Law Report: Counsels' duty on sentencing powers: Regina v Hartrey - Court of Appeal (Criminal Division) (Lord Justice Steyn, Mr Justice Pill and Mr Justice Wright), 3 December 1992

It is the duty of both prosecuting and defence counsel to inform themselves of the court's sentencing powers in any case in which they are instructed, to know what sentencing options are open to the trial judge and to correct him if he should make a mistake.

The Court of Appeal substituted sentences totalling 12 months for offences of theft and breach of probation orders.

In March 1992 the appellant appeared before Judge DaCunha to be dealt with for two offences of theft and for breaches of 21 probation orders. The probation orders were for driving offences which were non-imprisonable, for offences of criminal damage carrying a maximum of three months' imprisonment and for handling offences carrying a maximum of six months' imprisonment. Judge DaCunha passed concurrent sentences of nine months for each breach of probation to run consecutively to concurrent sentences of 6 and 12 months for the two counts of theft. The appellant appealed against the total sentence of 21 months.

Carol Hagen (Registrar of Criminal Appeals) for the appellant.

MR JUSTICE WRIGHT, giving the judgment of the court, said that the judge, in passing sentences of nine months for each breach of probation acted in excess of his jurisdiction. Counsel on both sides of the record were derelict in their duty to the court in that they failed to draw the attention of the judge to the fact that he was passing a sentence which was outwith his powers.

It should not be thought that errors of this kind were of academic importance where they made no difference to the overall sentence which had been validly imposed; other components of the sentence might be struck down for different reasons and the risk of injustice was always present. Errors of this kind reflected little credit on those who made them and those who permitted them to be made.

The Court of Appeal had repeatedly pointed out the professional duty which was incumbent on counsel in this regard. But the depressing frequency with which cases came before the Court of Appeal in which mistakes of this kind had been made and gone uncorrected would seem to indicate that those exhortations were simply being ignored by the profession.

Yet again, and without wishing to derogate from the responsibility of the judge himself to be alert to the limitations imposed on him by statute, the Court of Appeal stressed that it was the duty of both prosecuting and defence counsel to inform themselves of the extent of the court's powers in any case in which they were instructed, to know what options were open to the trial judge and to correct him if, as it was unfortunately only too easy to do in the morass of legislation which governed the subject, he should make a mistake.

Prosecuting counsel, in particular, was not there merely to recite a brief resume of the facts, to produce the antecedent history of the defendant and thereafter to take no further interest in the proceedings. Any time a mistake of this kind was made and was not corrected within the permitted period, a considerable sum of public money had to be expended to put the matter right.

Having considered the circumstances of the case, the proper sentence would have been three months' imprisonment on each count of theft to run consecutively and six months' imprisonment for the breach of probation order for the handling offences again to run consecutively. No separate penalty should be imposed for the other breaches of probation.

Ying Hui Tan, Barrister

Start your day with The Independent, sign up for daily news emails
Arts and Entertainment
Joe Cocker performing on the Stravinski hall stage during the Montreux Jazz Festival, in Montreux, Switzerland in 2002
musicHe 'turned my song into an anthem', says former Beatle
News
Clarke Carlisle
sport
Sport
footballStoke City vs Chelsea match report
Arts and Entertainment
David Hasselhof in Peter Pan
theatreThe US stars who've taken to UK panto, from Hasselhoff to Hall
PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
ebooks
ebooksA year of political gossip, levity and intrigue from the sharpest pen in Westminster
Life and Style
Approaching sale shopping in a smart way means that you’ll get the most out of your money
life + styleSales shopping tips and tricks from the experts
News
newsIt was due to be auctioned off for charity
Life and Style
A still from a scene cut from The Interview showing North Korean leader Kim Jong-un's death.
tech
Environment
Sir David Attenborough
environment... as well as a plant and a spider
Voices
'That's the legal bit done. Now on to the ceremony!'
voicesThe fight for marriage equality isn't over yet, says Siobhan Fenton
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Austen Lloyd: Regulatory / Compliance / Exeter

Excellent Salary: Austen Lloyd: Exeter - An excellent opportunity for a Solici...

Ashdown Group: IT Support Technician - 12 Month Fixed Term - Shrewsbury

£17000 - £20000 per annum: Ashdown Group: IT Helpdesk Support Technician - 12 ...

The Jenrick Group: Maintenance Planner

£28000 - £32000 per annum + pension + holidays: The Jenrick Group: Maintenance...

The Jenrick Group: World Wide PLC Service Engineer

£30000 - £38000 per annum + pesion + holidays: The Jenrick Group: World Wide S...

Day In a Page

Surrounded by high-rise flats is a little house filled with Lebanon’s history - clocks, rifles, frogmen’s uniforms and colonial helmets

Clocks, rifles, swords, frogmen’s uniforms

Surrounded by high-rise flats is a little house filled with Lebanon’s history
Return to Gaza: Four months on, the wounds left by Israel's bombardment have not yet healed

Four months after the bombardment, Gaza’s wounds are yet to heal

Kim Sengupta is reunited with a man whose plight mirrors the suffering of the Palestinian people
Gastric surgery: Is it really the answer to the UK's obesity epidemic?

Is gastric surgery really the answer to the UK's obesity epidemic?

Critics argue that it’s crazy to operate on healthy people just to stop them eating
Homeless Veterans appeal: Christmas charity auction Part 2 - now LIVE

Homeless Veterans appeal: Christmas charity auction

Bid on original art, or trips of a lifetime to Africa or the 'Corrie' set, and help Homeless Veterans
Pantomime rings the changes to welcome autistic theatre-goers

Autism-friendly theatre

Pantomime leads the pack in quest to welcome all
The week Hollywood got scared and had to grow up a bit

The week Hollywood got scared and had to grow up a bit

Sony suffered a chorus of disapproval after it withdrew 'The Interview', but it's not too late for it to take a stand, says Joan Smith
From Widow Twankey to Mother Goose, how do the men who play panto dames get themselves ready for the performance of a lifetime?

Panto dames: before and after

From Widow Twankey to Mother Goose, how do the men who play panto dames get themselves ready for the performance of a lifetime?
Thirties murder mystery novel is surprise runaway Christmas hit

Thirties murder mystery novel is surprise runaway Christmas hit

Booksellers say readers are turning away from dark modern thrillers and back to the golden age of crime writing
Anne-Marie Huby: 'Charities deserve the best,' says founder of JustGiving

Anne-Marie Huby: 'Charities deserve the best'

Ten million of us have used the JustGiving website to donate to good causes. Its co-founder says that being dynamic is as important as being kind
The botanist who hunts for giant trees at Kew Gardens

The man who hunts giants

A Kew Gardens botanist has found 25 new large tree species - and he's sure there are more out there
The 12 ways of Christmas: Spare a thought for those who will be working to keep others safe during the festive season

The 12 ways of Christmas

We speak to a dozen people who will be working to keep others safe, happy and healthy over the holidays
Birdwatching men have a lot in common with their feathered friends, new study shows

The male exhibits strange behaviour

A new study shows that birdwatching men have a lot in common with their feathered friends...
Diaries of Evelyn Waugh, Virginia Woolf and Noël Coward reveal how they coped with the December blues

Famous diaries: Christmas week in history

Noël Coward parties into the night, Alan Clark bemoans the cost of servants, Evelyn Waugh ponders his drinking…
From noble to narky, the fall of the open letter

From noble to narky, the fall of the open letter

The great tradition of St Paul and Zola reached its nadir with a hungry worker's rant to Russell Brand, says DJ Taylor
A Christmas ghost story by Alison Moore: A prodigal daughter has a breakthrough

A Christmas ghost story by Alison Moore

The story was published earlier this month in 'Poor Souls' Light: Seven Curious Tales'