Nicholas, R (on the application of) v Chester Magistrates' Court

A sentencing indication by one magistrates’ bench may improperly fetter the discretion of the court which later sentences. Such an indication should generally be given only where the first bench reserves sentence to itself, or where it is absolutely obvious that a particular sentencing option must, or must not, be considered.

A legitimate expectation founded on an earlier indication will not justify judicial review where the indication was so unreasonable as to be perverse. The later sentencing court may promptly correct the position, ensure that all appropriate sentencing options are addressed, and sentence accordingly.

The claimant pleaded guilty to common assault after a group attack. A lay bench indicated that a high community penalty was appropriate and directed preparation of a pre-sentence report. The bench did not reserve sentence to itself.

A District Judge later considered that indication perverse, required an all-options report, and imposed a custodial sentence suspended on mitigation. He refused the claimant’s request to state a case on whether he had been entitled to rely on the earlier indication. The claimant sought judicial review in the Administrative Court.

The central issues were whether the indication was unlawful and whether the District Judge had been entitled to disregard it.

1. Claim refused. Although the District Judge had unfortunately described the request for a case to be stated as misconceived, the request raised a proper and intelligible question. The court nevertheless had sufficient evidence of the relevant facts and was able to determine the claim.
2. A magistrates’ bench which adjourns sentence for reports, without reserving sentence to itself, should not ordinarily indicate the type of sentence which the eventual sentencing court should impose. Such an indication fetters the later court’s discretion. It should be made only where the bench reserves sentence to itself, or where it is absolutely obvious that a particular sentencing option should or should not be considered.
3. The authorities, including ex parte White [2004] EWHC 417 (Admin) and Sumner [2005] EWHC 3166 (Admin), establish that judicial review will not lie on the basis of a legitimate expectation founded on an indication which was so unreasonable that no properly directed bench could have reached it.
4. On the facts, the indication of a solely community-based penalty was perverse. The seriousness of the group attack, the use of frightening masks, the delayed guilty plea, and the claimant’s recent custodial sentence and licence status made an all-options sentencing report appropriate. The District Judge acted properly in correcting the position promptly and ensuring that custody remained an available option.
5. The eventual suspension of the custodial sentence did not validate the earlier indication. The application for judicial review was therefore refused. The claimant was awarded assessment of his Legal Aid costs.

The judgment describes the procedural history before the Administrative Court:

• District Judge Sanders: refused the claimant’s request to state a case concerning the earlier sentencing indication.
• High Court (Administrative Court): held that the request to state a case was not misconceived but refused the claim for judicial review on its merits.