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Appealing against sentence

By David Wells and Stephen Field, from insidetime issue December 2009

Solicitor David Wells and Barrister Stephen Field explain the procedure for appealing against sentence and the powers held by the Court of Appeal


A person who is convicted of an offence at the Crown Court may Appeal against the sentence passed to the Court of Appeal, criminal division. Sentence includes any order made by a court when dealing with an offender. The procedure is commenced by lodging a form NG to the Crown Court passing sentence within 28 days. This document must be accompanied by the grounds of appeal and is then sent on to the Court of Appeal for consideration by a single judge.

There are many grounds upon which an appeal is lodged against sentence. What follows is just a summary of some of the more common grounds.

Sentence not justified by law:
The Court of Appeal will intervene when a sentence is passed which could not legally be passed. With the number of complex statutes we have nowadays dealing with sentence, mistakes are often made by Crown Court Judges and have to be corrected.

Sentence incorrect on a factual basis:
Newton hearings are very important in establishing the correct facts upon which to pass sentence. Where no determination of disputed facts takes place, and the sentencing judge does not make it clear which version of events he accepts, the Court of Appeal will proceed on the defendant’s account.

Judges remarks when sentencing:
The Court of Appeal may allow an appeal where it forms the view that the sentencing judge has taken into account irrelevant factors when deciding the appropriate sentence. Examples of this include where the judge indicates that he increased sentence because the defendant chose to plead not guilty, or because he chose to elect Crown Court trial. Irrelevant factors such as these might result in a reduction in sentence.

Matters improperly taken in to account:
Errors of fact or reliance on inadmissible evidence may justify an appeal being lodged. Similarly, the Court of Appeal can admit new evidence/fact relevant to the issue of sentence such as new expert evidence or prison governor’s reports on good progress in prison.

Procedural errors:
Where a sentencing judge passes sentence without the assistance of a pre-sentence report where it was appropriate to have done so, an appeal ought to be lodged. Incorrect details about a defendant’s previous antecedent history may also result in a successful appeal.

Failure to honour a legitimate expectation:

A legitimate expectation can be created either by expressing it in words or by conduct, for example, the adjournment of a case for reports in circumstances which creates a legitimate expectation of a non-custodial sentence. Moreover, indications on sentence given by one judge are binding on another judge in the event that a different judge passes sentence; assuming of course no change in circumstances. The exact wording of the judge is of crucial importance in cases of this type.

Disparity of sentence:
An appeal can be lodged where a co-defendant receives a different sentence. This does not form an individual head of appeal, and the argument will need to focus on the issue of the appellant’s sentence having been wrong in principle or manifestly excessive (see below). The test here appears to be …’would right thinking members of the public, with full knowledge of all the relevant facts and circumstances, learning of this sentence consider that something had gone wrong with the administration of justice?’ [Fawcett (1983) 5 Cr App R (S) 158].

Similarly, a failure to distinguish between defendants when one has more powerful mitigation than the other is capable of mounting a sentence appeal.

Sentence wrong in principle or manifestly excessive:

A sentence will be generally regarded as being wrong in principle if the sentence was one which could be seen as not being in the appropriate form, for example the defendant was not eligible for a prison sentence.

The most common ground advanced by way of appeal against sentence is the argument that a sentence is ‘manifestly excessive.’ The fact that a sentence is merely severe will not ordinarily be sufficient. An appeal is only likely to be successful if the sentence passed is one considered to be outside the range for the offence and the offender. To assist judges, sentencing guidelines are issued to determine the appropriate sentence, and any departure from those guidelines ought to be appealed.

Mentally disordered and young persons:
Generally speaking, it is wrong to sentence a mentally disordered person to prison, or to a punitive, as opposed to a therapeutic sentence. In sentencing juveniles, regard should be had of the welfare principle.

General guidance:
      The time limit of 28 days in which to lodge an appeal can be extended in the interests of justice. Where a different Solicitor advises on the merits of an appeal, the 28 day limit is very often extended without difficulty.

-       Bail can be applied for pending an urgent appeal, especially in cases where short prison sentences are passed.

-       Funding is often available for Solicitors to advise on the merits of an appeal.

Conclusion
In any appeal against sentence, the Court of Appeal may quash the sentence and substitute any other sentence or order that the court deems appropriate. The court is obliged to exercise this power, taking the case as a whole, and ensure that the appellant is not more severely dealt with on appeal than he was dealt with by the court below.

Appeal cases are often difficult and complex but very rewarding. A successful appeal can have huge implications for a person, and very often appellants get only one decent opportunity to get things right. Whilst the Court of Appeal may not have the power to increase sentence, appeals plainly without merit can invoke the loss of time provision. On the basis that some appeals can take quite some time to reach a full court hearing, a careful approach should be taken at every stage of the appeal process and specialist advice and assistance should be sought.

* David Wells is a Senior Partner and head of crime at Wells Burcombe LLP. Stephen Field is a Barrister at 1 Pump Court, head of the Crime Group and Head of Prison Law Team.



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Comments about this article

1/9/2011 Keith Hume -


My wife has been disqualified from driving for 6 months having pleaded guilty to the charges of Failing to report a traffic accident within the prescribed time (24 hours or as soon as possible
6 Penalty points and a further 6 points for Driving without due care and attention and therefore with a total of 12 penalty points she was sentenced to Disqualification for 6 months
I wrote the Bromley Magistrate's Court 3 weeks before the case was due in Court, pleading mitigation and notifying the court that I, would speak for her.
In court I was told I could not speak for my wife as I had no formal legal experienc.
My wife is 79 years old and I am a few weeks short of my 82st birthday.
I was informed by the Magistrate that I could only advise my wife and only she could be recognised.
However when I tried to do this I was continually interrupted by either rhe Clerk or the magistrate and the only mitigation they recognised was that my wife ahd never had a previous driving accident in the 34 years she had been driving. The accident occured when my wife's car struck another vehicle which was parked on a double yellow line thereby contravening the Regulations. Furthermore a charge of Failing to Stop and exchange details was changed, in court, to simply failing to stop. My wife had pleaded guilty to the charge of failng to exchange detaiols on the basis that when giving details she gave correct Insurance Company and name but inadvertantly gave our doctord phone number instead of hers. Now however sher pleaded not guilty to Not Stopping. The court then stated that the prosecution had not offered any evidence and the matter was dropped. I should state the driver of the wrongl parked vehicls did not give my wife any details at all. There is much more evidence to show that some of the evidence was contradictory but every time i tried to instruct my wife I was interrupted by the Court Clerk or Magistrate.
HAS MY WIFE GOT GROUNDS FOR AN APPEAL ON THE BASIS THAT SHE/WE WERE NOT ALLOWED TO GIVE REASONS FOR ASKING FOR MITIGATION OTHER THAN HER RECORD UP TO THIS INCIDENT

24/2/2012 jane -

my personal opinion is, that your wife should of stopped and you cant talk on her behalf as you werent present. regardless of how the car was parked has nothing to with the way your wife drove and she should of maneuvered around the parked vehicle, she should need to take another test if she doesn't no that also, is she fit enough to drive also due to the fact shes giving out her doctors number!

4/4/2012 daniel farrell -

my friend was sentanced to life with a recomended 13 years to serve along with 4 others who got different sentances ranging between 14 - 22 years. it was a very public case now i dont agree with things they have done but i think the sentances past on my brother an his friends was wrong they never actually murdered anybody or actually fired a gun they got convicted of ordering people to do it for them my brothers part in it all was he was the safe house for the gun. i no you shouldnt go on other peoples sentances but there was a man who has just been convicted of selling guns to numerous amounts of people as the police have stated that there was 72 guns sold an there is 52 still on the streets today this man has just been sentanced to 11 years recommended 2 years less than my friend how is this the justice system is all wrong as i said i dont agree with any of it i just want the right sentances to be past on people .

18/6/2012 denise williams -

a friend of mine has recntly been given a 20mth prison sentencs for hitting a pedestrian in his vehicle whilst under the influence of alcohol, his wife gave birth to their baby just one week before his conviction, this is his first offence , can he make an appeal?

6/7/2012 Cameron Family - facebook.com/justiceforalec

Moderator's Comment:
We are sorry but we cannot publish information about specific cases. The contents of this post have been passed to our Editorial team to see if they can make any suggestions.

23/9/2012 darren beck -

my girlfriend an a mother of two children with disabilities, was sentence to 27mth in prison for theft from a home she was cleaning at the time stated as theft in breach of trust ,she suffers from sever depresstion an at time was taking high dosages of antidepressants ,also self medication of street valium, ive read sentencing guidelines ,for simlar cases ,an starting points are 18wks custody /high 12mths in high degree of trust, also the guilty plee guideline state a 1/3 off if plead at first reasonable opportunity /after trial date set is 1/4,witch her plea was made before trial date set ,she had 8mth suspended for 18mths witch she nealy completed 3 or 4 mths short of, we lodge for a N.G to appeal the lengh of sentence ,an reduce the 27mths to 12/18mths

26/11/2012 holly -

hi, i was wondering a friends of my was involved in a case and its a bit complicated. the things is that someone was in cousterdy and the person was sent to orison for 6 year but now the person will be serving for 3 years only. but as we know that they take half of the sentence off if they behave and all that crap stuff. and he now is in prison and my friend didnt know that she could appeal so then he could get longer time in prison as to what the eprson did to my friend was unfair and very wrong and shes a victim.
So my question to you is can she appeal if she is under 18 plus it will be 1 yr in January 2013since that person has being in prison. can she do anything about it???
thanks

19/12/2012 ceriann -

Previously my fiance was remanded in prison when I was 3months pregnant with our first little boy. While he was in we applied for 2 bail applications 1 failed then we won the other when I was around 8months pregnant on compassionate grounds so he could be there at the birth! His trial was 17th july only a month into parent hood! Well he had a few issues with our house getting robbed the day we was suppost to bring our son home so we had to live seprate for abit because he was getting threatned also! He went to 4 days out of 5 at his trial an decided not to go on the last day scared as me and our baby could be in danger! Mean while about a month ago my so called family put my fiance in! I wouldn't mind but we just wanted our last xmas together with our new born!! But the judge gave him 8years 8months there wasn't no solid evidence as the solicitor told us previously the case was falling apart and he had no previouse what's so ever this was for conspiricy to burgle!!! And am so angry with the judge because we was fine and he was an elecrician he just got in with the rong crowd and ended up looking like the one that done everyfin so the judge said!!!! I just think there all heartless!! A man on the news only got 4 yearz for murder!!! What the hell this country needs to fix up and the judges get paid to much for wrecking other innocent peoples lifes!!! Sorry but the justice system is a load of s***t

2/2/2013 Yorkie

A Crown Court gaves incorrect charges of rape to a newspaper and was published.
The Crown Court came out with the same old tawdry excuses, a bit like a 'sop' but nevertheless he was still sentenced to prison.
Should he have faced a crown court decision under this prejudice? Was it a judicial cover up?
yorkie

20/6/2013 Sophie spahia -

Hi my husband was sentence last week for cultivation e was sentenced to 28 months he was on bail for 8 months he obeyed his bail and everything else asked of him could he appeal his sentence what was giving to him and do you think he can win if he does our solicitor didnt prepare us for the sentence he got he told us he would get around the 18 month sentence now there going for a collection order thing in September and his telling us he could get more time added on what can I do to help him
Thanks

4/4/2014 mand -

can you appeal a prison sentence after the 28 days? its been nearly 5months since conviction

2/5/2014 woodiewoo4

Can a prisoner appeal a sentence given out by his parole board after he was recalled to prison

30/7/2014 Mg80

My bf was released on bail for nearly two years following theft from his employer which ultimately was money belonging to vulnerable adults. It was his first ever offence aged middle 30s and it was the result of a mental breakdown following many years of sexual abuse as a child. He had been on anti depressants and receiving counselling for many years. He lost everything on arrest - job wife daughter and since had rebuilt his life with good job, paying maintenance to ex wife and having his daughter 2-3 nights a week. He pleaded guilty and got sentenced to 12 months in prison last week. He is told he should be out in 4 months with a tag. My question is should he appeal? Everyone feels prison was a harsh sentence he has zero risk of reoffending. Also I've read you could be released on bail for an immediate appeal with short sentence is this true? Thanks.

8/9/2014 steve -

I asked someone to stop the car so I could get out. The driver of the vehicle was exhibiting agressive behaviour. I asked them to stop the car as I was getting out. I removed my seatbelt and opened the car door. This made the driver pull over and slow down. I attempted to get out and the driver shouted no and drove off. I applied the hand brake and the car had a slow speed accident after hitting a kerb. The driver admitted being angry but I was still convicted with no mitigating circumstances allowed. Is this fair?

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This article appears under the following categories...
Appeals

Summary of headlines for December 2009
Small victory for freedom of speech campaign
Radical Muslims are spreading extremist propaganda from inside British prisons, a new report claims
British prisons: Incubators for Islamist extremism?
Month By Month
Eat free range haggis
Canteen service lacks professional touch
Dental treatment in prison
Been there, done that …
Prisoners' 'holidays'
Excursions in the blogosphere
Bob Woffinden writes …
The European Court of Human Rights to be reformed in the New Year
Defending the indefensible
Psychology breaking the rules
Dehumanising process of risk assessment
Second Class Citizens
Targeting failure
Challenging Deportation
Current page: Appealing against sentence
Setting the record straight
Regulation of Investigatory Powers Act 2000

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