended the principle of totality.

1. The appeals were dismissed. The alleged informal sentencing indication did not require the court to reduce Anthony or Martin Bowers’s sentences.

2. Justice must ordinarily be administered in public. Discussions about pleas or sentence should therefore take place in open court, save in exceptional circumstances. Any communication between a party and the court must also be disclosed to the other party. The court approved the warnings in Harper-Taylor and Bakker (1988) NLJ 80 and Warth (1991) 12 Cr App (S) 680, and followed the principles in Turner [1970] 2 QB 321.

3. The communications said to have been made through court staff were highly irregular. Defence counsel should have informed the prosecution and raised the matter immediately in open court. Although counsel acted in good faith, their failure to do so was an error.

4. The Bowers appellants had been advised that the supposed indication was informal, irregular and difficult to enforce on appeal. They therefore knowingly accepted the risk that it might not be honoured. They had no legitimate expectation, or legitimate sense of grievance, capable of requiring the court to substitute the suggested seven-year sentence. This was unlike Terrence Carl Smith (1989) 90 Cr App R 413, where the defendant had been misled into believing that the judge had given an undertaking.

5. Nor did the circumstances require intervention to preserve public confidence in justice. They differed materially from Bird (1977) 67 Cr App R 203. It was unnecessary to determine precisely what the judge had said to the court staff or to seek his oral evidence.

6. The individual sentences reflected the scale, planning and professional nature of the offending. The offences were separate and discrete criminal ventures, not a single episode. Consecutive sentences were therefore justified, with totality reflected in the length of the individual terms. Although severe and towards the upper end of the appropriate range, none of the aggregate sentences was manifestly excessive.

• Court of Appeal (Criminal Division): By [2006] EWCA Crim 1433, dismissed the appellants’ sentence appeals.
• Crown Court at Southwark: On 15 October 2004, HH Judge Elwen imposed consecutive sentences for the separate conspiracies.