William Clegg QC (instructed by McKay Law, Leeds) for the appellant.
David Perry QC and Colonel Charlie Barnett (instructed by Service Prosecuting Authority) for the Crown.
As a result of information received by the civilian police Serjeant X’s rented accommodation, which he shared with the defendant, was searched. The defendant was serving in Afghanistan at the time. A Glock automatic pistol and ammunition belonging to the defendant were found. There was no evidence to suggest that the firearm was intended to be used for any criminal purpose. The defendant was charged with possessing a prohibited firearm, contrary to section 5(1)(aba) of the Firearms Act 1968 and possessing prohibited ammunition, contrary to section 5(1)(c) of the 1968 Act. At the court–martial his counsel asked the Assistant Judge Advocate General for further time to discuss with his client the issues which arose. It would have been readily obvious to the judge that the issue was likely to be the defendant’s plea. Counsel was not seeking an indication as to sentence but the judge asked to be reminded “which of these charges engaged the mandatory custodial term of five years’ imprisonment”. Prosecuting counsel replied that the mandatory sentence applied to the first charge only. The judge considered the matter further and what he appeared to say was that unless the defendant pleaded guilty he would be bound to be sentenced to five years’ imprisonment. The defendant subsequently pleaded guilty and was sentenced to a total of 18 months’ imprisonment, which was reduced on the appeal against sentence to 12 months’ imprisonment suspended for 12 months. He appealed against conviction.
It was abundantly clear that the Judge Advocate had been giving an uninvited sentence indication that if the defendant pleaded not guilty and was convicted he would lose the “exceptional circumstances” mitigation which would be available if he pleaded guilty and would therefore be at risk of serving five years’ imprisonment in a civilian prison. Unless a defendant requested an indication of the range of sentences he was likely to face if he pleaded guilty or not guilty a judge should not give an advance indication of sentence. The fact that the judge had done so in the instant case had narrowed the defendant’s freedom of choice and had put inappropriate pressure on him to plead guilty. The appeal would be allowed and a retrial ordered.