ALL OPTIONSUntil 11/06/2009 magistrates when ordering a pre sentence report prior to a defendant`s being sentenced, probably by another bench, would use the Sentencing Guidelines in conjunction with the facts of the case, knowledge of the offender`s antecedents and advice if necessary from the legal advisor to complete the appropriate form used by the probation service to base its assessment of suitable disposal. However after the judgement in Nicholas – v – Chester Magistrates` Court that situation subtly changed.

It had been good practice in order to focus the thoughts of the probation officer involved in interviewing the defendant to indicate the bench`s general sentencing range. Care had to be taken insofar as one bench could not undermine another`s sentencing options. For that reason when custody was even a remote possibility or, at the other end of the spectrum, there was concern that the matter was so serious that our sentencing powers [max 6 months] were insufficient the report requirement form would be endorsed “all options” or “all options including sending to Crown Court”. The corollary was that for an offence and/or an offender at the bottom end of the scale when no reasonable bench could possibly consider the option of custody such endorsements were omitted. That situation which to all concerned was rational and realistic was changed by Nicholas. Subsequently we were told that every pre sentence report to be submitted had to be endorsed “all options open”. It doesn`t take more than a modicum of thinking to appreciate what has been the result. Writers of probation reports whose hands are already tied by protocols, cash availability and time were forced to include appropriate comments if custody were imposed. And just as surely as night follows day those comments would be more or less, “If custody is imposed we would suggest the sentence be suspended and the following community requirements imposed……………”

Most of our legal advisors have agreed with me and some like minded colleagues of the futility of this direction from above. It has taken the situation from the fire to the frying pan. In order to preserve the principle of one bench not tying the hands of another the case of Nicholas has taken us to Wonderland. When I have been on a bench where such decisions have to be made and we are all perfectly sure that there is no possibility whatsoever that custody is appropriate or justified we have not submitted an “all options” report.

Last month I was sitting in the domestic violence remand court. Before us was E.L. He was a young man who had pushed his mother against a wall whilst in a drunken argument. He was of previous good character, there was no injury caused to his victim, his mother, who had earlier made a withdrawal statement. The previous bench had sensibly requested in addition to a regular report an alcohol assessment report which is a prelude to making an alcohol treatment requirement as part of a community sentence. We had the request form in front of us. On being presented the report we noted that there was no additional report because, the PSR continued, funding had run out for the usual agency and arrangements with another agency were not yet in place. The PSR writer also spent many words informing us why custody should be suspended in addition to other possibilities. We were puzzled. The offender was not in the custody bracket. Indeed his was a very rare DV case where there was at least an argument for a financial penalty. On closer inspection of the PSR request form we noted at the bottom in writing and ink completely different from the rest of the report the letters “AOO”. This was put to the senior probation officer in court for an explanation whereupon he readily admitted that he had added the letters…..his abbreviation for “all options open”. He apologised profusely and told us that he had exceeded his function.

Readers will judge for themselves after reading Nicholas whether or not the original bench in that case were at fault. But let us agree with LORD JUSTICE STANLEY BURNTON and MR JUSTICE WILKIE. Is the resultant direction assisting in the improving of good practice in sentencing at magistrates` courts?