Fawthrop, R v

A judge must not induce a guilty plea by giving an unsolicited assurance of leniency. The safeguards in R v Goodyear [2005] 2 Cr App R 20 protect the voluntariness of a plea and require a defence-initiated, properly authorised request for any sentencing indication.

When sentencing racially or religiously aggravated harassment, the court should assess culpability and harm, identify the sentence for the corresponding non-aggravated offence, and then reflect the additional seriousness of racial or religious aggravation. That aggravation affects both the victims and society. A sentence may be unduly lenient, yet remain unaltered in the exceptional circumstances where the judge's improper indication materially induced the guilty plea.

The Attorney General referred, under section 36 of the Criminal Justice Act 1988, a sentence imposed at Bradford Crown Court on 3 April 2017. Gemma Fawthrop had pleaded guilty to racially aggravated pursuit of a course of conduct which put another in fear of violence, contrary to section 32(1)(b) of the Crime and Disorder Act 1998.

The offending comprised a prolonged campaign of racial abuse, threats and harassment against neighbouring victims. The Crown Court imposed a 12-month community order with a 15-day rehabilitation requirement. The guilty plea followed an unsolicited judicial indication, given after a not guilty plea, that an immediate custodial sentence would not follow a guilty plea.

The central issues were whether the sentence was unduly lenient and whether the circumstances in which the plea was obtained justified leaving it undisturbed.

1. The reference was allowed, but the sentence was not varied. The court gave leave to refer and held that the low-level community sentence was unduly lenient in view of the nature, duration and seriousness of the offending. It nevertheless declined to interfere in the unusual circumstances of the case.
2. The plea process was improper. A judge should not initiate a process designed to obtain a guilty plea by offering leniency. The procedure in R v Goodyear [2005] 2 Cr App R 20 requires the initiative to come from the defence, written authority from the defendant, advocacy safeguards concerning guilt and the Attorney General's reference jurisdiction, and an agreed written basis of plea. Those protections were absent. The process also deprived the defence of the opportunity to state the basis on which the plea was entered.
3. The sentencing approach required an assessment of culpability and harm. Relevant matters included compliance with court orders, the seriousness and number of incidents, use of others, mental health, the impact upon victims, and persistence. The court should then identify the sentence for the corresponding offence under section 4 of the Protection from Harassment Act 1997, absent racial or religious aggravation.
4. Racial or religious aggravation required a meaningful increase in seriousness. The aggravated offence under section 32(1)(b) of the Crime and Disorder Act 1998 carries a higher maximum sentence than the non-aggravated offence. The aggravation affects victims and the social fabric of society: see R v Beglin [2002] EWCA Crim 1887.
5. Exceptional mitigation justified leaving the order in place. The offender had acted on the judge's improper assurance, contrary to her earlier inclination to contest the charge, and had substantial personal mitigation. Those circumstances justified declining to alter the sentence despite its undue leniency.

• Court of Appeal (Criminal Division): On the Attorney General's reference under section 36 of the Criminal Justice Act 1988, the court held the sentence unduly lenient but left it undisturbed.
• Crown Court at Bradford: On 3 April 2017, imposed a 12-month community order with a 15-day rehabilitation requirement following a guilty plea.