Appeals against Sentence

When a defendant is convicted, the sentence a judge passes is determined by many factors.  The judge will consider the type of offences a defendant was convicted of, what the facts of the case were, and what a particular defendant’s involvement was.  They will look at the sentencing guidelines for the offence, and apply the facts of the case to them, to ensure that similar offences are punished similarly, and different offences are punished differently. They will then look at any factors about the individual defendant that mean the defendant should get a more or less serious sentence.  Finally, if the defendant pleaded guilty or gave assistance to the prosecution authorities, the judge will apply a percentage reduction to the sentence.

This may appear simple in theory.  But what about when judges get it wrong?

Appeals from magistrates’ courts

Under s 108(1)(b) Magistrates’ Courts Act 1980 there is an automatic right of appeal from the magistrates’ court to the Crown Court.  This means that if a defendant is dissatisfied with their sentence they can try again in front of a Crown Court judge and two lay magistrates, in a complete re-hearing: they do not have to show that the sentence imposed by the magistrates’ court was wrong.  However, the Crown Court sentences from scratch.  This means that on appeal from the magistrates’ court to the Crown Court a sentence can be made more serious.

Despite this, there are limits to the sentence the Crown Court can impose.  Firstly, the Crown Court cannot pass a sentence which is higher than the statutory maximum sentence that the magistrates’ court could have passed.  In particular, the High Court held in the case of R v Bullock [1964] 1 Q.B. 491 that in “either-way” cases (cases that can be tried in the magistrates’ court or the Crown Court) the Crown Court cannot commit a person to itself for sentence, in order to be able to use the higher powers of sentence that the Crown Court would have if the trial had taken place in the Crown Court.  Secondly, unlike the Court of Appeal, the Crown Court cannot make a “loss of time” direction.

Appeals from the Crown Court

Unlike an appeal from the magistrates’ court to the Crown Court, there is no automatic right of appeal from the Crown Court to the Court of Appeal.  Instead, an appellant will have to show that they have grounds of appeal.  There are two broad grounds on which sentences might be overturned: where the sentence is “manifestly excessive”, and where the sentence is otherwise wrong in law.

It is worth noting at the outset that, in the eyes of the Court of Appeal, most judges get it right, most of the time.  However, there is a recognition that sometimes they do not.  So what should people do if they think their sentence is too long?

Sentences that are wrong in law

Appeals to the Court of Appeal in cases where a sentence is said to be wrong in law are often quite clear cut: either the sentence is wrong in law or it is not.  Examples may be where a judge has imposed a sentence which is higher than the statutory maximum; where a judge has imposed an extended determinate sentence despite the conditions not being met; or where a judge has imposed a sentence of imprisonment for public protection (“IPP”) for an offence committed before IPPs were introduced.  In these cases, the prosecution may even agree that the sentence was wrong in law, and may support the appeal.  The Court of Appeal will then look at how to restructure the sentence to make it right in law.

Sentences that are manifestly excessive

Appeals to the Court of Appeal in cases where a sentence is said to be manifestly excessive are more complicated.  In the old case of Nuttall (1908) 1 Cr App R 180, which the Court of Appeal continues to follow, Mr Justice Channell said:

This court will… be reluctant to interfere with sentences which do not seem to it to be wrong in principle, though they may appear heavy to individual judges.

In the later case of Gumbs (1926) 19 Cr App R 74, Lord Hewart, the Lord Chief Justice, made the point even more clearly:

“…this court never interferes with the discretion of the court below merely on the ground that this court might have passed a somewhat different sentence; for this court to revise a sentence there must be some error in principle.

As such, harsh sentences given out by Crown Court judges may well not be overturned on appeal.  However, sometimes the Court of Appeal recognises that sentencing judges do go too far, or do make mistakes.  In such cases, there is a right of appeal, which can result in a sentence being reduced.

Risks of appealing to the Court of Appeal

Before filing an appeal against sentence it is important to bear in mind that if the Court of Appeal considers that the appeal is plainly without merit, it can make a “loss of time” order, meaning that some of the time spent in custody will not count towards sentence.  It can alternatively make a costs order, meaning the appellant has to pay the costs of the appeal.  Although this power has rarely been used in practice,  its use is becoming more common.  Even if an appellant has been advised by their lawyers that they have grounds of appeal, the power can still be used.  As such, it is important that appellants receive expert advice before they appeal, and are aware of the risks.  However, in contrast to appeals to the Crown Court, the Court of Appeal cannot increase sentences if they refuse an appeal against sentence.

Before relying on any matter set out in this article, make sure to consult an expert to check that it is still up to date and how it applies to your case.