If you want to be sure of staying out of prison, don’t ask the judge to suck your d***

In any contested drug case there is always a drugs “expert”. They are police officers who have worked on the drugs squad for a year or two and they have then generally completed an intensive course on the uses of controlled drugs in the United Kingdom. Thus qualified as expert witnesses, unlike ordinary witnesses they are allowed togive their opinions on drugs matters. They can say, for example, that such and such a quantity of drugs is, in their experience, inconsistent with personal use, or that scales, deal lists, cling film and small plastic bags are typical accoutrements of the drug dealer.

They will generally place a value on any drugs that have been found, and the more zealous ones take a pride in calculating the hundreds of thousands of pounds of profit that could theoretically be realised by cutting and selling any drugs found “at street level.” They almost always point out, in a rather snide way that you are likely to be short changed by drug dealers because “they are not known for their generosity” (an observation that in my experience holds equally true for police drugs experts). Despite the vast profits that are theoretically available, there is often a stark contrast between the miserable, sordid and poverty-stricken lives led by the drug-sozzled dealers that it is usually my lot to represent, and the vast sums of money that the police experts calculate they could be earning.

Part of the reason for that contrast no doubt comes down to the peculiar economics of drug dealing. Certainly there are vast profits to be made, but seldom – at least in my experience – by the dealers towards the bottom of the drugs pyramid. Whether that is because they are always in debt, because they smoke away their profits, or because, as happens surprisingly often, someone else simply nicks their stock, I don’t know. But in some cases they fail to make money, or at least to do so consistently, simply because they are very, very stupid.

This seems to be the case with the Sledden brothers who found themselves in front of Judge Beverley Lunt and were lucky enough to get a suspended sentence at the Burnley Crown Court a few weeks ago. Their particular stupidity took the form of posting obscenities on Facebook about the judge shortly after they received what they clearly regarded as unexpectedly lenient sentences. They had been expecting gaol sentences of around 3 years.

The Sleddens, who had previous drugs convictions, were convicted of supplying cannabis from two houses in Accrington, one of which was also occupied by their father, William, who was himself given an eight month suspended sentence for allowing the dealing to take place. According to the prosecution:

Police had repeatedly raided both 70 and 32 Hopwood Street between May and September 2014 ….

Each time the officers found small amounts of cannabis, either belonging to one of the Sleddens, or in the pocket of associates who had been at the Hopwood Street addresses.

Mr Farley said the real evidence in the case came from mobile phone text messages, on phone attributed to the defendants, where customers would ask for either quarter or half-ounce deals.

Even though the brothers were obviously being targeted by the police, in another demonstration of their stupidity, they had drawn further attention to themselves by “speeding around the streets of their estates in a gold Land Rover Discovery”.

No doubt they were sensibly advised, and when charged they pleaded guilty more or less immediately, thus entitling them to a one third discount off what the judge thought would otherwise be the proper sentence. She gave both brothers two year sentences but then suspended them for two years.

The thought process that judges are meant to go through before suspending a sentence is this: first decide on the length of the sentence, and then decide whether there are grounds to suspend it. Judges do not (or should not) pass a longer prison sentence than the crime demands merely because they are suspending it.

In this case Judge Lunt presumably thought that without the guilty pleas she would have given the brothers 3 years. Applying the official Sentencing Guidelines, this suggests that she assessed they were playing something between a “significant” and a “leading” role in a street drug dealing business.

The law does not allow a sentence of three years to be suspended.

However, once the reduction in sentence for the guilty plea was applied her sentence came down to two years, the longest prison sentence which the law allows to be suspended. Even so, it is likely that the decision to suspend was on something of a knife edge. Generally speaking, the closer a prison sentence gets to two years the less likely it is that a judge will find reasons to suspend it.

In the Sleddens’ case one reason for the judge’s leniency, apparently, was that during the period between arrest (which took place at the end of 2014) and sentence the police had continued to watch them and had not noticed them dealing in drugs.

The other was that the judge believed that they were both “remorseful and contrite.”

Remorse and contrition were not evident in the brothers’ reactions shortly after they left court.

Daniel posted on Facebook:

“Cannot believe my luck 2 year suspended sentance beats the 3 year jail yes pal! Beverly Lunt go suck my dick.”

Samuel posted in much the same vein:

“What a day it’s been Burnley crown court! Up ur ass aha nice 2 year suspended fuk the 3 year in forest bank”

The posts came to the attention of the prosecution, which brought the case back before what I am sure was now a very po-faced judge. The Facebook posts were immediately deleted, and Daniel replaced it with a grovelling (and correctly spelt) apology, which patently owed something to sound legal advice but (at least in the judge’s view) very little to genuine remorse:

“Want to say how sorry I am for what I wrote about Judge Lunt and my sentence. I was very lucky not to be sent to prison and I was very stupid to have written what I did. I want to say sorry to Judge Lunt and to anyone else who was upset or offended by my thoughtless post which I did not mean.”

Generally speaking, once a judge has pronounced sentence that is the end of her involvement in a case. The only way a sentence can normally be altered is if there is an appeal by the defendant, or an Attorney-General’s reference of the sentence (a prosecution appeal against an unduly lenient sentence). A judge cannot simply change her mind a few days later and increase a sentence. For obvious reasons, finality in sentencing (as in all judicial decisions) is – all things being equal – a good thing. I shan’t trouble you with them, but for those that like that sort of thing there are various Latin maxims that broadly speaking say you shouldn’t be put in jeopardy twice for the same offence.

However, there are exceptions. One of these is where an obvious mistake has been made: for example (and it has happened), a judge might send someone to gaol even though the offence for which he was convicted does not carry a prison sentence. If the error is spotted within 56 (until recently it was 28) days then Section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 allows the Judge to “vary or rescind” the sentence.

The provision is not just for correcting obvious legal errors. It can also be used for correcting a sentence that was passed on a manifestly false basis. The leading case, Hart¹, concerned a defendant who had attacked a policeman with a studded belt. After his conviction he told the sentencing court that he was about to go to Italy with his girlfriend in order to start a new career making gravestones.

The judge was duly impressed. Many judges are delighted to find a good reason to keep someone out of prison, and a nice new girlfriend and a job starting on Monday are for that reason time-honoured staples of the plea in mitigation. They have the great advantage that their existence is usually rather difficult to disprove. The judge decided that the prisoner was on the way to becoming a reformed character – and if not reformed then a problem for the Italians – and suspended the sentence.

Foolishly, after leaving court Mr Hart did disprove his mitigation by bragging that he had conned the judge. The story of being about to make a new start in Italy, gravestones, girlfriend and all, was pure invention. He was overheard by the Bedfordshire Times which ran the the story a few days later under the headline: “I conned the judge boasts freed punk.” He was brought back to court and the judge cancelled the suspended sentence and sent him straight to prison.

He appealed and Lord Lane – a tough Lord Chief Justice – said this:

“Where someone makes it known after the event that he, as this appellant put it, has “conned the court,” in other words told lies to the court and has thereby escaped his just punishment, that is one of the plain cases for which [this section] is designed.”

Although the Court of Appeal very much wanted to uphold the judge’s sentence it found that it could not do so. Mr Hart’s luck was in again. What neither prosecution, defence, trial judge nor even the appeal judges had spotted was the relatively straightforward point that Mr Hart had been brought back to court 29 days after the original sentence, and the law required any variation to take place within 28 days. He was saved by the calendar. Lord Lane and his colleagues were forced to allow his appeal, and re-suspend the sentence. Mr Hart owed this second escape to “the perspicacity of Mrs Lynne Knapman [a lawyer in the Criminal Appeal Office] whose sharp eyes spotted the matter.”

However, whilst Mr Hart may have had a doubly lucky escape his case established the principle that where a Judge has imposed a sentence on the basis of false mitigation it can be increased if the deception comes to light shortly afterwards.

This is the principle that Judge Lunt invoked when the Sleddens were brought back before her (well within the 56 day limit).

She noted the “offensive and sexual content directed at me as a judge, and also as a woman judge.” Oh dear.

She observed:

“These were not private entries in a diary. They were placed on Facebook with the intention that others should and would read them, and if they wished, would share them. So it was a limitless audience.

“Their content is clearly indicative of how they really felt about appearing in court for this particular offence. Their tenor was boastful and jeering and the only reasonable inference was, they thought they had somehow fooled and misled the court.”

It is likely that the brothers will now try to appeal their sentence. Their argument will be that the judge should not have changed her original sentence merely because of the Facebook posts. It is, after all, only human to feel delight when your expected 3 year prison sentence becomes a 2 year suspended sentence, and in the excitement of the moment it is perhaps all to easy to say things that you don’t really mean and later regret. What’s more, they will perhaps say, “just because we were happy not to be going to prison, that doesn’t mean that we were not remorseful for our crimes.”

It is true that the Sleddens’ case is not quite as clear cut as Mr Hart’s. It is not quite as obvious as it had been with Mr Hart that they were telling lies about their remorse. It might be possible to give them the benefit of the doubt; their post-sentence obscenities might still be compatible with genuine remorse. They might draw some limited comfort from the case of Powell² where the Court of Appeal slapped down a judge who had doubled a defendant’s 3 month sentence after he – if you will forgive the expression – “kicked off” in the dock. There, the Court of Appeal said:

“That, with respect to the learned judge, was plainly wrong. There is a perfectly clear procedure laid down for dealing with a case of contempt. It should be dealt with separately from the initial offence: not by way of review of sentence for the offence for which the offender is before the court. The offender should be told what the charge against him is, i.e. the nature of the contempt alleged. He should be asked whether he admits it or not. He should be offered legal representation if he has not any. If he has, then this legal representative should be given the opportunity to speak on his behalf. He should be given the opportunity to make representations himself, and then, if sentence is to be passed, it should be passed for the contempt and not for the original offence. All this is clearly stated in text books, not least in Archbold.”

But I doubt that will help them much. The Sleddens could not be charged with contempt because their insolence was not actually directed at the judge in court, so the Powell solution was not an option. Moreover, unlike the Sleddens, Mr Powell does not appear to have made his remorse and contrition central to his mitigation; in fact he had disputed the case and protested his innocence.

Until 2011 it might have been possible to charge them with the ancient offence of scandalising the judges. The last prosecution for that offence in England was of the editor of the Birmingham Evening Argus in 1931, for describing Mr Justice Darling, fairly accurately, as “an impudent little man in horsehair” and “a microcosm of conceit and empty-headedness”. But for better or worse, the offence has now been abolished.

If they were not to be seen to get away with insulting and jeering at the judge there was no real alternative to bringing them back to court and varying the sentence. Judges are entitled to believe or disbelieve defendants who insist that they are remorseful. My guess is that – should the case reach the Court of Appeal – the Sleddens will not find it a sympathetic tribunal. Judge Lunt was entitled to suspend the sentence because of their remorse. She was also entitled to change her mind on the existence of that remorse.

Ultimately the Court of Appeal would ask itself two questions.

1. Was this sentence “manifestly excessive” (and it seems the brothers themselves were expecting three years);
2. Was it “wrong in principle?”

The Sleddens legal representatives will struggle to persuade the Court that Judge Lunt did anything wrong.

(All credit to the often derided Daily Star. Their report of the judge’s resentencing remarks was fuller than most, if not all, of their upmarket rivals)