Factual and Procedural Background
This opinion concerns an application for leave to appeal against sentence based on fresh medical evidence and for a long extension of time. The Appellant pleaded guilty to arson and had originally received a determinate sentence. The Attorney General referred the sentence to the Court of Appeal under section 36 of the Criminal Justice Act 1988 on grounds of undue leniency. The Court of Appeal increased the sentence to a discretionary life sentence. Subsequently, the Appellant was transferred to a special hospital where fresh medical evidence was obtained, suggesting that a hospital order with restriction would have been more appropriate at the time of the original offence and sentence. The current application raises the question of whether the Court has jurisdiction to entertain a further appeal on sentence after the Attorney General's reference has already been determined by the Court.
Legal Issues Presented
- Does the Court of Appeal have jurisdiction to entertain an appeal against sentence where the sentence has already been reviewed by the Court following an Attorney General's reference under section 36 of the Criminal Justice Act 1988?
- What is the scope and limitation of the Court's powers to hear subsequent appeals or applications for leave to appeal against sentence?
- Under what circumstances, if any, can the Court re-list or re-hear an appeal previously determined?
- What procedural directions should be given if leave to appeal and extension of time are granted in relation to fresh medical evidence?
Arguments of the Parties
Appellant's Arguments
- The Appellant contends that fresh medical evidence from a consultant forensic psychiatrist shows that he was suffering from a mental disorder at the time of the original offence and sentencing, which justifies a hospital order with restriction instead of a life sentence.
- The Appellant argues that this fresh evidence was not available at the time of the original sentencing or the Attorney General's reference hearing.
- He seeks leave to appeal and a significant extension of time to present this fresh evidence.
- The Appellant relies on the argument that the Court was misinformed at the Attorney General's reference hearing because it was assumed there was no mental health issue relevant to sentencing.
Crown's Arguments
- The Crown submits that the Court of Appeal's jurisdiction to entertain a second appeal after an Attorney General's reference is extremely limited and generally does not exist.
- It is argued that the statutory right of appeal is to be construed as allowing only a single appeal, and that the Attorney General's reference is part of the sentencing finality process.
- The Crown notes that fresh evidence which could not reasonably have been presented earlier should be considered by the Criminal Cases Review Commission rather than by way of a second appeal.
- The Crown emphasizes the importance of finality in sentencing and the need to avoid re-litigation of decided issues or second thoughts by the defendant.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Hodgson (1968) 52 Cr App R 113 |
Guidelines for imposing discretionary life sentences in arson cases |
Referenced to justify the discretionary life sentence imposed on the Appellant upon Attorney General's reference. |
| Attorney General's reference 32 of 1996 (Whittaker) [1997] 1 Cr App R 261 |
Principles on unduly lenient sentences and appropriate sentencing powers |
Used to support the Court's power to increase the sentence on Attorney General's reference. |
| R v Pinfold (1998) 87 Cr App R 15 |
Limits on the right to multiple appeals; principle of finality in criminal proceedings |
Applied to hold that the statutory right of appeal does not extend to more than one appeal in the same case. |
| R v Grantham (1969) 55 Cr App R 369 |
Similar principle limiting multiple appeals in courts martial context |
Supported the proposition that the right to appeal is limited to a single appeal, reinforcing Pinfold. |
| R v Neal [1999] 2 Cr App R (S) 353 |
Separate right of appeal against subsequent orders such as confiscation |
Distinguished to show that "subsequent proceedings" in section 9(1) apply to later Crown Court orders, not to appeals after Attorney General's reference. |
| R v Berry (No 2) [1990] 1 WLR 125 |
Residual power to re-list and rehear appeals where previous hearing was a nullity or injustice occurred |
Considered and rejected as applicable to fresh evidence claims absent procedural defect or nullity. |
| R v Cross [1973] 2 All ER 920 |
Power to consider appeal further before order is given effect where court was misinformed |
Referenced to show limits on re-hearing appeals and that this power is narrowly construed. |
| R v Daniel [1977] 1 All ER 620 |
Power to re-list appeals due to administrative error depriving appellant of hearing |
Used to illustrate the narrow circumstances where re-listing is permitted. |
| R v Medway (1976) 62 Cr App R 85 |
Power to treat notice of abandonment as nullity if appellant did not genuinely intend it |
Analogy used to explain limited circumstances for re-hearing appeals, not extending to fresh evidence claims. |
| R v Rowan [2007] EWCA Crim 1624 |
Finality of sentencing process after Attorney General's reference; limited scope for re-listing |
Applied to confirm that the Court's decision on Attorney General's reference is generally the end of sentencing proceedings. |
Court's Reasoning and Analysis
The Court began by acknowledging the unusual procedural posture of the case, where the sentence had already been reviewed and increased by the Court on an Attorney General's reference. The central question was whether the Court retained jurisdiction to entertain a further appeal against sentence based on fresh evidence.
The Court analyzed the statutory provisions governing appeals against sentence, particularly sections 9 and 11 of the Criminal Appeal Act 1968. It noted that while the statutory language does not expressly limit the number of appeals, established case law, including R v Pinfold and R v Grantham, supports the principle of finality by limiting the appellant to a single appeal.
The Court further considered whether the phrase "or in subsequent proceedings" in section 9(1) could extend to appeals against sentences passed by the Court on an Attorney General's reference and concluded that it does not. Such words preserve appeals against later Crown Court orders but do not allow a second appeal after the Court's own sentence revision.
The Court examined the very narrow exceptions permitting re-listing or re-hearing appeals where the original hearing was a nullity or there was a procedural injustice, such as administrative error. It found these exceptions inapplicable to fresh evidence claims, which do not amount to procedural defects or nullities.
The Court rejected the Appellant's argument that the Court was misinformed at the Attorney General's reference hearing due to absence of mental health evidence, holding that fresh evidence alone does not justify a second appeal.
It was noted that the Criminal Cases Review Commission exists as a statutory mechanism to address cases involving fresh evidence after the conclusion of appeals, but only after the statutory right of appeal has been exhausted.
Importantly, the Court held that the statutory right of appeal under section 9 remains extant and unexercised by the Appellant because the Attorney General's reference is a separate statutory process. Thus, jurisdiction to entertain an appeal after an Attorney General's reference is not removed as a matter of law, but the Court emphasized the high threshold for granting leave and extension of time in such cases.
The Court stressed that leave to appeal will only be granted where there is good reason, including significant injustice, and that applications seeking to re-litigate decided issues or based on second thoughts will normally be refused.
Finally, the Court gave procedural directions for the future conduct of the appeal, including timelines for lodging applications to adduce fresh evidence, potential medical examinations, and requirements for attendance of witnesses at the hearing.
Holding and Implications
The Court held that the Court of Appeal retains jurisdiction to entertain an appeal against sentence even after the sentence has been reviewed and varied on an Attorney General's reference under section 36 of the Criminal Justice Act 1988.
However, the Court made clear that this jurisdiction is subject to the normal requirements for leave to appeal and extension of time, which will only be granted in exceptional circumstances demonstrating good reason and potential injustice. The Court emphasized the importance of finality in sentencing and that the decision on an Attorney General's reference is generally the end of the sentencing process.
The practical implication is that while a defendant may apply to appeal after an Attorney General's reference, the Court will scrutinize such applications rigorously, particularly where the defendant could have raised the grounds earlier. Fresh evidence alone does not guarantee leave to appeal.
No new precedent was established beyond reaffirming existing principles on appeal jurisdiction and finality. The Court provided detailed procedural directions to manage any future hearing on the fresh evidence, ensuring a structured and efficient process.