Director of Public Prosecutions v Pierce Giles [2019] EWHC 2015 (Admin)

In Director of Public Prosecutions v Pierce Giles [2019] EWHC 2015 (Admin), the Divisional Court (Lord Justice Hickinbottom and Mr Justice Butcher) allowed the prosecution’s appeal by way of case stated, quashed the sentence imposed and remitted the matter to the magistrates’ court for re-sentencing.

Mr Giles had pleaded guilty at North Tyneside Magistrates’ Court on 30 November 2018 to assault occasioning actual bodily harm contrary to section 47 of the Offences against the Person Act 1861. He was sentenced to a twelve-month community order comprising a rehabilitation activity requirement of a maximum of fifteen days and 210 hours of unpaid work. He was also ordered to pay £150 compensation to the victim, Mr Mowbray, plus £85 costs and an £85 victim surcharge.

The offence occurred on 6 May 2018 at Wallsend. The prosecution case, based on statements from Mr Mowbray and his friend Mr Rowe, was that the men were sitting at a table in a public house when Mr Giles, seated at the next table, accused Mr Rowe of deliberately staring at him. Mr Giles became abusive, calling them “gay” and making other homophobic comments. The argument escalated and a member of staff intervened. Mr Mowbray heard Mr Giles shout “You stupid puff” whilst Mr Rowe heard him say “You fucking puff”. Mr Rowe stated that he felt shocked because he did not think people thought like that anymore and he considered there to be a hate-related factor. Mr Giles then threw a glass at Mr Mowbray, striking him to the back of the head and causing a three-centimetre cut which required brief hospital treatment.

Mr Giles was charged on 26 October 2018. The prosecution notified both the court and the defendant that in the event of conviction it would ask the court to treat the case as aggravated by hostility on the grounds of sexual orientation in accordance with section 146 of the Criminal Justice Act 2003. When the matter was first listed for plea on 23 November 2018 before District Judge Elsey, Mr Giles indicated he would plead guilty but only on the basis that no homophobic language was used and there was therefore no statutory aggravation under section 146. The prosecution maintained its case on the full facts including the homophobic abuse. Contrary to CrimPR rule 24.11(5)(a), no written basis of plea was submitted and the Crown did not press for one.

The District Judge concluded that the custody threshold was met whether or not the offence was aggravated by homophobic hostility. He recognised that if the offence had been committed in homophobic circumstances section 146 would require an uplift to sentence, but considered the uplift would be “marginal” as the words spoken were at the lower end of the scale of homophobic abuse. He considered it would not be in the interests of justice to require the victim to attend court and face the ordeal of giving evidence if the sentence would not be significantly increased. He determined that Mr Giles should simply be sentenced on the basis of his plea and adjourned for a pre-sentence report.

The adjourned sentencing hearing took place before a bench of three justices on 30 November 2018. The legal adviser advised that the justices were required to determine whether a Newton hearing (R v Newton (1983) 77 Cr App R 13) was required and that if they were satisfied that the prosecution version of events would attract a materially different sentence from the defendant’s version, they should hear evidence to determine the correct basis for sentence. If they were not satisfied there would be a material difference in sentence, Mr Giles should be sentenced on the basis of his version of events.

The justices considered that the use of the glass as a weapon was such an aggravating factor that the homophobic comment as described by the prosecution, if found to be true, would not materially increase the level of sentence. They were therefore satisfied that a Newton hearing was not necessary and proceeded to sentence on the basis of Mr Giles’s version of events, imposing the sentence detailed above.

The magistrates’ court posed two questions in its case stated. First, whether it is open to a court to determine that a case presented by the prosecution as aggravated by virtue of section 146, which is disputed by the defence, does not require a Newton hearing where it is of the opinion that the existence of the aggravating factor would not make a significant difference to the sentence in the context of the case as a whole. Second, if the answer to the first question is yes, whether the court was right to make that determination in the circumstances of this case, being mindful that a Newton hearing would require the injured party to give evidence and be cross-examined.

Lord Justice Hickinbottom gave the leading judgment. He explained that when an offender pleads guilty but disputes the prosecution case and his version would make a material difference to sentence, a Newton hearing must be held. If there would be no material difference even if the offender’s version were true, there is no need for such a hearing. However, he considered that the District Judge’s reasoning on 23 November 2018 was unconvincing. There was no evidence that Mr Mowbray would find attending court an ordeal and nothing to suggest he would not have been willing to give evidence had there been a trial. The fact that the District Judge considered it might be an ordeal was itself an indication of the possible serious consequences of the alleged homophobic hostility. Mr Rowe would also be able to give relevant evidence and, in any event, it is generally inappropriate not to hold a Newton hearing merely to avoid the victim having to relive the trauma of the offence.

Lord Justice Hickinbottom further held that the District Judge’s description of the words as “at the lower end of the scale of homophobic abuse” missed the point. Such abuse is capable of disclosing homophobic hostility as a driver for the offence. The evidence was that the abuse was not limited to a single throwaway word but was persistent. Such abuse is capable of being more deeply hurtful, damaging and disrespectful to victims than simple versions of these offences, citing R v Rogers [2007] UKHL 8 at paragraph 12, and the evidence was that the abuse shocked Mr Rowe. The fact that the custody threshold was in any event reached was not to the point: if homophobic circumstances were proved, that was capable of materially increasing the length of any custodial sentence.

Turning to the justices’ decision on 30 November 2018, Lord Justice Hickinbottom rejected the sole reason they gave, namely that the use of a weapon in the context of assault occasioning actual bodily harm was such an aggravating feature that the homophobic comment would not materially increase the level of sentence. He stated that he did not follow the logic of that reasoning. If homophobic hostility might have led to the use of a weapon against the victim, that would or might be statutory aggravation of a particularly high level.

Lord Justice Hickinbottom held that the justices clearly erred in not holding a Newton hearing to determine whether, as the prosecution alleged, Mr Giles demonstrated hostility towards Mr Mowbray based on his actual or presumed sexual orientation and whether the offence was motivated by such hostility as evidenced by the alleged abuse. Both the District Judge and the justices appeared to have accepted that Mr Giles may have demonstrated or been motivated by such hostility. The version of events given by Mr Mowbray and Mr Rowe was clearly not fanciful and, if accepted, it would be highly likely if not certain to be concluded that the offence was committed in homophobic circumstances. If such hostility were proved, he could not see how, on the facts of this case, it could be said that it would necessarily be immaterial to the sentencing exercise.

Lord Justice Hickinbottom emphasised that by section 146, Parliament has specifically marked homophobic circumstances as being a mandatory aggravating factor for sentencing purposes. Whilst he would not go so far as saying that an offence committed in such circumstances must inevitably result in a more severe sentence, it is difficult to think of circumstances in which in practice it would not. Such circumstances would be at most exceedingly rare. This case certainly did not fall into that category.

The judge further held that even if a case were to arise in which homophobic circumstances or other section 146 circumstances were found to be present at the time of the offence but the court could properly conclude that that would make no difference to the sentence to be imposed, section 146(3)(b) requires the sentencing court to state in open court that the offence was committed in such circumstances if it is found that that was so. Therefore, even if a Newton hearing were considered to be unnecessary for the purposes of sentencing, the court would generally be bound to hold a hearing to ascertain whether section 146 circumstances existed at the time of the offence so that a statement under that provision could be made. To decline to make the relevant findings would frustrate the purpose of section 146(3)(b), which imposes a requirement independent of the requirement to treat the fact that the offence was committed in the relevant circumstances as an aggravating factor for sentencing purposes. Such statements serve a number of purposes, including ensuring that if an offender repeats such hostility in the future there is a record of past offending involving such hostility. Such a statement may also be important to the victim and be in the public interest as reflected by the statutory provision.

Lord Justice Hickinbottom held that where Parliament has constrained the discretion of the court by setting mandatory requirements when sentencing particular types of case, a sentencing court must remain true to those requirements. Section 146 required the justices to grasp the nettle and, at a Newton hearing, to determine to the criminal standard of proof whether Mr Giles was homophobically abusive as Mr Mowbray and Mr Rowe said in their statements he was and, on the basis of the facts as found, whether homophobic circumstances for the purposes of section 146 were proved. If so, the justices were then required by the statute to consider the extent to which the sentence they would have imposed in the absence of those circumstances should be increased. In failing to take these steps, the justices clearly erred.

Lord Justice Hickinbottom answered the first question with a highly qualified yes. It is in theory open to a court to determine that a case presented by the prosecution as aggravated by virtue of section 146, which is disputed by the defence, does not require a Newton hearing where it is of the opinion that the existence of the aggravating factor would not make a material rather than significant difference to the sentence. However, where the evidence is such that it leaves open a finding that homophobic circumstances or other section 146 circumstances may be made out, it is difficult to conceive of circumstances which, in practice, the aggravation will be necessarily immaterial such that a Newton hearing to find the facts will not be required. Certainly, if such circumstances exist, they will be very rare in practice. In any event, for the reasons given, even if such a case were to arise, the court may be required to hold a hearing to ascertain whether section 146 circumstances were present at the time of the offence so that a statement under section 146(3)(b) can be given in open court.

The answer to the second question was no. At the hearing on 30 November 2018, the magistrates’ court was wrong to conclude that if section 146 circumstances were to be proved, then that could not make a material difference to the sentence in the context of the case as a whole. The court was required to hold a Newton hearing to find the relevant facts and then make an assessment as to whether there were homophobic circumstances in this case and, if so, the extent to which the sentence should be increased as a result.

Lord Justice Hickinbottom stated that the magistrates’ court would wish to hold a Newton hearing to determine the facts and then, dependent upon the facts as found, to determine whether homophobic circumstances attended the offence. If so, they would be required to make a statement to that effect in open court under section 146(3)(b) and also to consider the extent to which those circumstances aggravate the sentence under section 146(3)(a). As the Sentencing Guidelines suggest, that usually requires a two-stage process. First, the court must determine the sentence that would have been appropriate if the offence had not been attended by the homophobic circumstances. Second, the court must determine the aggravation to that sentence, in terms of the increase in the sentence, which the homophobic circumstances dictate. Generally, as the Sentencing Guideline emphasises, transparency in sentencing requires the analysis to be set out in the sentencing remarks, no matter how briefly.

The magistrates would also have to consider whether, as a result of delay, double jeopardy and the part service by Mr Giles of the sentence imposed on 30 November 2018, the sentence otherwise appropriate should be mitigated. Mr Heptonstall fairly and properly conceded that even if the magistrates were to find that the offence here was attended by homophobic circumstances and the sentence should therefore be made more severe, they may consider it would be unfair and unjust if Mr Giles’s sentence were substantially more severe than that previously imposed. Lord Justice Hickinbottom observed that there appeared to be much force in that point. Mr Justice Butcher agreed.

In short, a sentencing court is generally required to hold a Newton hearing where the prosecution alleges that section 146 circumstances attended an offence and the defendant disputes that allegation, because proof of such circumstances will almost invariably be material to sentence and, even if it is not, the court must usually make findings sufficient to enable the independent statutory duty to state in open court that the offence was committed in such circumstances to be discharged.

Underwood and Others [2004] EWCA Crim 2256
R v Mackenzie [1985] 7 Cr App R (S) 441
Rogers [2007] UKHL 8