C, R (on the application of) v Crown Prosecution Service

A sentencing indication may create a legitimate expectation where it is sufficiently clear and unqualified. The indication is ordinarily binding on the court’s conscience unless departure is justified because it was perverse, unlawful, or failed to take account of relevant sentencing considerations. The same bench should normally pass sentence after giving the indication. A later judge should not simply substitute a different view on the merits. For an offender under 18, youth sentencing guidance must be considered, including age, maturity and rehabilitation. A custodial option cannot be excluded merely because a community sentence is contemplated.

The claimant, aged 17 when sentenced, pleaded guilty to assault occasioning actual bodily harm and using threatening words or behaviour. Lay magistrates viewed CCTV footage and indicated that a pre-sentence report should consider a high-level community penalty. The report therefore excluded custody.

A District Judge later held that the restriction was perverse and ordered an all-options report, including custody. The claimant sought judicial review, alleging breach of legitimate expectation. The central issues were whether the magistrates had given a sufficiently unqualified indication and whether their approach to the facts and sentencing guidance was irrational or unlawful.

1. Claim dismissed. The indication was sufficiently clear to found a legitimate expectation. The pre-sentence report recorded the restriction in clear terms, and the District Judge had proceeded on the basis that the report had been limited accordingly.
2. An indication by one sentencing bench binds the conscience of the court unless it was perverse or unlawful, or there was another sufficient reason for departure. The same bench should normally pass sentence after giving the indication. It is wrong for a different judge to disregard the indication merely because he disagrees with its merits. The principles in R v Gillam [1980] 2 Cr App R (S) 267, Nicholas v Chester Magistrates' Court [2009] EWHC 1504 (Admin) and Thornton v the Crown Prosecution Service [2010] 2 Cr App R (S) 65 were considered in that context.
3. The magistrates’ assessment of the CCTV footage was perverse. The material feature was the claimant’s return to the shop armed with a stepladder, followed by his attack on the shopkeeper from behind. The shopkeeper’s conduct in ejecting the youths could not rationally be treated as significant provocation, although it was a factor which could be considered.
4. The magistrates had also failed to pay proper attention to relevant sentencing guidance. The adult assault guideline was not directly applicable to a defendant under 18, but the youth guidelines required consideration of age, maturity, rehabilitation and an appropriate sentencing framework. Those considerations did not permit custody to be excluded from the options requiring examination.
5. The claim was not dismissed as premature. The court declined to establish general rules on prematurity because the issue depended on the facts. On the merits, however, the claim failed. The claimant was granted detailed assessment of his publicly funded costs.

The judgment describes an earlier sentencing indication by lay magistrates and a subsequent decision by a District Judge at Stratford Youth Court. No citation for those decisions is stated. The Administrative Court dismissed the judicial review claim on its merits.