Judicial Independence, Open Justice and Advance Sentence Indication

Updated 06/11/07

• Principle
  • Openness in Considering the Acceptance of Pleas
  • Advance Sentence Indication
  • Advance Sentence Indication and Dangerous Offenders
  • Conduct of Casework
• Guidance
  • Examples
• Procedure
• Useful links
• Annex A
• Annex B

Principle

Judicial independence is fundamental to the Rule of Law

The integrity of the Criminal Justice System depends upon a fair and public hearing by an independent and impartial tribunal.

Justice must not only be done but must be seen to be done.

These principles must be followed by all CPS staff in the conduct of casework.

Established liaison takes place between the CPS and the judiciary to discuss purely administrative matters to ensure the criminal justice system as a whole works efficiently on matters of general importance. This will often be in the form of "court-user" meetings. However, this in no way compromises the independence of the court process in specific cases.

Openness in Considering the Acceptance of Pleas

The Attorney General's Guidelines on the Acceptance of Pleas issued on December 7, 2000 highlighted the importance of transparency in the conduct of justice. The basis of plea agreed by the parties in a criminal trial is central to the sentencing process. An illogical or unsupported basis of plea can lead to the passing of an unduly lenient sentence and has a consequential effect where consideration arises as to whether to refer the sentence to the Court of Appeal under section 36 of the Criminal Justice Act 1988.

The Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise [2005] expand upon and now replace the Guidelines issued on the 7 December 2000 - see Annex A.

They give guidance on how prosecutors should meet the objectives of protection of victims' interests and of securing fairness and transparency in the process.

They take into account the guidance issued by the Court of Appeal (Criminal) Division in R -v- Beswick [1996] 1 Cr.App.R. 343, R -v- Tolera [1999] 1 Cr.App.R. 25 and R v Underwood [2005] 1 Cr.App.R 178.

They complement the Bar Council Guidance on Written Standards for the Conduct of Professional Work issued with the 7^th edition of the Code of Conduct for the Bar of England and Wales and the Law Society's Professional Conduct Rules.

When considering the acceptance of a guilty plea prosecution advocates are also reminded of the need to apply "The Farquharson Guidelines on the Role and Responsibilities of the Prosecution Advocate".

See also Legal Guidance>Sentencing>Sentencing and Ancillary Orders

Advance Sentence Indication

In <R -v- Goodyear, [2005] EWCA Crim 888>, the Lord Chief Justice sitting in the Court of Appeal (Criminal) Division issued guidelines that amount to the introduction of a formalised procedure of advance sentence indication. The principles of the judgment modify the rule of practice adopted by courts following the decision in (R -v- Turner 1970 2 QB 321).

Further guidance on the procedure is contained at Annex B below.

See also <Policy Bulletins> 40/2005

Advance Sentence Indication and Dangerous Offenders

In R v Kulah [2007] EWCA Crim 1701, the Court of Appeal (Criminal Division) made the following observations about the relationship between the "dangerous offender" provisions of the Criminal Justice Act 2003 and the procedure in cases where a Goodyear indication might be sought:

• As a matter of general principle, the guidance set out in Goodyear holds good, notwithstanding the introduction of the dangerous offender provisions of the Criminal Justice Act 2003.
• At the point (before plea) when a sentence indication would be sought, it would often be the case that the judge would not be in possession of the information necessary to enable him/her to make the assessment of risk required by sections 225,226,227 or 228 of the Criminal Justice Act 2003.
• As Goodyear makes clear, the judge is under no obligation to give an indication, and has an unfettered right in this regard.
• If the judge decides to give an indication where an assessment of future risk remains to be made, he should make the following matters clear:

(a) The offence (or one or more of them) is a specified offence listed in Schedule 15, Criminal Justice Act 2003, bringing into operation the "dangerous offender" provisions contained in Part 12 Chapter 5 of that Act.

(b) The information and materials necessary to undertake the assessment of future risk which is required by those provisions are not available and that the assessment remains to be conducted.

(c) If the defendant is later assessed as "dangerous", the sentences mandated by the provisions - an indeterminate or extended sentence - will be imposed.

(d) If the defendant is not later assessed as "dangerous", the indication relates in the ordinary way to the maximum determinate sentence which will be imposed.

(e) If the offender is later assessed as "dangerous", the indication can only relate to the notional determinate term which will be used in the calculation of the minimum specified period the offender would have to serve before he may apply to the Parole Board to direct his release; or, in a case where an extended sentence is the only lawful option, it will relate to the appropriate custodial term within the extended sentence (that is, the indication does not encompass the length of any extension period during which the offender will be on licence following his release).

(f) If an indeterminate sentence is mandated by the provisions, the actual amount of time the offender will spend in custody is not within the control of the sentencing judge, only its minimum.

The Court pointed out the obligation on the prosecution, imposed in Goodyear, to draw to the attention of the judge any minimum or mandatory sentencing requirement. That obligation includes a duty to inform the judge that the offence charged is a specified offence and of the requirement to undertake the risk assessment required by the relevant section of the Criminal Justice Act.

The Court further observed that it would be desirable, wherever possible, that the judge who had given a Goodyear indication should himself sentence the defendant. If it was unavoidable that a different judge had to pass sentence, the sentencing judge should be provided with a transcript of the Goodyear indication.

When prosecuting any sentencing hearing where the "dangerous offender" provisions apply, and where there has been a previous Goodyear indication made by a different judge, the prosecuting advocate should ensure that the exact terms of the indication are available to the court. In particular, it will be important to make it clear whether any indication made had addressed the issue of risk assessment, or had deferred it until the sentencing hearing.

More detailed information about this case is contained in <Policy Bulletin 81/2007>

Conduct of Casework

CPS must do nothing to suggest 'back-door', secret communication to improperly influence the court. This means:

• Casework issues requiring the court's ruling are normally to be dealt with in open court in the presence of the defendant and public.

• Submissions must be made either orally in court, or if by formal written communication, must be copied to the defence.

• Communications between the prosecution and the court that are case specific, relating to live cases, and take place outside a court hearing, must be limited to purely administrative matters known to the defence.

• There are rare exceptions. The most commonly encountered will be "ex parte" disclosure applications without notice - Type III Public Interest Immunity (PII) applications. Any exceptions must be clearly established in law and in practice.

See The Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise [2005] with the updated paragraph C6, inserted in June 2007 by Addendum.

Guidance

CPS staff must never seek to influence the judiciary, other than through representation in court or within established limits of liaison on purely administrative matters. Avoid any conduct that may give the appearance of the prosecution seeking to influence the court in an improper manner.

Examples

This list is not exhaustive

CPS staff should not comment to court officials, other than during a hearing on the integrity of another party to the proceedings. This includes defendant(s), witnesses, counsel, solicitors, jurors, judges, magistrates and administrators.

Any attempt to persuade the court on a point in issue must only be done through advocacy in court and/or skeleton arguments copied to the defence.

A Crown Prosecutor should not privately communicate with a legal adviser to the Magistrates between hearings when a case is ongoing to question the lawfulness of the court's ruling. The Divisional court criticised this occurrence in a 1996 case.

There should be no communication to the court regarding the venue of a particular case or which judge should hear the case. A 1997 Court of Appeal judgement was critical of the CPS.

A preliminary test for all casework staff to apply is whether the proposed contact with the court (judge, magistrate or court administration), is within established formal practice. Disclosure of communications with courts to the defence will go part way to avoiding the suggestion of inappropriate conduct.

The following are examples when communications with courts outside of a court hearing will be improper:

• Privately suggesting to a court administrator that a particular court venue or judge should hear the case;
• Privately suggesting to a court official that the defendant is attempting to manipulate the court process;
• Providing addition grounds for a remand in custody that are not made known to the defence;
• Suggesting privately to a court official that if the court rules in a particular way an appeal will be lodged, knowing the clerk may tell the court this and thereby influence the court's consideration;
• Privately suggesting to a magistrate that a severe sentence should be imposed;
• Discussion of a live case at a court users' liaison meeting.

These are only examples: with all communications with courts, CPS staff must consider whether the proposed communication is proper or not. Some communications will be improper even if disclosed to the defence, if they are an inappropriate attempt to influence the court.

Procedure

Only clearly established formal practices must be used in all case-specific liaisons with courts while cases are still live.

Appropriate out-of-court communications with courts must be limited to purely administrative matters that are part of the routine of criminal litigation, are not adversarial, and are known to the defence, such as:

• Lodging an indictment
• Service of notice of additional evidence
• Providing name of counsel
• Providing skeleton arguments
• Providing case summaries
• Providing witness availability
• Liaison to re-arrange listing with consent of defence.

For the procedure in exceptional circumstances when an ex parte approach to the Court is permissible, such as in a Type 3 PII/disclosure application, see legal guidance on disclosure.

It is sometimes the case that a convicted defendant has provided information to the police and that the defendant wishes this fact to be brought to the attention of the court before sentence. This procedure in relation to a mitigated sentence for an informant (police source) ("text") is not affected by this guidance.

Useful links

Code for Crown Prosecutors

Policy Bulletin 40/2005

Policy Bulletin 81/2007

R -v- Goodyear, [2005] EWCA Crim 888

(R -v- Turner 1970 2 QB 321)

Annex A

Attorney General's Guidelines
on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise

A Foreword

A1. Prosecutors have an important role in protecting the victim's interests in the criminal justice process, not least in the acceptance of pleas and the sentencing exercise. The basis of plea, particularly in a case that is not contested, is the vehicle through which the victim's voice is heard. Factual inaccuracies in pleas in mitigation cause distress and offence to victims, the families of victims and witnesses. This can take many forms but may be most acutely felt when the victim is dead and the family hears inaccurate assertions about the victim's character or lifestyle. Prosecution advocates are reminded that they are required to adhere to the standards set out in the Victim's Charter, which places the needs of the victim at the heart of the criminal justice process, and that they will be subject to a similar obligation in respect of the Code of Practice for Victims of Crime when it comes into force.

A2. The principle of fairness is central to the administration of justice. The implementation of Human Rights Act 1998 in October 2000 incorporated into domestic law the principle of fairness to the accused articulated in the European Convention on Human Rights. Accuracy and reasonableness of plea plays an important part in ensuring fairness both to the accused and to the victim.

A3. The Attorney General's Guidelines on the Acceptance of Pleas issued on December 7, 2000 highlighted the importance of transparency in the conduct of justice. The basis of plea agreed by the parties in a criminal trial is central to the sentencing process. An illogical or unsupported basis of plea can lead to the passing of an unduly lenient sentence and has a consequential effect where consideration arises as to whether to refer the sentence to the Court of Appeal under section 36 of the Criminal Justice Act 1988.

A4. These Guidelines, which expand upon and now replace the Guidelines issued on the 7 December 2000, give guidance on how prosecutors should meet these objectives of protection of victims' interests and of securing fairness and transparency in the process. They take into account the guidance issued by the Court of Appeal (Criminal) Division in R -v- Beswick [1996] 1 Cr.App.R. 343, R -v- Tolera [1999] 1 Cr.App.R. 25 and R v Underwood [2005] 1 Cr.App.R 178. They complement the Bar Council Guidance on Written Standards for the Conduct of Professional Work issued with the 7^th edition of the Code of Conduct for the Bar of England and Wales and the Law Society's Professional Conduct Rules. When considering the acceptance of a guilty plea prosecution advocates are also reminded of the need to apply "The Farquharson Guidelines on The Role and Responsibilities of the Prosecution Advocate".

A5. The Guidelines should be followed by all prosecutors and those persons designated under section 7 of the Prosecution of Offences Act 1985 (designated caseworkers) and apply to prosecutions conducted in England and Wales.

B General Principles

B1. Justice in this jurisdiction, save in the most exceptional circumstances, is conducted in public. This includes the acceptance of pleas by the prosecution and sentencing.

B2. The Code for Crown Prosecutors governs the prosecutor's decision-making prior to the commencement of the trial hearing and sets out the circumstances in which pleas to a reduced number of charges, or less serious charges, can be accepted.

B3. When a case is listed for trial and the prosecution form the view that the appropriate course is to accept a plea before the proceedings commence or continue, or to offer no evidence on the indictment or any part of it, the prosecution should whenever practicable speak to the victim or the victim's family, so that the position can be explained. The views of the victim or the family may assist in informing the prosecutor's decision as to whether it is the public interest, as defined by the Code for Crown Prosecutors, to accept or reject the plea. The victim or victim's family should then be kept informed and decisions explained once they are made at court.

B4. The appropriate disposal of a criminal case after conviction is as much a part of the criminal justice process as the trial of guilt or innocence. The prosecution advocate represents the public interest, and should be ready to assist the court to reach its decision as to the appropriate sentence. This will include drawing the court's attention to:

• any victim personal statement or other information available to the prosecution advocate as to the impact of the offence on the victim;
• where appropriate, to any evidence of the impact of the offending on a community;
• any statutory provisions relevant to the offender and the offences under consideration;
• any relevant sentencing guidelines and guideline cases; and
• the aggravating and mitigating factors of the offence under consideration;

The prosecution advocate may also offer assistance to the court by making submissions, in the light of all these factors, as to the appropriate sentencing range.

In all cases, it is the prosecution advocate's duty to apply for appropriate ancillary orders, such as anti-social behaviour orders and confiscation orders. When considering which ancillary orders to apply for, prosecution advocates must always have regard to the victim's needs, including the question of his or her future protection.

C. The Basis Of Plea

C1. The basis of a guilty plea must not be agreed on a misleading or untrue set of facts and must take proper account of the victim's interests. An illogical or insupportable basis of plea will inevitably result in the imposition of an inappropriate sentence and is capable of damaging public confidence in the criminal justice system.

C2. When the defendant indicates an acceptable plea, the defence advocate should reduce the basis of the plea to writing. This should be done in all cases save for those in which the issue is simple or where the defendant has indicated that the guilty plea has been or will be tendered on the basis of the prosecution case.

C3. The written basis of plea must be considered with great care, taking account of the position of any other relevant defendant where appropriate. The prosecution should not lend itself to any agreement whereby a case is presented to the sentencing judge on a misleading or untrue set of facts or on a basis that is detrimental to the victim's interests. There will be cases where a defendant seeks to mitigate on the basis of assertions of fact which are outside the scope of the prosecution's knowledge. A typical example concerns the defendant's state of mind. If a defendant wishes to be sentenced on this basis, the prosecution advocate should invite the judge not to accept the defendant's version unless he or she gives evidence on oath to be tested in cross-examination.

C4. The prosecution advocate should show the prosecuting authority any written record relating to the plea and agree with them the basis on which the case will be opened to the court.

C5. It is the responsibility of the prosecution advocate thereafter to ensure that the defence advocate is aware of the basis on which the plea is accepted by the prosecution and the way in which the prosecution case will be opened to the court.

C6. In all cases, to ensure clarity before the court the prosecution advocate should consider committing to writing the aggravating and mitigating factors that will form the opening of the prosecution case. Equally, the defence advocate should consider reducing to writing the mitigating factors relied upon on behalf of the accused. Where the issues are complex or there is scope for misunderstanding the prosecution advocate must commit to writing the aggravating and mitigating factors that will form the opening of the prosecution case. The basis of plea document is intended to deal only with the circumstances of the offence. Personal mitigation should not appear in it.

C7 When the prosecution advocate has agreed the written basis of plea submitted by the defence advocate, he or she should endorse the document accordingly. If the prosecution advocate takes issue with all or part of the written basis of plea, he or she should set out in writing what is accepted and what is rejected or not accepted. Where there is a dispute about a particular fact which the defence advocate believes to be effectively immaterial to the sentencing decision, the difference should be recorded so that the judge can make up his or her own mind. The signed original document should be made available to the trial judge and thereafter lodged with the court papers, as it will form part of the record of the hearing.

C8. Where a defendant declines to admit an offence that he or she previously indicated should be taken into consideration, the prosecution advocate should indicate to the defence advocate and the court that, subject to further review, the offence may now form the basis of a new prosecution.

C9. Where the basis of plea cannot be agreed and the discrepancy between the two accounts is such as to have a potentially significant effect on the level of sentence, it is the duty of the defence advocate so to inform the court before the sentencing process begins. There remains an overriding duty on the prosecution advocate to ensure that the sentencing judge is made aware of the discrepancy and of the consideration which must be given to the holding of a Newton hearing to resolve the issue. The court should be told where a derogatory reference to a victim, witness or third party is not accepted, even though there may be no effect on sentence.

C10. Whenever an agreement as to the basis of plea is made between the prosecution and defence, any such agreement will be subject to the approval of the trial judge, who may of his or her own motion disregard the agreement and direct that a Newton hearing should be held to determine the proper basis on which sentence should be passed.

D. Sentence Indications

D1. Only in the Crown Court may sentence indications be sought. Advocates there are reminded that indications as to sentence should not be sought from the trial judge unless issues between the prosecution and defence have been addressed and resolved. Therefore, in difficult or complicated cases, no less than seven days notice in writing of an intention to seek an indication should normally be given to the prosecution and the court. When deciding whether the circumstances of a case require such notice to be given, defence advocates are reminded that prosecutors should not agree a basis of plea unless and until the necessary consultation has taken place first with the victim and/or the victim's family and second, in the case of an independent prosecution advocate, with the prosecuting authority.

D2. If there is no final agreement about the plea to the indictment, or the basis of plea, and the defence nevertheless proceeds to seek an indication of sentence, which the judge appears minded to give, the prosecution advocate should remind him or her of the guidance given in R v Goodyear (Karl) [2005] EWCA 888 that normally speaking an indication of sentence should not be given until the basis of the plea has been agreed or the judge has concluded that he or she can properly deal with the case without the need for a trial of the issue.

D3. If an indication is sought, the prosecution advocate should normally enquire whether the judge is in possession of or has access to all the evidence relied on by the prosecution, including any victim personal statement, as well as any information about relevant previous convictions recorded against the defendant.

D4. Before the judge gives the indication, the prosecution advocate should draw the judge's attention to any minimum or mandatory statutory sentencing requirements. Where the prosecution advocate would be expected to offer the judge assistance with relevant guideline cases or the views of the Sentencing Guidelines Council, he or she should invite the judge to allow them to do so. Where it applies, the prosecution advocate should remind the judge that the position of the Attorney General to refer any sentencing decision as unduly lenient is unaffected. In any event, the prosecution advocate should not say anything which may create the impression that the sentence indication has the support or approval of the Crown.

E. Pleas In Mitigation

E1. The prosecution advocate must challenge any assertion by the defence in mitigation which is derogatory to a person's character, (for instance, because it suggests that his or her conduct is or has been criminal, immoral or improper) and which is either false or irrelevant to proper sentencing considerations. If the defence advocate persists in that assertion, the prosecution advocate should invite the court to consider holding a Newton hearing to determine the issue.

E2. The defence advocate must not submit in mitigation anything that is derogatory to a person's character without giving advance notice in writing so as to afford the prosecution advocate the opportunity to consider their position under paragraph E1. When the prosecution advocate is so notified they must take all reasonable steps to establish whether the assertions are true. Reasonable steps will include seeking the views of the victim. This will involve seeking the views of the victim's family if the victim is deceased, and the victim's parents or legal guardian where the victim is a child. Reasonable steps may also include seeking the views of the police or other law enforcement authority, as appropriate. An assertion which is derogatory to a person's character will rarely amount to mitigation unless it has a causal connection to the circumstances of the offence or is otherwise relevant to proper sentencing considerations.

E3. Where notice has not been given in accordance with paragraph E2, the prosecution advocate must not acquiesce in permitting mitigation which is derogatory to a person's character. In such circumstances, the prosecution advocate should draw the attention of the court to the failure to give advance notice and seek time, and if necessary, an adjournment to investigate the assertion in the same way as if proper notice had been given. Where, in the opinion of the prosecution advocate, there are substantial grounds for believing that such an assertion is false or irrelevant to sentence, he or she should inform the court of their opinion and invite the court to consider making an order under section 58(8) of the Criminal Procedure and Investigations Act 1996, preventing publication of the assertion.

E4. Where the prosecution advocate considers that the assertion is, if true, relevant to sentence, or the court has so indicated, he or she should seek time, and if necessary an adjournment, to establish whether the assertion is true. If the matter cannot be resolved to the satisfaction of the parties, the prosecution advocate should invite the court to consider holding a Newton hearing to determine the issue.

HER MAJESTY'S ATTORNEY GENERAL

Dated this day of October 2005

Attorney General's Chambers
9 Buckingham Gate
London SW1E 6JP

Annex B

Advance Sentence Indication
R -v- Goodyear CCA 20April 2005

1. The Lord Chief Justice sitting in the Court of Appeal (Criminal) Division in considering an appeal against sentence in R -v- Goodyear issued guidelines that amount to the introduction of a formalised procedure of advance sentence indication. The principles of the judgment modify the rule of practice adopted by courts following the decision in R -v- Turner 1970 2 QB 321.

Procedure

Scope

2. The Advance Sentence Indication procedure is only applicable to cases before the Crown Court. Cases before the Magistrates Court will be confined to the statutory arrangements in Schedule 3 of the Criminal Justice Act 2003 that has yet to be implemented.

Acceptable plea

3. The Advance Sentence Indication is only available to the defence where there is an acceptable plea the basis of which has been committed to writing. Prosecutors are reminded that they must ensure that Section 6 of the Farquharson Guidelines as to The Role of and Responsibilities of the Prosecution Advocate are followed and that the necessary consultation takes place both with victims or victim's family and in the case of an independent prosecution advocate, with the CPS.

4. The guidelines make clear that an indication should not be sought on a basis of hypothetical facts. Where there is a dispute about a particular fact and the defence believes the point to be effectively immaterial to the sentencing decision, the difference should be recorded so that the judge may decide.

5. The guidelines are emphatic that a Judge should not be invited to give an indication on what would be, or what would appear to be a "plea bargain". This is expanded upon in paragraph 67 of the judgment.

Request for an indication

6. As the request for indication comes from the defence, the prosecutor is obliged to react, rather than initiate the process.

7. On the basis of an acceptable plea, the defence may request an advance indication of sentence at any stage of the proceedings, including in trial. However, the guidelines recommend that ordinarily the procedure will take place at the Plea and Case Management Hearing. This is usually the first opportunity for the defendant to plead guilty and take advantage of the maximum sentence discount applying the guidance set down by the Sentencing Guideline Council.

8. Whilst the Judge may remind a defendant that he may wish to take advantage of the procedure he may not insist that an indication takes place. A Judge may also decline to give an indication or decide to defer giving an indication to later in the trial process.

9. Where there are issues in the case that are considered "complicated or difficult", the defence are required to give proper notice in writing to the prosecution and the court of their intention to seek an advance sentence indication. In such cases no less than 7 days notice in writing of an intention to seek an indication should normally be given. If an application is made without notice when it should have been given, any adjournment that may flow as a consequence could result in the defendants discount for an early plea being reduced.

10. Whilst the guidelines are silent as to what defines " complicated or difficult" it is clear from the guidelines that any issues between the prosecution and defence must be resolved before the Judge will accede to a request for an indication. Prosecutors will need to be alive to the need to ensure that the court are made aware of any unresolved issues and that such hearings should not take place in such circumstances.

11. Paragraph 69 of the Judgment provides guidance as to the procedure where a defendant is unrepresented.

The Hearing

12. The hearing should be conducted in open court with a full recording of the proceedings, with both sides represented and in the presence of the defendant.

13. Reporting restrictions will apply in order to safeguard a situation where the indication is not accepted and the matter moves to trial.

14. It is anticipated that the process should not take up a disproportionate amount of court time, as the procedure does not require an opening by the prosecution or a mitigation plea by the defence.

15. The role of the prosecutor described in paragraph 70 of the Judgment is reproduced in full:

(a) We must expressly identify a number of specific matters for which the advocate for the prosecution is responsible.

(b) If there is no final agreement about the plea to the indictment, or the basis of plea, and the defence nevertheless proceeds to seek an indication, which the judge appears minded to give, prosecuting counsel should remind him of this guidance, that normally speaking an indication of sentence should not be given until the basis of the plea has been agreed, or the judge has concluded that he can properly deal with the case without the need for a Newton hearing.

(c) If an indication is sought, the prosecution should normally enquire whether the judge is in possession of or has had access to all the evidence relied on by the prosecution, including any personal impact statement from the victim of the crime, as well as any information of relevant previous convictions recorded against the defendant.

(d) If the process has been properly followed, it should not normally be necessary for counsel for the prosecution, before the judge gives any indication, to do more than, first, draw the judge's attention to any minimum or mandatory statutory sentencing requirements, and where he would be expected to offer the judge assistance with relevant guideline cases, or the views of the Sentencing Guidelines Council, to invite the judge to allow him to do so, and second, where it applies, to remind the judge that the position of the Attorney General to refer any eventual sentencing decision as unduly lenient is not affected.

(e) In any event, counsel should not say anything which may create the impression that the sentence indication has the support or approval of the Crown.

19. In giving an indication the judge will normally be confined to the maximum sentence if a plea of guilty were tendered at the stage at which the indication is sought.

20. The court rejected the suggestion that as part of the procedure the Judge should indicate the maximum level of sentence following a conviction by a jury. The rationale for adopting this approach is described at paragraph 54 of the Judgement.

21. Once an indication is given it is binding and remains binding on the judge who has given it. It also binds any other judge who may become responsible for the case.

22. It is envisaged that where a defendant accepts the indication, the court will proceed to take the plea and at that stage lift reporting restrictions. However, the guidelines allow a defendant "a reasonable opportunity" to consider his/her position but provides no indication as to what would amount to "reasonable" although this is likely to be considered on a case-by-case basis.

23. If after a "reasonable opportunity" the defendant does not plead guilty, the indication will cease to have effect.

24. Paragraph 57 of the Judgement expands upon the approach where a Judge declines to give an indication.

Section 36 CJA 1988 - Unduly Lenient Sentences

25. The guidelines are clear that where the prosecutor has addressed their responsibilities in accordance with paragraph 70 of the Judgment, the discretion of the Attorney General to refer a sentence would be wholly unaffected by the Advance Sentence Indication process.

26. Where the guidelines are breached by the prosecutor with regard to an action that may indicate or convey support for or approval of the sentence indication, then in seeking leave by the Attorney to apply under the Act the court will examine each case in the light of the action taken by the prosecutor.

27. In cases where there is a fundamental breach as envisaged above, Chief Crown Prosecutors should inform the Director without delay.