R v Rogers

*481 Regina v Rogers (Georgina) 

Practice Note 

Regina v Tapecrown Ltd 

Regina v Beaman (Paul) 

Court of Appeal 

1 July 2016 

[2016] EWCA Crim 801 

[2017] 1 W.L.R. 481 

Lord Thomas of Cwmgiedd CJ , Hallett LJ , Andrews J 

2016 May 5; July 1 

Crime‚ÄĒSentence‚ÄĒAppeals against sentence‚ÄĒAppellant seeking to adduce fresh evidence on appeal‚ÄĒGuidance on application of statutory conditions‚ÄĒExceptions where formal procedure for admission of fresh evidence not followed‚ÄĒ Criminal Appeal Act 1968 (c 19), s 23 (as amended by Criminal Appeal Act 1995 (c 35), ss 4(1), 29, Sch 2, para 4(3), Sch 3 )¬†

Crime‚ÄĒSentence‚ÄĒPractice‚ÄĒDefendant pleading guilty to offence for which sentence mandatory‚ÄĒDefendant submitting exceptional circumstances justifying reduction in sentence‚ÄĒProper procedure before sentencing judge‚ÄĒWhether Newton hearing appropriate¬†

The general principles which apply in relation to the admission, pursuant to section 23 of the Criminal Appeal Act 19681 , of fresh evidence in appeals against conviction will generally apply also in appeals against sentence, so that the decision whether to admit fresh evidence will usually be case- and fact-specific. The discretion is wide and will focus on the interests of justice. In sentence appeals the court will scrutinise intensely any application to give a factual explanation which was not before the sentencing court. The terms of the Criminal Practice Direction make clear the procedure which should be followed in relation to establishing the factual basis for sentencing. It is therefore the duty of all advocates to deploy before the sentencing judge all the evidence, information and other material on which they seek to rely (post, paras 4‚Äď7).¬†

Dicta of Lord Bingham of Cornhill CJ in R v Jones (Steven) [1997] 1 Cr App R 86 , 93, CA and of Lord Judge CJ in R v Erskine [2010] 1 WLR 183 , para 39, CA applied. 

R v Thames Water Utilities Ltd (Practice Note) [2015] 1 WLR 4411 , CA considered. 

In certain strictly limited circumstances the court will receive updated information about the offender which was not before the trial judge, such as updated pre-sentence reports, prison reports on conduct in prison after sentence, information that the prisoner has provided considerable assistance to the police, and updated texts. In such cases the formal procedures for the admission of fresh evidence are not followed and the Court of Appeal (Criminal Division) simply considers the evidence before it. However the exception does not apply to fresh psychiatric or psychological evidence in support of an argument that a finding of dangerousness ought not to have been made or a hospital order should have been made; in such a case the court will apply the provisions of section 23 , which is necessary because (i) it is incumbent on those acting for the defendant to call all the evidence before the sentencing court, so that persuasive evidence is required to explain why it was not all called; and (ii) the court must consider whether it is in the interests of justice that it should be admitted notwithstanding that failure. If the advocate representing the applicant before the court did not represent the applicant at the trial or sentencing hearing, that advocate *482 must obtain information from the advocate previously instructed as to why the evidence was not called (post, paras 8‚Äď9).¬†

Dictum of Sir Igor Judge P in In re Caines (Practice Note) [2007] 1 WLR 1109 , para 44, CA and R v Beesley [2012] 1 Cr App R (S) 15 , CA applied. 

Where a defendant has pleaded guilty to an offence for which the sentence is mandatory and he wishes to submit that there are exceptional circumstances which justify a lesser sentence, the procedure before the sentencing judge should follow that of a Newton hearing. If such a hearing takes place the judge must determine the matters to the criminal standard of proof and the burden is on the Crown to disprove the defendant’s account of the circumstances of the offence. If the Crown fails to do so, the judge must proceed on the basis the defendant’s version is correct. It does not, however, follow that the judge, even if he accepts the defendant’s version of events, will find that it amounts to exceptional circumstances. The hurdle for the defendant, in establishing exceptional circumstances, remains high. (post, para 121).¬†

R v Newton (1982) 77 Cr App R 13 , CA, R v Lashari [2011] 1 Cr App R (S) 72 , CA, R v McCarthy [2013] EWCA Crim 2500 , CA and R v McCleary [2014] EWCA Crim 302 , CA applied. 

The following cases are referred to in the judgment of the court: 

Caines, In re (Practice Note) [2006] EWCA Crim 2915; [2007] 1 WLR 1109; [2007] 2 All ER 584 , CA 

R v A [1999] 1 Cr App R (S) 52 , CA 

R v AXN (Practice Note) [2016] EWCA Crim 590; [2016] 1 WLR 4006 , CA 

R v Avis [1998] 1 Cr App R 420 , CA 

R v Beesley [2011] EWCA Crim 1021; [2012] 1 Cr App R (S) 15 , CA 

R v Erskine [2009] EWCA Crim 1425; [2010] 1 WLR 183; [2010] 1 All ER 1196; [2009] 2 Cr App R 29 , CA 

R v Guppy (1994) 16 Cr App R (S) 25 , CA 

R v Hughes [2009] EWCA Crim 841; [2010] 1 Cr App R (S) 25 , CA 

R v Hughes [2010] EWCA Crim 1026; [2010] MHLR 188 , CA 

R v Jones (Steven) [1997] 1 Cr App R 86 , CA 

R v Lashari [2010] EWCA Crim 1504; [2011] 1 Cr App R (S) 72 , CA 

R v McCarthy [2013] EWCA Crim 2500 , CA 

R v McCleary [2014] EWCA Crim 302 , CA 

R v Malook (Sadakat) (Practice Note) [2011] EWCA Crim 254; [2012] 1 WLR 633; [2011] 3 All ER 373 , CA 

R v Newton (1982) 77 Cr App R 13 , CA 

R v Rehman (Zakir) [2005] EWCA Crim 2056; [2006] 1 Cr App R (S) 77 , CA 

Page 3 

R v Roberts (Mark) [2016] EWCA Crim 71; [2016] 1 WLR 3249 , CA 

R v Thames Water Utilities Ltd (Practice Note) [2015] EWCA Crim 960; [2015] 1 WLR 4411; [2016] 3 All ER 919 , CA 

R v Vowles [2015] EWCA Crim 45; [2015] 1 WLR 5131 , CA 

R v Withers [2015] EWCA Crim 132; [2015] 1 Cr App R (S) 64 , CA 

R v Zhekov [2013] EWCA Crim 1656; [2014] 1 Cr App R (S) 69 , CA 

No additional cases were cited in argument. 

Regina v Rogers (Georgina) 

APPEAL against sentence 

On 7 November 2014 in the Crown Court at Wood Green, before Judge Lyons, the defendant, Georgina Rogers, pleaded guilty to being the owner of a dog which caused injury while dangerously out of control in a public place, contrary to section 3 of the Dangerous Dogs Act 1991 , and to being the owner of a dog dangerously out of control. On 16 June 2015 she was sentenced by Mr Recorder Etherington QC to a community order with an unpaid work requirement of 175 hours. A destruction order was made under section 4 of the 1991 Act in respect of a dog called Bailey and a contingent destruction order, under section 4A of the 1991 Act (inserted by section 2 of the Dangerous Dogs (Amendment) Act 1997 ), was made in respect of a dog called Socks. 

*483 

The defendant applied for permission to appeal against the destruction order on the basis of fresh evidence. Her application was referred to the full court by the single judge. The court granted the application for permission to appeal. 

Regina v Tapecrown Ltd 

APPLICATION for permission to appeal against sentence 

On 6 March 2015 in the Crown Court at Oxford, before Judge Eccles QC, the defendant company pleaded guilty to four counts of knowingly causing or permitting the operation of a regulated facility and one count of operating a regulated facility at the site without a permit, contrary to regulations 12 and 38(1)(a)(b) of the Environmental Permitting (England and Wales) Regulations 2010 (SI 2010/675). On 24 September 2015 the company was made subject to a remediation order under regulation 44 of the 2010 Regulations, requiring the company to remove illegal waste from its land. On 17 November 2015 the company’s application for an extension of time for compliance with the remediation order was refused by Judge Ross.¬†

The defendant company applied for permission to appeal against the remediation order and against the refusal of an extension of time for compliance with the order, and for permission to adduce fresh evidence. 

Regina v Beaman (Paul) 

APPEAL against sentence 

On 13 October 2014 in the Crown Court at St Albans, before Judge Warner, the defendant, Paul Beaman, pleaded guilty to possession of a controlled class C drug (diazepam), contrary to section 5(2) of the Misuse of Drugs Act 1971 (count 1), and to possession of a disguised firearm, contrary to 

section 5(1A)(a) of the Firearms Act 1968 (inserted by regulation 3(1) of the Firearms (Amendment) Regulations 1992 ) (count 2). On 17 November 2014 he was sentenced by Judge Griffith to 28 days’ imprisonment on count 1 and a concurrent term of five years’ imprisonment on count 2.¬†

The defendant applied for an extension of time for appealing and for permission to appeal against sentence on the grounds that the imposition of the mandatory minimum sentence for the firearm offence was manifestly excessive. The court granted the applications. 

On 5 May 2016 the court allowed the appeal, quashed the sentence on count 2 and substituted a sentence of 21‚ĀĄ2 years’ imprisonment, for reasons to be given later.¬†

The facts are stated in the judgment of the court. 

Pamela Rose (who did not appear below) (assigned by the Registrar of Criminal Appeals) for the defendant in the first case. 

Paul Wakerley (who did not appear below) (assigned by the Registrar of Criminal Appeals) for the defendant in the third case. 

Timothy Cray and Lee Ingham (instructed by Crown Prosecution Service, Appeals Unit ) for the Crown in the first and third cases. 

Sinclair Cramsie (instructed directly) for the defendant in the second case. 

Christopher Badger (instructed by Solicitor, Environment Agency ) for the Environment Agency in the second case. 

The court took time for consideration. 

1 July 2016. LORD THOMAS OF CWMGIEDD CJ. 

This is the judgment of the court to which we have all contributed. 

1 These three appeals were heard together as they gave rise to general questions as to the circumstances in which section 23 of the Criminal Appeal Act 1968 applies to fresh evidence or other information which an appellant may seek to adduce before this court on an appeal against sentence. 

*484 

The general principles 

Section 23 of the Criminal Appeal Act 1968 

2 As was made clear in the judgment of Lord Bingham of Cornhill CJ in R v A [1999] 1 Cr App R (S) 52 , 56 the Court of Appeal (Criminal Division) is, in relation to sentencing, a court of review. Its function is to review sentences passed below and not to conduct a sentencing hearing. 

3 However, it is clear that section 23 of the 1968 Act (as amended) permits the court to receive fresh evidence on appeal against sentence (as that term is defined in section 50 of the Act), provided the conditions set out in the section are met. 

‚Äú(1) For the purposes of an appeal under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice‚ÄĒ (a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to them necessary for the determination of the case; (b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the court, whether or not he was called in those proceedings; and (c) receive any evidence which was not adduced in the proceedings from which the appeal lies.¬†

‚Äú(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to‚ÄĒ (a) whether the evidence appears to the court to be capable of belief; (b) whether it appears to the court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal;¬†

and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings. 

“(3) Subsection (1)(c) above applies to any evidence of a witness (including the appellant) who is competent but not compellable. 

‚Äú(4) For the purposes of an appeal under this Part of this Act, the Court of Appeal may, if they think it necessary or expedient in the interests of justice, order the examination of any witness whose attendance might be required under subsection (1)(b) above to be conducted, in manner provided by rules of court, before any judge or officer of the court or other person appointed by the court for the purpose, and allow the admission of any depositions so taken as evidence before the court.‚Ä̬†

4 There are circumstances, to which we refer at paras 8‚Äď10, where the court will consider updates to information placed before the sentencing judge without the conditions in section 23 being applied, but otherwise section 23 of the 1968 Act is by its express terms of general application to all sentencing appeals.¬†

5 In approaching section 23 of the 1968 Act, a court must always have in mind the observations of Lord Judge CJ in R v Erskine [2010] 1 WLR 183 , para 39: 

‚ÄúVirtually by definition, the decision whether to admit fresh evidence is case- and fact-specific. The discretion to receive fresh evidence is a wide one focussing on the interests of justice. The considerations listed in subsection (2)(a) to (d) are neither exhaustive nor conclusive, but they require specific attention. The fact that the issue to which the fresh evidence relates was not raised at trial does not automatically preclude its reception. However it is well understood that, save exceptionally, if the defendant is allowed to advance on appeal a defence and/or evidence which could and should have been but were not put before the jury, our trial process would be subverted. Therefore if they were not deployed when they were available to be deployed, or the issues could have been but were not raised at trial, it is clear from the statutory structure, as explained in the authorities, that unless a reasonable and persuasive explanation for one or other of these omissions is offered, it is highly unlikely that the ‚Äėinterests of justice‚Äô test will be satisfied.‚Ä̬†

6 Thus the general principles in relation to the admission of fresh evidence in appeals against conviction will generally apply. In the context of one of the appeals before us (Georgina Rogers), where expert evidence was adduced before the *485 sentencing judge as to whether a dog was dangerous, the principles set out by Lord Bingham CJ in R v Jones (Steven) [1997] 1 Cr App R 86 , 93 apply: 

‚ÄúExpert witnesses, although inevitably varying in standing and experience, are interchangeable in a way in which factual witnesses are not. It would clearly subvert the trial process if a defendant, convicted at trial, were to be generally free to mount on appeal an expert case which, if sound, could and should have been advanced before the jury. If it is said that the only expert witness in an established field whose opinion supports a certain defence was unavailable to testify at the trial, that may be thought (save in unusual circumstances) to reflect on the acceptability of that opinion.‚Ä̬†

7 In sentencing appeals the court will scrutinise intensely any application to give a factual explanation that was not before the sentencing court. The terms of the Criminal Practice Direction make clear the procedure which should be followed in relation to establishing the factual basis for sentencing: see R v Thames Water Utilities Ltd [2015] 1 WLR 4411 , paras 8‚Äď12 and 24‚Äď25. It is therefore the duty of all advocates to deploy before the sentencing judge all the evidence, information and other material on which they seek to rely.¬†

The exception: the receipt of updated information 

8 The circumstances in which the court will receive updated information not before the trial judge were described by Sir Igor Judge P in In re Caines (Practice Note) [2007] 1 WLR 1109 , para 44:

‚ÄúFrom time to time, the court will be provided with updated information about the offender. This sometimes takes the form of prison reports, sometimes confidential information from the police. The sources vary. The information may serve to show, for example, that the prisoner has provided considerable assistance to the police; sometimes aspects of the mitigation are significantly underlined in a way which may not have been as clear or emphatic in the Crown Court; sometimes the information may indicate that the offender has made significant progress since the sentence began, a feature particularly relevant in cases involving young offenders. The formal procedures for the admission of fresh evidence are not followed. This court simply considers the evidence before it. So, for example, if a young offender has responded positively to his custodial sentence, and his progress is such that it may be counter-productive for him to serve the sentence actually imposed, it may be reduced on appeal, or changed to a non-custodial disposal, without any implied criticism of the decision of the Crown Court. In short, post-sentence information may impact on and produce a reduction in sentence (for a recent example of post-sentence evidence bearing on and explaining aspects of mitigation, with a consequent reduction in the minimum term following conviction for murder, see R v Sampson [2006] EWCA Crim 2669 ).‚Ä̬†

9 As was explained in R v Beesley [2012] 1 Cr App R (S) 15 , paras 33‚Äď36, the exception is strictly limited. It will include updated pre-sentence and prison reports on conduct in prison after sentence, but not fresh psychiatric or psychological evidence in support of an argument that a finding of dangerousness ought not to have been made or a hospital order should have been made. In such a case, the court will apply the provisions of section 23 : see R v Hughes [2010] 1 Cr App R (S) 25 and [2010] MHLR 188 and R v Vowles [2015] 1 WLR 5131 , paras 3‚Äď4. Compliance with section 23 is necessary for two reasons. First, because it is incumbent on those acting for the defendant to call all the evidence before the sentencing court, persuasive evidence is required to explain why it was not all called. Second, the court must consider whether it is in the interests of justice that it should be admitted notwithstanding that failure. If the advocate representing the applicant before this court did not represent the applicant at the trial or sentencing hearing, that advocate must obtain information from the advocate previously instructed as to why the evidence was not called: see R v Roberts (Mark) [2016] 1 WLR 3249 , para 40.¬†

*486 

10 Another limited exception is an updated text, but the circumstances in which this exception will apply are likely to be highly unusual for the reasons explained in R v AXN [2016] 1 WLR 4006 . 

The conduct of a Newton hearing in this court 

11 In the third appeal before us (Beaman) we were invited to conduct in this court a Newton hearing ( R v Newton (1982) 77 Cr App R 13 ) or a hearing analogous to that. In R v Guppy (1994) 16 Cr App R (S) 25 , this court conducted such a hearing in a case where the defendant wished to rely on certain alleged facts solely by way of disputed matters of mitigation. In such circumstances it was held that the evidential burden lay on the defendant to establish those facts on the balance of probabilities. In R v Malook (Sadakat) (Practice Note) [2012] 1 WLR 633 , this court considered reviewing the findings made by the judge in a Newton hearing on the basis of fresh evidence before the court, as the court had no power to remit the matter to the Crown Court. It is not necessary to consider the position further, as it is clear that there is no basis for such a hearing in this court in the appeal in Beaman: see para 126 below. 

[In paras 12‚Äď56 the court considered and dismissed the appeal of Georgina Rogers against a destruction order relating to her dog, Bailey. In paras 57‚Äď105 the court considered and refused the applications of Tapecrown Ltd to call fresh evidence and for permission to appeal against a remediation order and against a refusal of extension of time for compliance with the remediation order.]¬†

(3) Beaman 

106 On 17 November 2014 in the Crown Court at St Albans, the appellant, Beaman, having earlier pleaded guilty to possession of a disguised firearm contrary to section 5(1A)(a) of the Firearms Act  

1968 , was sentenced by Judge Griffith to a sentence of five years’ imprisonment. He appealed well out of time. Leave was given together with a very significant extension of time. After hearing argument, we allowed the appeal by substituting a sentence of 21‚ĀĄ2 years’ imprisonment. We said we would give our reasons later. These are our reasons.¬†

The background facts 

107 In the early hours of the morning of Sunday, 15 June 2014, Beaman was among a group of people in Parliament Square, in the town centre of Hertford. At around 2.25 am, door staff thought that they had seen one of the group with a stun gun and alerted some police officers who were on foot patrol. The officers went to investigate. As they did so, they heard the distinctive crackling sound of a Taser type device being activated. On approaching the group, they saw Beaman crouching down behind a parked car. He appeared to be trying to hide something and was detained. A bag of 40 diazepam tablets and what appeared to be an Apple iPhone 4 were recovered from the floor. The apparent iPhone turned out to be a form of stun gun. The officers tried the machine out; it was functioning and produced thick blue sparks and made the crackling sound that they had heard. 

108 Beaman immediately stated that the bag contained Valium, which he said was ‚Äúnot illegal‚ÄĚ. He added that he had got the drugs on prescription and obtained them in Thailand. His home address was searched: nothing was seized. He made no comment in police interview and was bailed to return. On 29 August 2014, he telephoned the police station and stated that the iPhone was ‚Äúa novelty item that he bought at the market and he didn‚Äôt know it was dangerous‚ÄĚ.¬†

The proceedings in the Crown Court 

109 On 13 October 2014, in the Crown Court at St Albans, Beaman pleaded guilty to possession of a controlled class C drug (diazepam) and to possession of a disguised firearm, contrary to section 5(1A)(a) of the Firearms Act 1968 . There was no written basis of plea. 

110 The appellant was born on 27 August 1987. He was 27 years old at the date of the offences. He had a conviction for possession with intent to supply cannabis in *487 2004, when he was 17 years old, for which he received a Referral Order. His subsequent offending was for unrelated matters and was of a relatively minor nature. He had been out of trouble for some years. 

111 A pre-sentence report was prepared in which Beaman’s version of events was recorded as follows

(i) He had been performing in a nightclub earlier that evening. Prior to going on stage he had taken a couple of diazepam and consumed approximately two pints of Strongbow to calm his nerves. After his performance he had taken a train to Hertford, where he met up with two friends. 

(ii) He had been showing one of these friends how the stun gun worked, by using it on himself, just before he was arrested. 

(iii) He had purchased the disguised stun gun for the equivalent of £13 as a novelty item in a market in Bulgaria, from where he had returned some five days previously. It had remained in his bag ever since; he had taken that bag to work that night. 

(iv) He did not know that the stun gun was illegal, and that his main concern when the police arrived on the scene was being found with the diazepam, because the tablets were not in blister packs and he did not have the prescription with him. 

(v) He would not have brought the stun gun into the United Kingdom in his hand luggage from abroad if he had been aware that it was illegal. 

(vi) Upon becoming aware that possession of novelty items of this type was illegal, he had warned two friends against purchasing similar items, and had purchased a domain name, ‚ÄúLawawareness.co.uk‚ÄĚ which he planned to use to convey information about the law relating¬†

to such items to others. 

112 The author of the report expressed the view that Beaman did have some understanding that he was committing an offence, but that he was not aware of its seriousness or of its possible consequences. 

113 The appellant’s account of having purchased the stun gun as a novelty item in Bulgaria was supported by a statement from a Mr Petkov, who also confirmed that it was not illegal to possess such items in Bulgaria.¬†

114 At the sentencing hearing on 17 November 2014, Beaman’s advocate (who did not appear on the appeal) sought to persuade the judge that there were exceptional circumstances in relation to Beaman and his possession of the disguised stun gun, which would otherwise attract a mandatory sentence of five years’ imprisonment. Reliance was placed upon the fact that Beaman had bought the item legitimately in the open market in Bulgaria; the fact that he had had it for a short period of time; the evidence of an expert instructed by the prosecution to the effect that the weapon was marketed as an non-lethal high-voltage self-defence weapon; evidence that until shortly before the sentencing hearing such items could be bought on Amazon, and that it was through the appellant contacting Amazon that such items had now been withdrawn by them from sale; and finally, Beaman’s professed ignorance of the prohibited nature of the article in question.¬†

115 So far as the last of these factors was concerned, the judge asked why, if that was the case, Beaman had tried to hide the stun gun when the police approached him. His advocate responded, consistently with the explanation given by Beaman to the probation officer, that he had panicked and put both of the articles down; he felt that the police might think that the bag of pills contained some other form of drug and that is why he got rid of them and the stun gun at the same time. 

116 The judge rejected Beaman’s assertion that he was unaware of the illegal nature of the disguised stun gun, because of his behaviour in trying to get rid of it when he was approached by the police. He accepted that the offending was wholly out of character, but he concluded that there were no exceptional circumstances, and passed the mandatory sentence of five years’ imprisonment with a concurrent sentence of 28 days’ imprisonment in relation to the possession of the diazepam.¬†

The contentions advanced on the appeal as to the need for a Newton hearing 

117 On the appeal, Mr Wakerley, who had not represented Beaman in the court below, first submitted on his behalf that in a case of this nature the key facts upon which the appellant wished to rely as giving rise to ‚Äúexceptional circumstances‚ÄĚ *488 should not be treated as matters relating purely to mitigation, since in a sense they were also relevant to the circumstances of the offending. Therefore, if there was to be a trial of an issue to determine a key fact in the context of determining whether there were exceptional circumstances, it should be treated as a Newton hearing.¬†

118 He next submitted that the provisions of Criminal Practice Direction VII Sentencing B10 applied. The judge should not have proceeded to make an adverse finding as to the appellant’s awareness that the disguised stun gun was illegal without first hearing evidence from him. Mr Wakerley submitted that, at the very least, the judge should have asked the defence advocate who represented Beaman at the sentencing hearing whether he proposed to call his client to give evidence, or given some forewarning of his intention to make an adverse finding as to his state of knowledge. That reflected the possibility that a defendant might make a tactical decision not to engage in the process in case an adverse finding was made by the judge which would result in his losing some of the credit that he might otherwise have received for his guilty plea. Although the advocate then representing Beaman had not sought a Newton hearing, fairness demanded that there should have been a Newton hearing and as the case could not be remitted, this court should hold such a hearing.¬†

Our conclusions 

119 The paragraphs of Criminal Practice Direction VII Sentencing section B consolidate the practice developed by the courts in relation to determining the factual basis for sentencing when the facts are or may be in issue. The Practice Direction does not explicitly deal with the determination of a dispute of fact in relation to whether ‚Äúexceptional circumstances‚ÄĚ existed. We do not consider that the provisions of Criminal Practice Direction VII B14 apply. That paragraph is concerned with a basis of¬†

plea where the basis of plea, although it should not have set out matters relating to mitigation, set out matters of mitigation which were closely aligned to the other facts. Nor is the position expressly covered by paragraphs B7 to B13. 

120 However, in R v McCleary [2014] EWCA Crim 302 , this court treated a hearing before the judge in relation to disputed facts which were said to give rise to a contention that there were exceptional circumstances as a Newton hearing with the consequence that, as the judge had disbelieved the defendant, he lost some of the credit to which he would otherwise have been entitled. In R v McCarthy [2013] EWCA Crim 2500 , although the court did not describe the hearing at which disputed matters in relation to exceptional circumstances were resolved as a Newton hearing, this court concluded that the defendant had substantially reduced the mitigation which would have arisen by virtue of his guilty plea. 

121 In our judgment the procedure should follow that of a Newton hearing. When a defendant wishes to rely on exceptional circumstances, these should be set out on his behalf in writing and signed by his advocate. The prosecution should then state whether they are agreed or not. If they are not agreed, then the defendant can then decide whether to seek a hearing, with the consequence that if he is disbelieved he will lose some of the credit to which he would otherwise be entitled. If the circumstances are agreed by the prosecution, but the judge does not approve that agreement, then the defendant must decide whether he wants a hearing. As was explained in R v Lashari [2011] 1 Cr App R (S) 72 , if a hearing takes place, then the judge must determine the matters to the criminal standard of proof and the burden is on the Crown to disprove the defendant’s account of the circumstances in which he acquired the firearm. If the Crown fails to do so, the judge must proceed on the basis that the defendant’s version is correct. It does not, of course, follow that the judge, even if he accepts the defendant’s version of events, will find that it amounts to exceptional circumstances. The hurdle for the defendant, in establishing exceptional circumstances, remains a high one.¬†

122 The offence here was one of strict liability, but Beaman’s state of mind was relevant to the level of his culpability. He specifically sought to rely on his alleged lack of awareness that possession of the disguised iPhone was illegal as a reason why the judge should find exceptional circumstances exist and he should not pass the statutory minimum sentence.¬†

*489 

123 However, this aspect of the case does not assist Beaman. His advocate did not seek a hearing and there is no obligation on the judge to accept a defendant’s assertions without hearing from him, or to alert his legal representatives to the potential consequences for him if he decides not to give or call evidence to substantiate his claim as to his state of mind, knowledge or intention.¬†

124 In the present case, Beaman did not challenge the prosecution’s account of what happened when the police officers approached him in Hertford town centre. On the face of it, therefore, in the absence of evidence to the contrary, the judge would be entitled to draw obvious inferences about the appellant’s state of mind from his behaviour in seeking to hide both the drugs and the disguised stun gun. The possibility that an adverse inference might be drawn was an obvious one, and even if it had not previously occurred to the defence advocate, the judge flagged the matter up by raising an express query about it in the course of his mitigation. It was up to Beaman to seek a hearing on the issue; failure to do so ran the risk that the adverse inference would be drawn. There was no onus on the judge to forewarn him that, in the absence of a trial of the issue, he might reach a view that was contrary to the submissions made by his advocate.¬†

125 In the event, no request was made to the judge to call Beaman to give evidence to resolve any issue as to whether he was aware that possession of the disguised iPhone was unlawful. Mr Wakerley, in accordance with his duties to the court, caused inquiries to be made of the advocate who represented Beaman at the sentencing hearing as to why a hearing of the issue was not sought. He informed us that that advocate had told him that this was not the result of any consideration that Beaman might lose credit for his plea if adverse findings were made‚ÄĒafter all, he was facing a mandatory minimum sentence. Rather it was because he, the advocate, did not consider that such a hearing was necessary.¬†

No hearing in this court 

126 We reject the suggestion that there should be a Newton hearing in this court. This is not a case which satisfies the criteria for the calling of fresh evidence under section 23 of the Criminal Appeal Act 1968 . That evidence could and should have been adduced at the sentencing hearing. A deliberate 

decision was taken not to ask the judge for a Newton hearing, but to proceed on the basis of what was said in the pre-sentence report. That decision was well within the ambit of discretion conferred on the defence advocate at the time of the sentencing hearing. 

127 Even if, in hindsight, it might now be felt that it would have been better to have taken a different course, that is no justification for treating Beaman’s evidence as fresh evidence and allowing it to be heard before this court. The application to adduce that evidence therefore fails.¬†

The contention that exceptional circumstances were in any event established 

128 In the alternative, Mr Wakerley submitted that, in any event, the judge was wrong in principle to find that there were no exceptional circumstances in the present case. He relied upon R v Rehman (Zakir) [2006] 1 Cr App R (S) 77 , R v McCleary ; R v McCarthy ; R v Zhekov [2014] 1 Cr App R (S) 69 and R v Withers [2015] 1 Cr App R (S) 64 . R v Withers , which deals in detail with earlier authorities concerning stun guns disguised as mobile phones, was decided after the appellant was sentenced, but none of the other cases appears to have been cited to the judge. If they had been, his conclusion may well have been different. 

129 As Globe J stated in R v Withers , at para 13, the approach to exceptional circumstances needs to be conducted in a structured manner in accordance with the statute and the principles within R v Avis [1998] 1 Cr App R 420 and R v Rehman . The question as to whether exceptional circumstances exist depends on the facts of the particular case. Previous authorities have demonstrated that exceptional circumstances may exist even if the defendant is aware that it is illegal to possess the disguised stun gun. 

130 In the present case, the four Avis questions are to be answered as follows: as to the type of weapon, it was marketed as a self-defence weapon. It did not shoot bullets; it *490 was assessed by the expert as applying a non-lethal but high voltage electrical shock. It was purchased legitimately on the open market in Bulgaria. Possession of a similar item which was not disguised as a mobile phone or a torch would not attract a mandatory minimum sentence under the Firearms Act 1968 . As to its use by Beaman, it was in his possession for only five days. For most of that time it was kept in his bag. It was not used by him at all save to demonstrate to a friend what it did, and in demonstrating it the appellant administered the shock to himself and not to another person. However, he chose to do this in a crowded public place in the early hours of the morning. 

131 As to the reasons why Beaman was in possession of it, he had bought it as a novelty item. His previous convictions were of no particular relevance to this offence. Although his behaviour in seeking to hide it when the police arrived indicated that he may well have been aware that it was unlawful, and the judge so held, after his arrest he did take active steps to warn others, including Amazon, that possession of such items is unlawful in the UK and this led to them being withdrawn from sale by Amazon. He pleaded guilty at the earliest opportunity, and there was genuine remorse as well as positive character references. 

132 This is a case in which, on balancing all the relevant factors, the sentencing judge was undoubtedly right to conclude that there had to be an immediate custodial sentence. However, on the facts, the judge was wrong to conclude that there were no exceptional circumstances justifying a departure from the minimum term. On that basis, the appropriate sentence would have been one of 21‚ĀĄ2 years’ imprisonment. We therefore quashed the five year term and substituted one of 21‚ĀĄ2 years. To this extent the appeal was allowed.¬†

Appeal in first case dismissed. 

Application in second case refused. 

Appeal in third case allowed. 

Sentence of 21‚ĀĄ2 years’ imprisonment substituted.¬†

Clare Barsby, Barrister 

*491 

  1. 1. Criminal Appeal Act 1968, s 23 : see post, para 3. 

(c) Incorporated Council of Law Reporting for England & Wales 

© 2017 Sweet & Maxwell 

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