R v Bishop

When sentencing a sole carer, a court must give the consequences of imprisonment for the children proper prominence under Article 8 of the European Convention on Human Rights. It must balance those consequences against the seriousness of the offending. If the available material does not permit that exercise, the court must obtain further information.

Children do not provide a licence to offend or prevent a custodial sentence where custody is otherwise justified. Their welfare may nevertheless justify suspending an appropriate custodial term where separation would cause serious practical harm.

The appellant pleaded guilty in the Crown Court at Nottingham to burglary and dangerous driving. He received consecutive terms of four months’ imprisonment, making eight months in total, together with a driving disqualification.

He appealed against sentence. The principal ground was that the sentencing judge had insufficiently investigated and considered the consequences of immediate custody for his five children, for whom he was said to provide weekday care. The issue was whether the sentences should instead be suspended.

1. The appeal was allowed. The court substituted suspended sentences for the two consecutive terms of four months’ imprisonment. Each sentence remained consecutive, but was suspended for two years.
2. A sentencing court must place at the forefront of its consideration the consequences for children when their sole carer may be imprisoned. Consistently with Article 8 of the European Convention on Human Rights, it must balance those consequences against the seriousness of the offending. If it lacks sufficient information to perform that balance, it must seek further information.
3. The sentencing judge should have made further inquiries. Although the pre-sentence report and counsel alerted the judge to the children’s circumstances, the judge was not informed of, and did not investigate, the proposed care arrangements if the appellant lost his liberty. The subsequent evidence showed that those arrangements were highly unsatisfactory and imposed a substantial burden on the appellant’s sister and former partner.
4. Immediate imprisonment and an overall term of eight months were otherwise justified by the planned burglary, the dangerous driving while escaping police, and the appellant’s record. Children cannot provide offenders with immunity from custody. Nevertheless, the children’s circumstances made suspension of the custodial terms appropriate.
5. The suspended sentence orders included a 12-month supervision requirement, completion of a Thinking Skills Programme, and a three-month nightly curfew. The court’s provisional view was that time already served should be taken into account if a future court activated the suspended sentences, rather than by reducing the eight-month term immediately.

• Court of Appeal (Criminal Division)—Allowed the appeal against sentence and suspended the consecutive terms: [2011] EWCA Crim 1446.
• Crown Court at Nottingham—Imposed consecutive terms of four months’ imprisonment for burglary and dangerous driving, with a driving disqualification.