Lewis, R. v

A sentencing judge must not aggravate sentence by making findings that conflict with the proper effect of a jury’s acquittal. This is particularly so where the trial was conducted on a defined factual issue and the verdict must be understood in that context.

If the judge proposes to make disputed findings which materially increase sentence, the parties must have a fair opportunity to address them. A sentence founded on an inconsistent or unfairly reached factual assessment should be varied.

The appellant, a serving police officer, pleaded guilty at the Crown Court at Exeter to eight counts of misfeasance in public office. The offences involved misuse of his position and of police information in pursuing sexual activity with four women. He received a total sentence of four years’ imprisonment.

He had been acquitted of three rape counts concerning one complainant, R. In sentencing him for related misfeasance counts, the judge found that R had been at best reluctantly compliant and that the conduct had fallen little short of rape. The appeal concerned whether those findings were compatible with the jury’s verdict and fairly made.

1. The appeal was allowed to the stated extent. The court quashed the four-year sentences imposed on counts 4, 5 and 6 and substituted sentences of three years’ imprisonment on each count.
2. The trial of the rape allegations had proceeded on the basis that the use of handcuffs to overcome R’s unwillingness would determine whether the conduct was consensual. The defence had not advanced, and the jury had not been invited to consider, either that handcuffs were merely part of consensual activity or that the appellant might reasonably have believed that there was consent.
3. In that setting, the acquittals had to be understood as indicating that the sexual activity was consensual. The sentencing judge nevertheless rejected the appellant’s account, accepted R’s account of the handcuffs, and treated the conduct as nearly rape. Those findings were inconsistent with the jury’s approach to the issue.
4. The judge had also given no indication during mitigation that he intended to make findings of that kind. The court held that it was wrong to sentence on that mistaken factual basis. A three-year sentence for the relevant misfeasance counts was appropriate; no proper complaint arose concerning the concurrent two-year sentences for misuse of the police computer.

• Court of Appeal (Criminal Division) — by [2010] EWCA Crim 579, allowed the sentence appeal to the stated extent and replaced the four-year sentences on counts 4, 5 and 6 with three-year sentences.
• Crown Court at Exeter — on 13 October 2009, imposed a total sentence of four years’ imprisonment following guilty pleas to eight counts of misfeasance in public office.