Thornton v Crown Prosecution Service

A sentencing indication given before a pre-sentence report must be made with proper and reasonable regard to applicable definitive sentencing guidelines. An indication that is unreasonable, or that results from failing to have proper regard to the guidelines, may be incapable of creating a legitimate expectation. It may also provide sufficient reason for a later sentencing court to depart from it. Whether a legitimate expectation arises, and whether departure is justified, depends on the circumstances. A court should avoid fettering the discretion of the later sentencing court by indicating sentence unless it reserves sentence to itself or the appropriate course is absolutely clear.

The appellants pleaded guilty before a lay bench to offences under section 4 of the Public Order Act 1986. The bench indicated that a medium community penalty was appropriate and adjourned for pre-sentence reports. A differently constituted court, District Judge Wright, considered that the offending was substantially more serious, particularly because it involved a group attack on one victim and, in Mr Thornton’s case, was committed while he was on licence for a previous custodial sentence. She imposed suspended custodial sentences.

The appellants challenged the sentences by Case Stated. The questions concerned legitimate expectation, the effect of the statutory duty to have regard to sentencing guidelines, and whether the district judge was entitled to depart from the earlier indication.

1. Appeal dismissed. The magistrates’ indication was unreasonable and did not bind District Judge Wright.
2. Section 172(1)(b) of the Criminal Justice Act 2003 applies when magistrates indicate a possible sentence while ordering a pre-sentence report or otherwise deferring sentence. They must have proper and reasonable regard to relevant definitive sentencing guidelines. Section 174(2)(a), concerning reasons for imposing a sentence outside the guideline range, applies to the sentence itself and not to the earlier indication.
3. The principle in R v Nottingham Magistrates’ Court ex parte Paul Davidson [1999] EWHC Admin 426; [2001] Criminal Appeal Reports (S) 167 is subject to the qualification that a later court may depart from an indication where there are reasons justifying departure. An indication founded on a decision so unreasonable that no properly directed bench could have reached it may fail to create a legitimate expectation.
4. The magistrates failed to assess the seriousness properly. They should have considered the level of actual violence, the group attack on a single victim late at night outside licensed premises, and, in Mr Thornton’s case, the commission of the offence during the unexpired part of a previous custodial sentence. The offending fell within the highest guideline category, for which the starting point was 12 weeks’ custody. Mitigating factors did not justify reducing it to a medium community penalty.
5. The court endorsed the guidance in Nicholas v Chester Magistrates’ Court [2009] EWHC 1504 that a bench should not ordinarily indicate the type of sentence where it is not retaining sentence. Forms and explanations should make clear whether an assessment is merely for probation purposes, so that defendants do not reasonably understand it as a sentencing indication.

• High Court (Administrative Court): appeal by Case Stated dismissed. The court held that District Judge Wright was entitled to depart from the earlier sentencing indication.