Peter King [2019] EWCA Crim 1176

Regina v Peter King [2019] EWCA Crim 1176 concerned an appeal to the Court of Appeal, Criminal Division, against a consecutive sentence of six months’ imprisonment imposed for failing to surrender to custody, contrary to section 6 of the Bail Act 1976.

Mr King had been convicted on 12 April 2019 at the Crown Court at Southwark before His Honour Judge Gledhill QC of conspiracy to commit fraud by false representation. On 15 April 2019 he was sentenced to four years and six months’ imprisonment for the fraud offence and six months’ imprisonment consecutive for the Bail Act offence, making a total of five years. There was no appeal against the substantive fraud sentence.

The substantive offences spanned 2015 to 2017 and involved Mr King and a co-accused, Mr Eastwood, defrauding elderly and vulnerable people by providing substandard, overpriced and often unnecessary building work. The court noted that the offending involved serious dishonesty and could fairly be described as despicable.

During the trial Mr King had been on bail. At one point he failed to turn up on time and was remanded in custody. The judge subsequently restored his bail in response to entreaties about difficulties the appellant was said to suffer in custody. While the judge was summing up the case to the jury, Mr King failed to attend. He was arrested after sentence had been passed and was brought back before the court on 17 April 2019 to be sentenced for the Bail Act offence.

In passing sentence the judge remarked that he found it difficult to believe a single word the appellant had said after what had happened during the trial. The appellant had promised the court that he would be on time and honour his bail conditions. The judge concluded that Mr King had intended to disrupt the trial but that attempt had not worked. The judge had been told that Mr King had been taken seriously ill and rushed to hospital, which the judge said was a pack of lies. When the judge was informed that Mr King was not in hospital and had breached his bail, he did not inform the jury. The judge was told that attendance at the sentencing hearing would amount to some mitigation, but Mr King did not attend. The judge passed sentence in his absence as it had been plain that Mr King had no intention of attending. A great deal of police time had been spent locating him and bringing him to court. The judge considered the sentencing guidelines for failure to surrender to bail and remarked that a more serious failure to surrender was very hard to imagine. Although the judge had the guidelines in mind, they did not assist him as to how to sentence the appellant for this offence. Bearing in mind all the aggravating features, the appropriate sentence was six months’ imprisonment consecutive.

Mr King had 30 previous convictions for 56 offences spanning 1984 to 2018. Those convictions included 30 for theft and kindred offences and five offences relating to police, courts or prisons.

Mr Levack for Mr King advanced four submissions. First, having regard to the guideline, culpability was Category B. Culpability A involved failure to surrender representing a deliberate attempt to evade or delay justice, which Mr Levack submitted was reserved for still more serious cases. This case fell within culpability Category B rather than A. Secondly, in terms of harm, the failure to attend the Crown Court hearing had not resulted in substantial delay or interference with the administration of justice. Accordingly, this was not harm Category 1 but harm Category 3. Thirdly, on the footing that this was a B3 case, the judge’s sentence was far too high. B3 involved a starting point of a fine with a category range from band A fine to a medium level community order. Even if the offence was aggravated, it did not approach the level of sentence the judge passed. Finally, Mr Levack submitted that whatever view the judge took as to the starting point, he had failed to give reasons for or justify not affording Mr King a discount for his admission of the Bail Act offence at the first opportunity. Mr Levack accepted throughout that guidelines were only guidelines, but in so far as the judge went outside them he had not given adequate reasons for doing so.

In the judgment of the court delivered by Lord Justice Gross, the matter could be briefly disposed of. In guideline terms this was Culpability A and harm Category 3. The court had no doubt the judge was entitled to conclude that the appellant’s failure to surrender represented a deliberate attempt to evade or delay justice. In terms of the guideline the starting point was 14 days’ custody with a range of low level community order to six weeks’ custody. However, this was a serious offence of its type, committed by a man with a poor record. Given the history of bail during the trial, the judge was entitled to sentence outside the category range. The appellant had quite simply abused the court’s indulgence. This was not a one-off incidental failure to surrender to custody. He betrayed the trust the judge had placed in him. He knew full well what he was doing and aggravated matters by ensuring that, as the judge put it, a pack of lies was told to the court. His intention was to disrupt the trial. Fortunately, the effort failed.

The court accordingly saw nothing wrong in the judge going outside the guideline range and taking a starting point of six months. Especially in the case of an offender such as this, it was important that the consequences were brought home to him. He had, as the judge put it, brought all this on himself.

In one respect only, however, the judge fell into error. The appellant admitted the offence at once when he was apprehended. There was no good reason for the judge not allowing him the one-third discount to which he was entitled and for which Mr Levack contended. For that reason, and to that extent only, the court allowed the appeal. The court quashed the sentence of six months’ imprisonment consecutive and substituted a sentence of four months’ imprisonment consecutive. The substantive sentence of four years six months remained. The total sentence of imprisonment became one of four years and ten months’ imprisonment. In short, the appeal succeeded only on the narrow ground that Mr King was entitled to full credit for his plea to the Bail Act offence, reducing the consecutive term from six months to four months.