Issue 285  18th March 2023

What is the correct approach to sentencing an adult for an offence committed when he was a child? That question arises in each of the five cases which are before the court. For that reason, although otherwise unconnected, they have been heard together before this Special Court. Individually and collectively, they provide an opportunity to address a suggested tension between previous decisions of this court...

i) Whatever may be the offender's age at the time of conviction and sentence, the Children guideline is relevant and must be followed unless the court is satisfied that it would be contrary to the interests of justice to do so.

ii) The court must have regard to (though is not necessarily restricted by: see (v) below) the maximum sentence which was available in the case of the offender at or shortly after the time of his offending. Depending on the nature of the offending and the age of the offender, that maximum may be (a) the same as would have applied to an adult offender; (b) limited by statutory provisions setting a different maximum for an offender who had not attained a particular age; or (c) limited by statutory provisions restricting the availability of different types or lengths of custodial sentence according to the age of the offender.

iii) The court must take as its starting point the sentence which it considers was likely to have been imposed if the child offender had been sentenced shortly after the offence.

iv) If in all the circumstances of the case the child offender could not in law have been sentenced (at the time of his offending) to any form of custody, then no custodial sentence may be imposed.

v) Where some form of custody was available, the court is not necessarily bound by the maximum applicable to the child offender. The court should, however, only exceed that maximum where there is good reason to do so. In this regard, the mere fact that the offender has now attained adulthood is not in itself a good reason. We would add that we find it very difficult to think of circumstances in which a good reason could properly be found, and we respectfully doubt the decision in Forbes in this respect. However, the point was not specifically argued before us, and a decision about it must therefore await a case in which it is directly raised.

vi) The starting point taken in accordance with (iii) above will not necessarily be the end point. Subsequent events may enable the court to be sure that the culpability of the child offender was higher, or lower, than would likely have been apparent at the time of the offending. They may show that an offence was not, as it might have seemed at the time, an isolated lapse by a child, but rather a part of a continuing course of conduct. The passage of time may enable the court to be sure that the harm caused by the offending was greater than would likely have been apparent at that time. Because the court is sentencing an adult, it must have regard to the purposes of sentencing set out in section 57 of the Sentencing Code. In each case, the issue for the court to resolve will be whether there is good reason to impose on the adult a sentence more severe than he would have been likely to have received if he had been sentenced soon after the offence as a child...

... The conviction applications, by various routes, seek to challenge the admissibility or admission of evidence which became available as a result of the French law enforcement agencies in late 2019 breaching a sophisticated encryption phone system known as EncroChat. That was achieved by planting malware on the phones which enabled vast quantities of messages and other data to be harvested from the EncroChat server. It had been marketed as being totally secure. The National Crime Agency ("the NCA") was aware through informal channels of the breakthrough but it was not until June 2020 that the French authorities permitted them to use the data in criminal proceedings. This gave rise to Operation Venetic, the largest police operation of its type in the United Kingdom, channelling unparalleled resources into the prosecution of the most serious organised crime offences...

... None of the grounds of appeal has any merit. The judge's decision to refuse an adjournment on 25 November 2021 was unimpeachable. The trial had already been adjourned more than once. The overall interests of justice, including the public interest, militated against a further adjournment for what in effect would have been an indefinite period on no more than a hope that the outcome of the IPT proceedings might assist the defendants. In any event, the issue before the IPT is not the admissibility of the EncroChat material. The judge's refusal to adjourn the trial on 18 February 2022 to enable Professor Anderson to be instructed is equally unassailable. We accept that the defence could not have been aware of Professor Anderson's report before the end of January 2022. The only paragraphs in his report to which our attention was drawn as supporting the hypothesis that the EncroChat data may be unreliable do no more than advance a theoretical possibility, unconnected with the substance of the issues in this case. Unusually, in this case Brown's EncroChat phone was recovered in a condition which enabled the material recovered by the French authorities to be compared with that remaining on the phone. It was the same. Professor Anderson's report is directed at other matters. We note that he did not give oral evidence in the IPT proceedings. In any event, Professor Anderson has declined to accept further instructions in EncroChat matters. There is no possibility of his being instructed...

The Parole Board ("the Board"), although funded by the Ministry of Justice ("MOJ"), is an arms-length body with important judicial functions. These include deciding whether prisoners with indeterminate sentences who have completed their minimum terms, or who have been released and recalled to prison, should be released into the community. The law requires this function to be discharged by a body which has the essential attributes of a court – i.e. one which is, and is seen to be, impartial and independent of the executive. It is well established that the Board satisfies these criteria in principle. It is equally well established that, when exercising powers in relation to the Board, the Secretary of State must not to do anything that undermines or would be perceived as undermining the independence of the Board or that encroaches upon or interferes with the exercise by the Board of its judicial responsibilities.

In this claim, the claimants were prisoners serving indeterminate sentences whose cases were before the Board and who were awaiting oral hearings when, on 28 June 2022, the Secretary of State exercised his statutory powers to make the Parole Board (Amendment) Rules (SI 2022/717: "the Amendment Rules"). These amend the rules governing proceedings before the Board. Rule 2(22) of the Amendment Rules came into force on 21 July 2022. It prohibited staff employed or engaged by HM Prison and Probation Service ("HMPPS staff") from including in their reports a view or recommendation on the question whether a prisoner is suitable for release or transfer to open conditions ("the ultimate issue"). It also provided that, were considered appropriate, the Secretary of State would present a "single view" on the prisoner's suitability for release. To explain the implications of the prohibition for HMPPS staff preparing reports for the Board and giving evidence at oral hearings, the Secretary of State issued guidance ("the July Guidance"), which was used as the basis for staff training...

... the decision to make rule 2(22) was nonetheless unlawful for two reasons: (i) One of the Secretary of State's principal purposes in making it was to suppress or enable the suppression of relevant opinion evidence which differed from his own view in cases where he expressed one. That purpose was improper. The decision to make the rule was an attempt by a party to judicial proceedings to influence to his own advantage the substance of the evidence given by witnesses employed or engaged by him and an impermissible interference with a judicial process. The fact that the attempt failed because the drafters did not achieve his purpose does not save the decision from being unlawful. (ii) There is no evidence that the Secretary of State ever considered whether a prohibition on the expression of views on the ultimate issue was justified if its application was limited to the reports sent with the referral. The reasons currently advanced for it do not provide a rational justification for rule 2(22) on its correct, narrow construction...