CRIME ? Court of Appeal (Criminal Division) ? Jurisdiction ? Sentence ? Application for leave to appeal against sentence ? Court of Appeal previously imposing life sentence on Attorney General?s reference ? Defendant seeking to appeal against sentence on basis of fresh medical evidence ? Whether defendant?s right of appeal extant ? Whether Court of Appeal having jurisdiction to hear defendant?s application ? Criminal Appeal Act 1988, s 9(1) (as amended by Criminal Justice Act 1988, s 170, Sch 15, paras 20, 21)

Regina v Hughes (James); [2009] EWCA Crim 841; [2009] WLR (D) 160

CA: Hughes LJ, King J, Judge Radford: 14 May 2009

The words ?or in subsequent proceedings? in s 9(1) of the Criminal Appeal Act 1968 did not enable a defendant to appeal against a sentence passed by the Court of Appeal on an Attorney General?s reference, but his right of appeal still remained extant and unexercised under the section.

The Court of Appeal, Criminal Division, so held when giving directions on an application by the defendant, James Hughes, for leave to appeal against a sentence for offences of arson, originally for five years? imprisonment, which had been increased by the Court of Appeal (Mantell LJ, Jack and Hedley JJ) on 20 February 2003 following an Attorney General?s reference to life imprisonment with a total minimum term (including the period to be served under the breach of licence provisions) of three years and nine weeks.

S 9(1) of the Criminal Appeal Act 1968, as amended, provides: ?A person who has been convicted of an offence on indictment may appeal to the Court of Appeal against any sentence (not being a sentence fixed by law) passed on him for the offence, whether passed on his conviction or in subsequent proceedings.?

HUGHES LJ, giving the reserved judgment of the court, said that the defendant sought leave to appeal on the basis of fresh medical evidence which showed that instead of a life sentence, there should have been a hospital order with restriction. The very unusual feature of the case was that the defendant?s sentence had already been considered by the Court of Appeal, having been referred by the Attorney General under s 36 of the Criminal Justice Act 1988. The closing words of s 9(1) of the 1968 Act would need to be more explicit before they were capable of enabling a defendant to appeal against a sentence passed by the Attorney General on an Attorney General?s reference. There was, however, an important difference between a sentence which had been considered upon an Attorney General?s reference and one which had been the subject of an appeal by the defendant. In the latter case the defendant had exercised the right of appeal given to him by s 9 of the 1968 Act whereas in the former, that right remained extant and unexercised. It was one thing to say that the statutory right of appeal could not be construed as extending to a right of two or more appeals, as the Court of Appeal had already said in a number of cases. It was quite another, however, to say that the statutory right to a single appeal given by s 9 of the 1968 Act was removed when the Attorney General brought the case to the Court of Appeal. It would make good sense if the statute were amended to achieve that result, but such amendment would be necessary. Accordingly, the court?s power to entertain an appeal against sentence was not, as a matter purely of jurisdiction, removed by the fact that there had been an earlier reference of the sentence by the Attorney general under s 36 of the 1988 Act. It by no means followed that the court would in fact entertain an appeal, or grant the necessary extension of time, which would only be granted where there was good reason to do so and where the defendant would otherwise suffer significant injustice. In the very small number of instances in which there had been an earlier reference by the Attorney General, it would be a highly significant factor that it was then open to the defendant to mount any argument that he wished to the effect that his sentence was too long or otherwise wrong in principle. Leave was likely to be refused in any case in which what he now sought to argue could and should have been argued then. Wholly unmeritorious applications which were no more than an attempt to ventilate second thoughts or to relitigate decided issues were likely to be met by an order for loss of time under s 29 of the 1968 Act. In all but the wholly exceptional case the decision of this court upon a reference by the Attorney General was as much an end of the sentencing process as is its decision upon an application by the defendant under section 9.

Appearances: Mark George (instructed by RMNJ Solicitors, Birkenhead) for the defendant; Parmjit-Kaur Cheema (instructed by Crown Prosecution Service, Preston District) for the Crown.

Reported by: Georgina Orde, barrister