Criminal law (See also: Health and Safety): R v Howells and related appeals (30th July 1998) Court of Appeal

United Kingdom
This case involved a series of appeals on sentencing in criminal cases in which the court gave guidance on the imposition of custodial sentences. Although none of the cases involved environmental offences the principles are nevertheless relevant to environmental offences in respect of which custodial sentences may be imposed. The court sought to give guidance on when for the purposes of Section 1(2)(a) of the Criminal Justice Act 1991 an offence is so serious that only a custodial sentence could be justified. The judge referred to the somewhat comparable Section 1(4) of the Criminal Justice Act 1982 in respect of which Lord Justice Lawton in R v Bradbourn (1985) 7 Cr App R(S)180, 182 had said: "the phrase 'so serious that a non-custodial sentence cannot be justified' comes to this: the kind of offence which when committed by a young person would make right thinking members of the public, knowing all the facts, feel that justice had not been done by the passing of any sentence other than a custodial one". These comments were held in R v Cox [1993] 1 WLR 188 to apply to the slightly different wording of Section 1(2)(a) of the Criminal Justice Act 1991. The judge took the view that it was not helpful to refer to "right thinking members of the public" since inevitably the court attributes its own views to such people. The judge stated that it would be dangerous and incorrect to lay down prescriptive rules governing the exercise of the court's judgement and any guidance would be subject to exceptions and qualifications in some cases. In borderline cases the judge stated that a starting point is to consider the nature and extent of the defendant's criminal intention and any injury or damage caused. In most cases deliberate and pre-meditated offences would be more serious than spontaneous and unpremeditated offences or offences involving an excessive response to provocation. Offences inflicting personal injury or metal trauma are normally more serious than those inflicting financial loss only. Previous convictions and failure to respond to previous sentences may be taken into account. The judge went onto outline factors to be taken into account in sentencing in borderline cases. These included: an early admission of guilt accompanied by hard evidence of remorse; evidence of previous good character rather than just no previous convictions; and whether or not a custodial sentence has been imposed on the offender before. The judge went on to stress that the policy behind a decision to impose a criminal sentence should always be kept in mind when sentencing whether it be punishing the offender, reforming him or deterring him. Attention was drawn by the judge to comments of Lord Justice Rose in R v Ollerenshaw (Times Law Reports, 6th May 1998) to the effect that in imposing a short custodial sentence the court should consider whether an even shorter period might be equally effective especially in view of today's prison overcrowding. (Times Law Reports 21 August 1998)