Daniel Walton [2019] EWCA Crim 905

Daniel Walton [2019] EWCA Crim 905 concerned an appeal to the Court of Appeal (Lady Justice Hallett VP, Mr Justice Jay and Mrs Justice McGowan) against sentence for two dwelling-house burglaries. The appellant had asked for four further burglary offences to be taken into consideration.

Mr Walton pleaded guilty to the two burglary offences and was sentenced to a total of four years’ imprisonment concurrent on each count, with time served to count towards sentence. The offences involved the burglary of a home in Ware Road, Hertfordshire, on 5 January 2018, during which entry was gained through a broken kitchen window and property including war medals and silver cufflinks was stolen, and a burglary on 6 February 2018 in Buckingham Road, Wanstead, where entry was forced using a crowbar and handbags, jewellery and cash were stolen. The four offences taken into consideration were domestic burglaries committed between 3 January and 5 February 2018. The appellant was aged 34 at sentence and had 19 convictions for 51 offences including numerous thefts and burglaries.

However, the Court of Appeal identified fundamental procedural errors in the Crown Court proceedings. On 8 February 2018 Mr Walton had been sent for trial under section 51 of the Crime and Disorder Act 1998, but when he appeared before Judge Lees on 27 July 2018, it was erroneously assumed that he had been committed for sentence and had entered guilty pleas. No indictment was ever prepared, the appellant was never arraigned, and his pleas were never taken.

The court held that the proceedings before the Crown Court were invalid and amounted to a nullity. Mr Justice Jay reviewed the authorities including R v Williams [1978] QB 373, R v Ellis [1973] 57 Cr.App.R 571, R v Ashton [2007] 1 WLR 181, R v Clarke [2008] 2 All.ER 665 and Johnson v R [2018] EWCA Crim 2485. The court emphasised that whilst certain procedural failures might not invalidate proceedings where a defendant intended to plead not guilty and was fairly tried, the position was different where a defendant intended to plead guilty. Citing Shaw LJ in Williams, the court stated that no deviation from the rule that a guilty plea must come from the person acknowledging guilt was permissible. Sir Brian Leveson in Johnson had approved the principle in Ellis that a guilty plea must always be entered in person as part of a proper arraignment.

The court granted an extension of time to appeal, quashed the convictions and by necessary extension the sentences, and remitted the matter to the Crown Court for determination. Mr Justice Jay then sat as a judge of the Crown Court, properly arraigned the defendant, took his guilty pleas, and sentenced him afresh without regard to the conclusions of Judge Lees, although the original sentencing remarks were considered in the context of the appeal.

Applying the Sentencing Council’s Definitive Guideline for Burglary Offences, the court found the offences fell into Category 1 with greater harm due to ransacking and vandalism and significant loss including items of sentimental value, and higher culpability due to going equipped and use of a crowbar. The starting point was three years’ custody with a range of two to six years. Aggravating features included commission under the influence of drugs and the offences taken into consideration. Mitigating features included a degree of remorse manifested by attempts to recover the war medals, and positive engagement with drug rehabilitation services in prison.

Mr Justice Jay took an adjusted starting point of six years for the two offences and the matters taken into consideration, then gave full credit for the guilty pleas, reducing the sentence to four years’ imprisonment concurrent on each count. The court noted that Mr Walton had been in gainful employment as a scaffolder but had relapsed into drug use in December 2016 following ill health and unemployment, leading to the commission of six offences over six weeks. The court took into account his stable six-year relationship and his engagement with rehabilitation programmes. In short, procedural irregularities rendered the original sentence a nullity, requiring the convictions to be quashed and the matter remitted for proper arraignment and sentencing, resulting in a slightly more lenient sentence of four years’ imprisonment.

Williams [1978] QB 373, [1977] 2 WLR 400, [1977] 1 All ER 874 , 64 CrAppR 106
R v Ellis [1973] 57 Cr.App.R 571
Ashton and Others [2006] EWCA Crim 794; [2007] 1 WLR 181, [2006] 2 Cr App R 15
R v Clarke [2008] 2 All.ER 665