Criminal Conduct Not Charged Can Be Taken Into Account In Sentencing Where It Has Been Relevant To Another Charge And Scrutinised At Trial

R. v Khan (Imran Mohammed) [2009] EWCA Crim 389; [2009] Crim. L.R. 744

The appellant (K) appealed against a sentence imposed following his conviction of doing an act tending or intended to pervert the course of justice. Whilst being interviewed for the purpose of a pre-sentence report, K had offered the probation officer (P) a sum of money to give him a good report, showing her a carrier bag full of cash. Although he was not charged in relation to alleged threats made on a later date, evidence concerning them was admitted as evidence rebutting his defence that his offer had been a joke. K argued that the judge had been wrong to treat the threats, which he had denied, as an aggravating feature in sentencing him.

Appeal dismissed in part. Where conduct capable of founding a criminal charge but denied by the defendant was relevant to another charge being considered by a jury and where such conduct had been the subject of specific scrutiny at trial, then unless reliance on that conduct was inconsistent with a verdict, a judge could take it into account in relation to sentence, provided he was satisfied that it had been established to his satisfaction to the criminal standard, R. v Davies (Tarian John) [1998] 1 Cr. App. R. (S.) 380 CA (Crim Div) and R. v Cooke (Paul Adam) (1987) 9 Cr. App. R. (S.) 116 CA (Crim Div) considered. There could be areas of uncertainty as to the applicability of that principle, such as where a person in a position of trust was convicted of sexual activity. The absence of consent, although irrelevant to guilt, would be a seriously aggravating feature in relation to sentence, but its treatment as such where consent had not been an issue specifically addressed at the trial might be thought to contravene the general principle that a defendant should not be punished for conduct with which he had not been charged and which he denied. In the instant case, the relevant aggravating feature was not only addressed but was a specific issue at trial, having regard to the nature of the defence. It was that fact which permitted the judge to take it into account.

Did you know?

Of all the regions in England and Wales, London has the highest level of recorded crime at 124 offences per 1,000 population.