Howell, R. v

An offence of perverting the course of justice will ordinarily require an immediate custodial sentence. A suspended sentence requires sufficient exceptional reasons. The sentencing court must identify those reasons.

In deciding whether suspension is justified, the court may consider the gravity of the underlying offence, the persistence and consequences of the false account, and the available mitigation. Later remorse, caring responsibilities and a low risk of reoffending will not necessarily amount to exceptional circumstances. Where no sufficient exceptional reasons exist, suspension of a custodial term may render the overall sentence unduly lenient.

The Solicitor General applied under section 36 of the Criminal Justice Act 1988 for leave to refer Anthony Howell’s sentence as unduly lenient.

Following a jury trial in the Crown Court at Kingston, Howell was convicted of causing death by careless driving and of doing an act tending and intended to pervert the course of public justice. He received consecutive suspended sentences totalling ten months’ imprisonment, together with unpaid work, rehabilitation and curfew requirements.

The reference concerned whether the overall sentence, particularly its suspension despite the deliberate and repeated false account to police after a fatal collision, was unduly lenient.

1. The reference was allowed. The overall sentence was unduly lenient. The court substituted a total of 16 months’ immediate imprisonment, comprising eight months for causing death by careless driving and a consecutive eight months for perverting the course of justice.

2. Perverting the course of justice ordinarily attracts immediate custody unless exceptional circumstances justify a different course. The court applied the principle stated in Attorney General's Reference No 35 of 2009 [2010] 1 Cr App R(S) 61 and reiterated in R v Cronin [2017] EWCA Crim 1357. The public interest normally lies in immediate custody for such offending.

3. The false account was deliberate, was repeated to police, and was intended to conceal responsibility after a collision that caused a pedestrian’s death. Applying the factors identified in R v Tunney [2007] 1 Cr App R(S) 91, the underlying offence was serious and the deception was persistent. Although the attempt did not divert suspicion or implicate an innocent person, it was a bad case of its kind.

4. The trial judge gave no sufficient reasons for treating the case as exceptional. The offender’s later remorse, caring responsibilities, low risk of reoffending and compliance with the suspended-sentence requirements did not justify retaining suspension. Those matters did, however, mitigate the substituted total sentence.

5. The driving disqualification was adjusted under sections 35A and 35B of the Road Traffic Offenders Act 1988 so that it remained five years in practical effect. The victim surcharge was increased from £100 to £140.

• Court of Appeal (Criminal Division): On the Solicitor General’s reference under section 36 of the Criminal Justice Act 1988, the court allowed the reference and replaced the suspended total sentence with 16 months’ immediate imprisonment: [2018] EWCA Crim 328.
• Crown Court at Kingston: Following trial, Howell was convicted of causing death by careless driving and perverting the course of public justice. He received consecutive suspended sentences of six and four months, with ancillary requirements and a five-year driving disqualification.