Barnard v Director of Public Prosecutions

In a Crown Court appeal by way of rehearing, a tribunal determining guilt should not read a pre-sentence report before hearing the evidence. Such reports are prepared on the assumption of guilt and may contain inadmissible opinion, hearsay and bad-character material. A judge also has no power to elicit potential bad-character evidence where the statutory and procedural conditions, including notice, have not been met. A quiet demeanour while giving evidence, without evidence of an underlying vulnerability, does not establish particular vulnerability for sentencing purposes. Procedural errors must be assessed cumulatively where their combination creates unfairness or an appearance of prejudgment.

The appellant appealed by way of case stated under section 28 of the Senior Courts Act 1981 against the Crown Court’s dismissal of his appeal from conviction and sentence for common assault. The Crown Court had read a pre-sentence report before rehearing the conviction issue, questioned the complainant about possible previous violence despite no bad-character application, treated her as particularly vulnerable because of her quiet demeanour, and imposed two months’ immediate custody.

The Divisional Court considered whether those matters constituted errors of law or procedure and whether the conviction and sentence could stand.

1. Pre-sentence report. The Crown Court appeal was by way of rehearing, so the prosecution had to prove the case again. A pre-sentence report assumes guilt and may contain inadmissible opinion, hearsay and bad-character material. Where a judge sits with lay magistrates as the tribunal of fact, the report should not be read until the trial has ended in a guilty verdict and the court is considering sentence. The risk of increased sentence can be explained without reading the report. The report’s contents were prejudicial, or at least appeared prejudicial.
2. Bad-character evidence. The criminal process remained adversarial despite the court’s case-management powers. The judge had no power to require an answer about previous conduct where the evidence could be admitted only subject to the conditions in the Criminal Justice Act 2003 and the applicable rules, including notice to the defendant. The question was therefore procedurally impermissible. Although the answer produced no actual bad-character evidence, the error had to be considered cumulatively with the premature reading of the report.
3. Vulnerability. For the sentencing aggravating factor of particular vulnerability, more was required than a quiet demeanour while giving evidence. The relevant guidelines indicated factors such as age, disability, pregnancy, isolation, or circumstances making it difficult to leave a violent relationship. No such evidential basis was established.
4. Sentence. The threshold for declaring a sentence unlawful as outside the permissible sentencing discretion was high. The court nevertheless stated that, had the issue arisen, the sentence would have been unlawful because it relied partly on the erroneous finding of vulnerability and on an unsupported assessment in the report. This conclusion was obiter because the conviction was quashed.
5. Disposition. The appeal was allowed and the conviction was quashed. No additional restraining order was made in circumstances where family-court occupation and non-molestation orders were said to be in force.

• High Court (Administrative Court): allowed the appeal by way of case stated from the Crown Court at Isleworth and quashed the conviction.
• Crown Court at Isleworth: on 25 October 2010 dismissed the appellant’s appeal against conviction and sentence by the Uxbridge Magistrates’ Court.
• Uxbridge Magistrates’ Court: convicted the appellant of common assault and imposed a community order, supervision, compensation, costs and a restraining order.