| Crime — Sentence — Appeal against sentence — Extended sentence wrongly imposed — Mandatory requirement to impose indeterminate sentence — Whether Court of Appeal bound to impose increased sentence — Criminal Appeal Act 1968, s 11(3) — Criminal Justice Act 2003, ss 225, 226
R v Reynolds; R v Lubwama; R v Webb; R v Honore; R v Slaney; R v Downing; R v Skerritt; R v Thompson [2007] EWCA Crim 538
CA: Latham LJ, Mitting and Teare JJ: 8 March 2007
Subject to the exceptions in s 36 of the Criminal Justice Act 1988 and s 29 of the Criminal Appeal Act 1968, the only power which the Court of Appeal, Criminal Division, had to interfere with an appellant’s sentence was that contained in s 11(3) of the 1968 Act so that on an appeal against an extended sentence which had been wrongly imposed the appellate court was not bound by the mandatory provisions of ss 225 and 226 of the Criminal Justice Act 2003 to impose an indeterminate sentence.
The Court of Appeal, Criminal Division, so stated when considering appeals against sentence by Michael Edwin Reynolds, Abdul Musisi Lubwama, John Paul Webb, James Honore, Edward Slaney, Craig Mark Downing, Akee Skerritt and Amelio Thompson, all of which raised issues as to the jurisdiction of the appellate court.
LATHAM LJ, giving the judgment of the court, said that if it became apparent during the course of an appeal that the sentencing court had failed to appreciate, for whatever reason, that either a mandatory sentence should have been imposed, or alternatively an indeterminate sentence should have been imposed as opposed to an extended sentence, the question arose as to what the Court of Appeal should do. In the case of offences to which Chapter 5 of the Criminal Justice Act 2003 applied there were many appellants whose appeals were essentially based on a challenge to the judge’s conclusion as to whether or not the criteria of dangerousness had been met. If an appellant appealed on that basis against an extended sentence which was wrongly imposed for a “serious” offence, was the court bound by reason of the mandatory provisions of ss 225 or 226 of the 2003 Act to impose an indeterminate sentence, or was the court precluded from doing so because to do so would be beyond its powers under s 11(3) of the Criminal Appeal Act 1968? The firm conclusion was that s 11(3) of the 1968 Act prevailed. The only express power that the Court of Appeal, Criminal Division, had to increase sentences was that contained in s 36 of the Criminal Justice Act 1988 on an application by the Attorney General, and the limited power in s 29 of the 1968 Act to give directions as to loss of time. It seemed that the justification for the application of the cap to appeals against sentence generally was equally applicable to appeals against sentence involving consideration of the mandatory sentence provisions of any statute. The 1968 Act was preceded by the Criminal Appeal Act 1966 which repealed the power given by the Criminal Appeal Act 1907, its predecessor, to the appellate court to increase sentence. The major justification for that change was that it was considered that the power to increase sentences was a significant deterrent to defendants who wished to challenge their sentence. In the present context many appeals were essentially based on the argument that the judge was wrong to conclude that the appellant met the criteria of dangerousness. If the consequence of seeking to persuade the court of that, was to risk an increase in sentence from an extended sentence, say, to an indeterminate sentence, the very mischief which the1968 Act was intended to avoid would be reintroduced by a side wind in that category of case.
|
Appearances: Simon Heptonstall (Registrar of Criminal Appeals) for Reynolds and Webb; Sheryl Nwosa (Registrar of Criminal Appeals) for Lubwama; Patrick Maggs (Registrar of Criminal Appeals) for Honore; Andrew Thompson (Registrar of Criminal Appeals) for Slaney; Francis Laird (Registrar of Criminal Appeals) for Downing; Vanessa Marshall (Registrar of Criminal Appeals) for Skerrit; Graham Blower ((Registrar of Criminal Appeals) for Thompson; David Perry QC (Crown Prosecution Service) in all cases, for the Crown; with David Evans in the case of Reynolds; with Alexis Lewis in the case of Thompson; with William Chapman in the case of Webb, Lubwama and Honore.
|
