R v AB: Clarifying the Limits of Sentence Severity in Retrials under the Criminal Appeal Act 1968

Introduction

The case of R v AB ([2021] EWCA Crim 692) concerns the sentencing of AB for historic sexual offences against his sister, BM, and his wife, CB. Convicted initially in 2017, AB appealed his convictions, leading to their quashing and a subsequent retrial. The crux of the appeal centered on whether the new sentence imposed after the retrial constituted a "sentence of greater severity" under paragraph 2(1) of Schedule 2 of the Criminal Appeal Act 1968 (CAA). This commentary delves into the legal principles established by this judgment, analyzing its implications for future sentencing in retrials.

Summary of the Judgment

Initially, AB was convicted of multiple sexual offences against BM and CB, receiving a total sentence of 14 years' imprisonment. His appeal in 2019 led to the quashing of all convictions and an order for retrial. In the 2020 retrial, AB was reconvicted for offences against BM but not CB, resulting in a 7 years 9 months' imprisonment sentence. AB appealed against this sentence, arguing it was unlawfully more severe than the original sentence. The Court of Appeal examined whether the new sentence exceeded the permissible severity under the CAA 1968 and ultimately dismissed the appeal, upholding the sentence as lawful.

Analysis

Precedents Cited

The judgment extensively references several pivotal cases to interpret "greater severity" within the CAA 1968 framework:

R v KPR [2018] EWCA Crim 2537: Highlighted that the difference in wording between section 11(3) and paragraph 2(1) Schedule 2 CAA does not materially affect their application concerning sentence severity.
R v Skanes [2006] EWCA Crim 2309: Addressed the "greater severity" concept, emphasizing that sentencing should consider the totality of offences and the punitive impact rather than mere length.
R v Dobson [2013] EWCA Crim 1416: Demonstrated that sentences should reflect individual convictions accurately, allowing adjustments to avoid penalizing for acquitted offences.
R v Bett [2017] EWCA Crim 1909: Asserted that new sentences post-retrial should be assessed independently but not exceed the original sentence's severity.

These precedents collectively guided the Court of Appeal in evaluating whether AB's new sentence violated the CAA 1968 stipulations.

Legal Reasoning

The core issue revolved around interpreting "greater severity" as opposed to simply "longer" sentences. The Court emphasized that "greater severity" encompasses more than duration; it involves the overall punitive impact, considering factors like parole eligibility, release provisions, and non-custodial orders.

Applying the principles from the cited precedents, the Court assessed the totality of AB's original and new sentences. They noted that the original 14-year sentence encompassed offences against both BM and CB, while the retrial only addressed offences against BM, resulting in a 7 years 9 months' sentence. The Court recognized that the absence of CB-related convictions in the retrial meant that the new sentence did not inherently reflect greater severity.

Furthermore, the Court acknowledged that the original sentencing involved the principle of totality to ensure proportionality across multiple offences, a factor not required in the retrial. This differentiation was crucial in determining that the new sentence did not surpass the original in severity.

Impact

This judgment sets a nuanced precedent for future cases involving retrials under the CAA 1968. It clarifies that courts must evaluate "severity" beyond mere sentence length, incorporating the broader punitive and rehabilitative aspects of sentencing. The decision underscores the importance of considering the totality of offences and the context of previous sentences, ensuring that retrial sentences are just and proportionate.

For legal practitioners, this case reinforces the necessity of a comprehensive analysis when appealing sentences post-retrial, focusing on the qualitative aspects of sentencing rather than solely quantitative measures.

Complex Concepts Simplified

Paragraph 2(1) Schedule 2 of the Criminal Appeal Act 1968

This provision stipulates that when a defendant is retried after an appeal, the new sentence must not be more severe than the original one. "More severe" is interpreted not just by the length of imprisonment but by the overall punitive impact, which includes factors like parole eligibility and additional orders.

Principle of Totality

The principle of totality ensures that when sentencing for multiple offences, the aggregate sentence reflects the overall culpability without being unduly harsh. It prevents disproportionate imprisonment by considering all offences collectively rather than stacking sentences for each offence individually.

Sentence of Greater Severity

Unlike simply a longer sentence, a sentence of greater severity involves any aspect that increases the punitive effect on the offender. This can include stricter parole conditions, additional non-custodial orders, or other factors that enhance the sentence's overall impact.

Conclusion

The R v AB judgment provides a critical examination of what constitutes a "sentence of greater severity" under the CAA 1968. By emphasizing the holistic assessment of sentencing, the Court of Appeal ensures that retrial sentences remain just and proportionate. This decision reinforces the judiciary's commitment to fair sentencing practices, balancing punitive measures with rehabilitative intentions.

Legal practitioners must now approach retrial sentencing with a comprehensive understanding of severity, ensuring that all aspects of the sentence are scrutinized against original convictions. This case not only clarifies existing legal standards but also enhances the framework for future judicial decisions in complex retrial scenarios.