ASSESSING THE SEVERITY OF SENTENCES ON APPEAL*
| DOI | http://doi.org/10.1111/j.1468-2230.1973.tb01374.x |
| Date | 01 July 1973 |
| Published date | 01 July 1973 |
| Author | S. White |
ASSESSING THE SEVBRITY
OF
SENTENCES
ON
APPEAL*
IN
varying a sentence on appeal the Court of Appeal is limited to
passing
a
sentence
or
combination of sentences taken as a whole
which does not exceed in severity the sentence
or
combination
of
sentences taken as a whole passed on the appellant at his trial.'
In this the powers of the court differ from that of the former
Court of Criminal Appeal. This limitation has been strongly
criticised,a and an amendment to the Courts Bill to curtail the
powers of the Crown Court in the same way as those
of
the Court
of
Appeal was defeated.' At present, because the appeal takes the
form of
a
rehearing, on appeal from a magistrates' court the powers
of Crown Courts are not
so
limited.@
The problem of deciding whether one sentence
or
combination
of sentences taken as a whole is of greater
or
lesser severity than
another is not easy. The purpose of this article is first to examine
the type of solution provided
so
far by the Court of Appeal
6;
then
to argue that it
is
inadequate and that it is
so
because the court in
interpreting the statutory provision has failed to take account
of
its
purpose.
*
I
would like to thank Master Thompson, David Thomas and Alec Samuel8
for the help given to me in preparing this article, but they *should not
be
taken
as agreeing with any of the views expressed in it.
1
Criminal Appeal Act
1966,
8.
4 (a),
now
repealed
and replaced by Criminal
Appeal Act
1968,
8.
11
(3).
For
a de!!iled exposition and history of the present
position,
sw
D.
A.
Thomas, Increasing Sentences
on
Appeal-A
Re-examination
"
[1972]
Crim.L.R.
288.
2
&s
recommended by the Interdepartmental Committee
on
the Court of Criminal
Appeal (The
Donovan
Committee)
(1965),
Cmnd.
2755,
paras.
186-206.
The
general power to increase and the general restriction on increasing sentence
should be distinguished from the present court's limited power to affect the
length of
a
,sentence by ordering that time spent by an appellant as
an
appellant shall be disregarded in calculating the length
of
his sentence-
Criminal Appeal Act
1968,
s.
29.
The Court of Criminal Appeal also possessed
a similar limited power but in a different form-Court of Criminal Appeal Act
1907,
as amended by Criminal Juatice Act
1948,
8.
38.
a
Nigel Walker,
"
Sentencing in 'a Rational Society
"
(1969),
pp.
155-159.
4
H.C. Papers, Standing Committee A, Thursday, Februar;&
4, 1971,
Col.
98-129;
Memonandum of the Council of
the
Law Society, The
Lsw
and
Praotice
on
Appeals from the Criminal Jurifsdiction of Magistrates' Courts
"
(1971),
para.
18.
@
Tyson
and
Nichols,
February
24,
1966,
The Times,
p.
6.
"Increase
of
ptence on Appeal
"
(1968)
132
J.P.
335;
Appealing1
"
(1970)
134
J.P.
147;
Appealing
I"
(1970) 134
J.P.
340;
'I
Increase of Sentence
on
Appeal
"
(1970)
57
Law
Guardian
5.
8
D.
A.
Thomas,
"
Memorandum on the Power of the Court of Criminal Appeal
to Increase Sentences," Appendix
to
Daniel
J.
Meador, "The Review
of
Criminal Sentences in England,"
1965,
Report submitted
to
the American Bar
Association Project
on
Minimal Standards of Criminal Justice; D. R. Thompson
and
H.
W.
Wollaeton,
"
Co!rt
of
Appeal: Criminal Division
"
(1969),
paras.
9.41-9.48.
D.
A.
Thornas, Principles of Sentencing
"
(1970),
pp.
342944;
Thomas
(1972)
op.
cit., pp.
297-298.
382
JULY
1973
THE
SEVERITY
OF
SENTENCES ON
APPEAL
383
THE
DECISIONS
There are two groups of decisions to consider. First there are
decisions by the Court
of
Criminal Appeal before October
1, 1966,
the date
on
which the relevant provisions of the Criminal Appeal
Act
1966
came into force,' in which, so far as one can tell from the
inadequate reports available, the court stated clearly that one sen-
tence was
or
was not
"
heavier than,"
"
more severe than,"
or
"
an
increase
"
on
another sentence.
It
might be argued that these
decisions are of little authority since the problem under considera-
tion arose only in
1966.8
Provided, however, no account is taken
of those decisions in which the court spoke only of
"
varying
"
or
"
altering
"
the sentence, however obviously it was actually
increasing
it,
it
would be too restrictive to ignore completely the
former
decision^.^
Similar considerations apply where the court
spoke of
"
reducing
"
sentences. Secondly there are those decisions
since October
1,
1966,
in which the Criminal Division of the Court of
Appeal was confronted directly with the problem. These cases can be
subdivided into three groups. First, there are cases where the court
obviously wished to alter the sentence but has felt unable to do
SO
expressly because it thought the original sentence to be less severe
than that which it wished to substitute for it. Secondly, there are
cases where the sentence has actually been altered, although in
these the
''
severity
"
point is rarely argued. Thirdly, there are
decisions where the court has contemplated a variation of sentence
but rejected
it
for a reason other than that it would involve an
increase in its severity. In all three types
of
case
I
have assumed
that the proposed alternative sentence is regarded as no more
severe than the original one, although the second and third type of
case is weaker authority on this point than the first.
UNLAWFUL
SENTENCES
AS
LIMITATIONS
As yet
it
is unclear if, in assessing the severity
of
the sentence
passed at the trial, a distinction should be made between sentences
which are unlawful for lack
of
jurisdiction to impose them and
sentences which are merely wrong as being incorrect exercises of
discretion. Clearly in the latter case the sentence with which
the sentence proposed for substitution on appeal must be compared
is that actually passed by the trial court. In the former case,
however, the view might be taken that since the sentence passed
by the trial court is
a
complete nullity, it in no way limits the
7
Those
of
the Criminal Appeal Act
1968
oame into force on September
1,
1968.
8
Except that on appeal against conviction before
1966,
if the court substituted
a
conviction for
a
leeser offence, it
could
vary the sentence but not
80
as
to
make it more severe.
For
a
statbtioy! analysis
of
the se;tences passed nnder
this provision, see Michael Knight, Criminal Appeals
(1970),
pp.
68-70.
8!2-84,187.
9
For
an
enelyeis of increased sentences in the years before
1966,
see
T'homas
(1972),
op.
cit.,
pp.
290-293.
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