On 31 March 2022 the defendant was convicted of one count of converting criminal property and two counts of concealing criminal property, contrary to section 327(1) of the Proceeds of Crime Act 2002. After her conviction on 31 March 2022, the date for sentence for the defendant and her three co-accused was fixed for 9 June 2022. On 13 April the prosecution note for sentence was served and on 6 May a note for sentence was served on the defendant’s behalf. The date for sentence was subsequently adjourned until 2 September, as the first date available to all counsel. On 1 September counsel for the defendant sent an e-mail to the judge in which he explained that he would not be attending on 2 September because of the Criminal Bar Association’s days of action and he then sent a further e-mail to the judge drawing his attention to section 226(3) of the Sentencing Act 2020 which provided that in respect of an offender over 21 a court might not pass a sentence of imprisonment unless the offender was legally represented in that court and unless the offender had previously been sentenced to imprisonment by a court in any part of the United Kingdom. The judge said that he considered it to be lawful to proceed to sentence the defendant, including to a sentence of imprisonment, because she had had the assistance of counsel since her conviction and the court had made it clear that it would receive any further submissions in writing. The defendant was subsequently sentenced to concurrent terms of two years’ imprisonment. She appealed against sentence on the ground that it was unlawful to sentence her when she had the benefit of a legal aid order but did not have any legal representation at court.
On the appeal—
Held, appeal allowed. The lawfulness of the sentence turned not on the reasonableness or otherwise of the judge’s approach on the facts, but on what was required by the relevant statutory provisions. The relevant legislation was currently to be found in Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and in the regulations made thereunder. The defendant’s lack of representation was not of her own choice or of her own making. Under the 2012 Act she qualified for representation in the criminal proceedings against her, a representation order had been made, and it was still in place at the time of the sentencing hearings on 2 and 5 September 2022. By the time of the sentencing hearing, nothing had happened which might have limited the defendant’s rights under section 27(4) and (5) of the 2012 Act or led to the withdrawal of her representation order pursuant to regulation 9 of the Criminal Legal Aid (Determinations by a Court and Choice of Representatives) Regulations 2013. She had not declined to accept the determination in the terms which were offered; or requested that the determination be withdrawn. Although her counsel declined to attend at court on 2 and 5 September 2022, neither they nor her solicitors had declined to continue to represent her, but remained willing to act on her behalf. Nor had any of the grounds specified in section 226(7) and (8) of the 2020 Act, for disapplying the restrictions on sentence for a person in the position of the defendant, been triggered. She was not represented because her counsel had decided to participate in the Criminal Bar Association action—a matter which was simply not under her control. Accordingly, the defendant remained entitled to legal aid and had taken no step herself which could have led to the revocation of a representation order under section 226. Although she had been legally represented “at some time after being found guilty and before being sentenced” those words in section 226(6) were not intended by Parliament to deprive someone in the position of the defendant of legal assistance at a critical time. Instead, they were directed to give the court a measure of control in relation to an offender who dispensed with his legal representatives between plea and sentence, and who, but for those words, could have impeded the administration of justice. It was unlawful to sentence her unless and until, for proper reason, her representation order was revoked or withdrawn. It followed that the defendant’s sentence had to be quashed. Nevertheless it was open to the Court of Appeal to impose any sentence which it was within the powers of the Crown Court to pass on the defendant, provided that, taking the case as whole, she was not dealt with more severely than she was dealt with by the court below. For the reasons given, the sentence imposed by the court below would be quashed, and pursuant to the provisions of section 11(3) of the Criminal Appeal Act 1968, a like sentence of two years’ imprisonment would be imposed on each count, to run concurrently; the sentence to run from the date when the judge purported to impose it (paras 17, 19, 26, 30, 31–33, 35, 36, 37, 45).
Henry Blaxland KC (assigned by the Registrar of Criminal Appeals) for the defendant.
Benjamin Douglas-Jones KC and Emma King (instructed by the Crown Prosecution Service, Specialist Fraud Division) for the Crown.