R v Martin John Cooper

An agreed basis of plea, signed by both parties and accepted by the sentencing judge, fixes the facts on which an Attorney General’s reference must be determined. The Court of Appeal will not investigate unproved allegations or sentence an offender for matters neither admitted nor proved.

Where two offences each fall within the same sentencing category, concurrent sentences may still require an uplift for the second offence and other aggravating features. A sentence may cross the custodial threshold yet properly be suspended. Immediate custody is not inevitable in domestic abuse cases; the court must apply the relevant guideline and assess the offender’s current risk, rehabilitation, personal circumstances and the practical effect of sentence.

R v Martin John Cooper concerned an Attorney General’s reference of an allegedly unduly lenient sentence under section 36 of the Criminal Justice Act 1988.

At Stafford Crown Court, the offender pleaded guilty to two counts of controlling or coercive behaviour contrary to section 76 of the Serious Crime Act 2015. The counts concerned conduct during an intimate relationship. The parties agreed an amended basis of plea. On 20 September 2024, the judge imposed an 18-month community order with unpaid work, rehabilitation activity and a Building Better Relationships requirement.

The Solicitor General contended that the judge should have gone behind the basis of plea, imposed a higher sentence, and ordered immediate custody. The central issues were the binding effect of the agreed basis of plea, the proper sentence, and whether any custodial term should be suspended.

1. The court granted leave for the reference and held that the original community order was unduly lenient. A sentence of 15 months’ imprisonment, suspended for 18 months with the existing requirements, was the proper sentence. The court nevertheless exercised its discretion not to increase the sentence and left the community order in place.

2. The first ground failed. Applying R v Underwood and others [2004] EWCA Crim 2256, once a basis of plea has been signed by the prosecution and defence and accepted by the judge, it is not permissible to go behind it. The agreed document was understood to be comprehensive of the admitted criminality. A reference must proceed on facts proved or admitted; the Court of Appeal does not conduct a first-instance inquiry into allegations not pursued or proved in the Crown Court.

3. Each count was a category 1B offence with a one-year starting point. Although concurrent sentences were appropriate, the second count and the identified aggravating features required an uplift. Mitigation included three years without further offending and the earlier offer of guilty pleas. The usual 25 per cent reduction for plea had to be reduced because the basis of plea remained disputed and the case was listed for trial.

4. The custodial threshold was crossed. However, the relevant guideline did not require immediate custody merely because the offending involved domestic abuse. The risk could be managed by the existing requirements, and the offender’s three years without further offending, renewed contact with his children, and progress on probation supported suspension. R v Katira [2020] EWCA Crim 89 was confined to its particular facts.

• Court of Appeal (Criminal Division): On an Attorney General’s reference, the court held that the community order was unduly lenient but, in exercise of its discretion, did not increase it: [2024] EWCA Crim 1512.
• Crown Court at Stafford: On 20 September 2024, imposed an 18-month community order for two offences of controlling or coercive behaviour.