Wilson v R (Rev 1)

Where a defendant freely elects, after full and balanced legal advice, not to give evidence at a Newton hearing, the sentencing judge may resolve factual disputes on the evidence and submissions available and need not accept the defence account.

The practical need to adduce evidence in support of a disputed basis of plea is context-specific. Existing evidence may contradict, explain or weaken the prosecution case without further defence evidence.

A finding of dangerousness requires an individual and reasoned assessment. The gravity of the offence does not automatically establish dangerousness, but sustained and important participation in exceptionally grave gang crime may justify a life sentence rather than the otherwise available indeterminate sentence.

The applicant pleaded guilty to conspiracies to possess firearms and to damage property, in each case with intent to endanger life. At Woolwich Crown Court, Henriques J imposed concurrent life sentences with a minimum term of 16 years less time spent in custody.

The Crown had rejected the applicant’s basis of plea. Although a Newton hearing was initially contemplated, he elected not to give evidence. He later alleged that this resulted from incomplete and unbalanced advice. He also contended that the life sentence and minimum term were wrong in principle or excessive.

Other conspirators’ sentencing appeals had previously been dismissed in Riley and Others [2012] EWCA Crim 2507. The central issues were whether the absence of a Newton hearing made the sentencing process unfair and whether the applicant had properly been found dangerous and sentenced to life imprisonment.

1. The renewed application was dismissed. The court rejected the applicant’s account and the evidence of his former solicitor where it conflicted with the contemporaneous documents and counsel’s evidence. It found that he had received full and accurate advice before signing the confirmation that he did not wish to give evidence at a Newton hearing. His decision was free and fully informed.

2. The court explained that the practical proposition drawn from R v Noonan [2010] 2 Cr App R (S) 35 was not an inflexible rule about legal advice. In many cases, a defendant whose factual assertions are disputed and met by identified prosecution evidence will need to give evidence if those assertions are to be accepted. Context remained critical, however, because material already before the court might contradict, explain or weaken the prosecution case without further defence evidence. On the facts found, the applicant had been given advice of that kind.

3. Having knowingly declined to give evidence, the applicant could not require the sentencing judge to accept the written defence submissions. The judge was entitled to assess the evidence heard at the retrial, the Crown and defence submissions, the applicant’s false evidence at the first trial, and his differing bases of plea. Those matters justified the finding that he had played an important facilitating role in the conspiracies.

4. The judge had made an individual and reasoned assessment of dangerousness. The court accepted that seriousness of offending cannot alone establish dangerousness, but held that the applicant’s repeated and significant participation in grave, organised gang crime demonstrated a high risk of serious harm. The later risk reports reinforced, rather than undermined, that conclusion.

5. A life sentence was an exceptional sentence when compared with imprisonment for public protection, but these exceptionally grave and terrifying offences fell within the category contemplated by Kehoe [2009] 1 Cr App R (S) 9. The life sentence and the minimum term of 16 years, less time spent in custody, were justified. The proposed second-stage Newton hearing and fresh-evidence application therefore fell away.

In an addendum, the court directed the Registrar to send the judgment to the relevant Law Society disciplinary authority for consideration of the former solicitor’s conduct.

• Court of Appeal (Criminal Division) — dismissed the renewed application for leave to appeal against sentence.
• Woolwich Crown Court — Henriques J imposed concurrent life sentences on 16 March 2012, with a minimum term of 16 years less time spent in custody.