Charlie Myatt and pupil Eliza Harris consider whether unproven allegations should ever be admissible in Pre-Sentence Reports?

Introduction

Pre-Sentence Reports (“PSRs”) are a crucial part of the sentencing process. They are often the deciding factor in a finding of dangerousness, or whether a custodial or community sentence is more suitable. But what is the position for a client when the PSR author raises unfounded allegations as evidence of previous offending? What grounds of objection do you have, as Defence counsel, when a Prosecutor invites the judge to rely on unfounded allegations in their assessment of dangerousness? As a Prosecutor, what are the limits to material you can put before the judge? This article, by Charlie Myatt and Eliza Harris, sets out the parameters of section 308(d) of the Sentencing Act 2020 (“SA 2020”). It considers the extent to which a judge can consider unproven allegations, matters on which no further action (NFA) has been taken, acquittals, and police intelligence in their assessment of dangerousness, and in wider sentencing considerations.

The law

According to R v Abdul [2024] EWCA Crim 236 [30],  Section 308 SA 2020 effectively “mirrors” the previous statutory provisions for assessing dangerousness under section 239 of the Criminal Justice Act (“CJA”) 2003 and reads:

(2) In making that assessment, the court—

(a) must take into account all the information that is available to it about the nature and circumstances of the offence,

(b) may take into account all the information that is available to it about the nature and circumstances of any other offences of which the offender has been convicted by a court anywhere in the world,

(c) may take into account any information which is before it about any pattern of behaviour of which any of the offences mentioned in paragraph (a) or (b) forms part, and

(d) may take into account any information about the offender which is before it.

Interpretation of “information”

Subsections 2(a), (b) and (c) restrict a judge’s considerations to findings grounded exclusively in the fact of convictions. Conversely, subsection (d) gives the judge a wide and discretionary ambit to consider “any information” about the offender. The leading authority is R v Considine (Lawrence Philip) [2007] EWCA Crim 1166, ruling that that “information” is neither restricted to “evidence”, nor limited to the offender’s previous convictions or pattern of behaviour established by them [27]. It confirms that “as a matter of statutory construction, relevant information bearing on the assessment of dangerousness may take the form of material adverse to the offender which is not substantiated or proved by criminal convictions” [27]. However, Considine also confirms that the court cannot consider such material if the defendant disputes the allegations [35].

So, does section 308(2)(d) SA 2020 permit a judge to find dangerousness based on unproven allegations cited in a PSR?

The role of Probation

The Probation Service itself has acknowledged the delicate tightrope it walks between assessing dangerousness and protecting the public. The PSR author in R v Badawi [2021] EWCA Crim 1729 recognised that “it is for the court to assess the relevance or otherwise of non-conviction antecedents” but also that it would be “remiss to disregard non-conviction behavioural precedents” in a PSR [22]. If unproven allegations are put before a judge either by Probation or by Prosecution counsel, what, if any, weight should a judge afford them?

NFA’d incidents – R v Abdul [2024] EWCA Crim 236

The appellant pleaded guilty to two counts of aggravated burglary, both committed against escorts at knife point. When sentencing, the judge referred to two similar alleged incidents that were never charged. The first took place three days after count 1 and concerned a knifepoint robbery against an escort. A phone used to contact the complainant was linked to the appellant at his trial for counts 1 and 2. The second took place two days after this, in the same hotel, involving an escort, a knife, and valuables being taken. Both alleged incidents were NFA’d.

Despite their striking similarities, the Court of Appeal found that the judge had been wrong to consider them in his assessment of dangerousness. The appellant gave no comment interviews and denied the offences. This ruling suggests that where a defendant has consistently denied liability or involvement in unproven matters, it will be wrong for a sentencing judge to consider, or be invited to consider them, even where the similarities are compelling.

Acquittals – R v Badawi [2021] EWCA Crim 1729

Despite acknowledging that it had been “unproven” [23], a judge relied upon the circumstances surrounding an appellant’s previous acquittal for rape to support his finding of dangerousness and referred to it like a conviction:

“In addition, it is arguable that what you did to [the complainant] was opportunistic and predatory behaviour. That you should do it twice seems to me to make it perfectly plain that that is exactly what this was.” [23]

The Court of Appeal ruled that neither the author of the PSR nor the judge should have taken the acquittal into account when forming conclusions about dangerousness [38].

Police Intelligence

Similarly, a sentencing judge cannot consider intel, reports of alleged offences, or even warnings received from the police if the defendant disputes them. In R v Dennis [2008] EWCA Crim 2954, the appellant had received (and contested) an informal insight warning from Norfolk Police four years before the instant offending. The Court of Appeal found that the judge should not have relied upon this unless he was “satisfied that the issue can be resolved in a manner that is fair to the defendant” [15].

Yet, even where an appellant has disputed previous allegations, there are circumstances in which they can nevertheless be relied upon. The judge’s reliance upon police reports of NFA’d domestic violence in R v R [2010] EWCA Crim 2589 was endorsed by the Court of Appeal because the appellant had admitted liability for them in his PSR interview. Although he subsequently retracted his admissions, the judge had been entitled to conclude that he had made them and could therefore rely on them in his decision [17].

What is the solution? Is there a place for s.78?

Ultimately, if sufficient evidence for a finding of dangerousness is before the court, reliance on previous unproven allegations or police intelligence will not invalidate such a conclusion (R v X [2021] EWCA Crim 1069; R v Emeh [2022] EWCA Crim 91). For example, in Emeh, a judge’s finding of dangerousness was approved given that he would have reached the same conclusion without relying on the facts of the appellant’s previous murder trial (which was stayed for abuse of process) [18-19]. However, he was only entitled to take it into consideration because this information was already before the court in the instant case [19].

One solution for Defence advocates could be an application under section 78 of the Police and Criminal Evidence Act 1984. Section 78 applies to “evidence on which the prosecution proposes to rely” in “any” proceedings. A compelling s.78 argument could be grounded in a defendant’s right to a fair trial for offences he is accused of. The Court of Appeal ruled in R v Farrar [2006] EWCA Crim 3261 that Parliament’s intention behind the statutory provisions for assessing dangerousness was not to “to deprive a defendant of the right to a trial by judge and jury or magistrates’ court of a discrete offence by implication [17].” Relying upon unproven allegations to support further findings about an offender necessitates a finding that those unproven allegations are true without allowing the evidence to be tested.

Conclusion

Ultimately, the deciding factor for relying on non-conviction material will be whether the defendant has admitted them. A defendant who admits previous allegations but then retracts his admission may open the gates for a tribunal to rely on it in any event. In this case, Defence counsel’s best option may be an argument under s.78 given that the tribunal has effectively made a finding of fact against the defendant without testing the evidence.

Although this issue most commonly arises in assessments of dangerousness, the principles apply to sentencing exercises more generally. Quite apart from the dangerousness assessment, the judge in Badawi was criticised for relying on his previous acquittal as an aggravating factor when calculating sentence. However, if a sentencing judge can show that they would have reached that sentence or made that finding of dangerousness without considering unproven allegations, the finding is likely to stand (Emeh).

About the authors

Charlie Myatt was called to bar in 1993. He prosecutes and defends. Charlie is instructed in cases of a serious and often complex nature including homicide, serious sexual offences and large drugs conspiracies. Within the last 12 months he has been instructed as sole counsel and as leading counsel in cases of murder.

Eliza Harris commenced her pupillage in Chambers in October 2024 and is now able to accept instructions.

To instruct Charlie or Eliza, please contact the clerks on 020 7404 1881 or via email here.