Attorney General's Reference No 17 of 2008

For perverting the course of justice, immediate imprisonment is ordinarily required. A suspended sentence will be appropriate only in the most exceptional case.

A sustained and deliberate scheme to evade detection for serious motoring offending, including the use of false identities to avoid disqualification, calls for immediate custody despite substantial personal mitigation. In an unduly lenient sentence reference, the court may substantially reduce the custodial term to reflect rehabilitation, completed community punishment, and the double-jeopardy consequences of replacing a non-custodial sentence with imprisonment. Where avoiding disqualification was an object of the offending, a driving disqualification is also warranted.

The offender committed six offences of perverting the course of justice by using false identities to conceal his ownership and use of six motorcycles. Over 17 months, the motorcycles were recorded speeding on 66 occasions, often while he was disqualified from driving. The scheme was designed to prevent his identification and to avoid the consequences of the underlying offences.

At the Crown Court at Luton, the offender received six consecutive one-month terms of imprisonment, suspended for 18 months, with 200 hours of unpaid work. The Solicitor General sought leave under Criminal Justice Act 1988, section 36, to refer the sentence as unduly lenient. The central issue was whether the substantial personal mitigation could justify the suspended sentence and absence of a driving disqualification.

1. The court granted leave and varied the sentence. The original suspended sentence was unduly lenient. The offender was sentenced to six months’ imprisonment on each count, concurrent and to be served immediately, and was disqualified from holding or obtaining a driving licence for 12 months on each count, also concurrent.

2. Perverting the course of justice normally requires immediate custody. Only the most exceptional cases can justify avoiding it. This offending was serious and persistent. For 17 months, the offender deliberately used false identities and varied his clothing to evade identification for repeated speeding offences. The scheme enabled him to avoid the punishment and disqualification that the underlying offending would otherwise have attracted. Its disregard for road safety and authority made immediate imprisonment unavoidable.

3. Absent personal mitigation, the conduct justified at least 18 months’ immediate imprisonment after credit for guilty pleas. The court nevertheless gave substantial weight to the offender’s difficult background, his changed circumstances, stable relationship and employment, and his absence of further offending.

4. The court also took account of the 75 hours of unpaid work already completed and the double-jeopardy effect of imposing custody after the original non-custodial sentence. Those matters, together with the strain caused by the reference, justified reducing the effective sentence to six months as an act of mercy. They did not justify suspension.

5. Disqualification was necessary because avoiding it had been a central object of the deception. Employment consequences justified limiting, but not withholding, the order.

• Court of Appeal (Criminal Division): On the Solicitor General’s reference under section 36 of the Criminal Justice Act 1988, the court granted leave, held the sentence unduly lenient, and substituted immediate concurrent sentences of six months’ imprisonment with concurrent 12-month driving disqualifications.

• Crown Court at Luton: On 14 March 2008, the offender received one month’s imprisonment on each of six counts, ordered consecutively but suspended for 18 months, together with 200 hours’ unpaid work. No citation is stated in the judgment.