R v Hughes (James Francis)
|England & Wales
|Lord Justice Hughes,THE LORD CHIEF JUSTICE,MR JUSTICE DAVID CLARKE
|27 April 2010
| EWCA Crim 841, EWCA Crim 1026
|No. 2009/00393/A2,Case No: 2009 00393 A2
|Court of Appeal (Criminal Division)
|27 April 2010
 EWCA Crim 841
Lord Justice Hughes
Mr Justice King
His Honour Judge Radford
Case No: 2009 00393 A2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM PRESTON CROWN COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Mark George QC (instructed by Roberts, Moore, Nicholas Jones, Solicitors) for the Appellant
Ms Bobbie Cheema (instructed by Crown Prosecution Service, Solicitors) for the Respondent
Hearing dates: 07 April 2009
Lord Justice Hughes:
This is an application for leave to appeal against sentence on the basis of fresh evidence, and for a long extension of time. The applicant pleaded guilty to arson. His case is that there is now fresh medical evidence which shows that instead of a life sentence, there ought to have been a hospital order with restriction. The very unusual feature of the case is that the applicant's sentence has already been considered by this court. His case was referred here by the Attorney General under section 36 of the Criminal Justice Act 1988, on the grounds that the sentence passed in the Crown Court was unduly lenient. This court accepted that submission and passed a discretionary life sentence in place of the determinate sentence imposed by the Judge.
Subsequently, the applicant has been transferred to a special hospital by the prison authorities. It is now contended that fresh medical evidence shows that he was suffering from a mental disorder at the time of the original offence and sentence, and that a hospital order with restriction ought to have been made. That was not the medical evidence at the time either of the original sentence or of the hearing of the Attorney General's reference in this court. The fresh medical opinion comes from an experienced consultant forensic psychiatrist who has been treating the applicant at the special hospital. It gives rise to a clear prima facie case that a hospital order would have been open to the court and appropriate at the time of the original sentencing. It remains an open question whether the doctor is or is not correct in reaching back some years to the applicant's condition at the time of the original offence and sentence. It may be that the detailed knowledge of those who have now been treating him for some years has yielded a more informed diagnosis than was possible at the time, or it may be that even if his present condition might justify a hospital order, it cannot reliably be related back to the time of the offence and sentence. And it remains an open question whether a life sentence was wrong in principle in any event.
Before those open questions can be addressed, the application presents an issue of jurisdiction. Has this court power to entertain an appeal against sentence by a man whose sentence has already been reviewed by the court upon a reference by the Attorney General under section 36 of the Criminal Justice Act 1988? For reasons of case management it has been convenient to deal first with that issue, so that the attendance of doctors on both sides can be avoided if the court cannot hear them. We have been very grateful to Miss Cheema, for the Crown, for the materials and the valuable neutrally expressed submissions which she has placed before us.
Since we are concerned at this stage only with the question of jurisdiction, it is not necessary to do more than to sketch the facts. The applicant is now 47. He has spent a good deal of his adult life in prison. Prior to 1999 his convictions were chiefly for dishonesty, with some for mid-range violence or disorder. In 1999 he was convicted of setting fire to his own home, creating danger to the lives of adjoining occupiers and a child in the house; the offence followed a row with his wife. He was sentenced to four and a half years in prison. He was released on 21 December 2001 and was on licence until 7 May 2002. On successive days in June 2002, six weeks after the end of his licence, he started fires in the flat in which he was by then living, again occasioning no little danger and some injury to other occupants of the block. He pleaded guilty to two counts of arson, being reckless as to whether life was endangered. The Judge, who had a full psychiatric report, sentenced him on 14 October 2002 to 5 years and ordered him first to serve one year of the unserved part of his last sentence. The Attorney General referred the sentence to this court. On 20 February 2003 this court, which had an updated psychiatric report, adjudged that the sentence was unduly lenient because the case called for a discretionary life sentence, pursuant to the guidelines laid down in, inter alia, and . None of the medical evidence then available supported the possibility of making a hospital order. Two years and more later, in August 2005, having had some psychiatric attention in prison, the applicant was transferred by the Secretary of State, under s 47 Mental Health Act 1983, to Ashworth secure hospital. His responsible medical officer there, Dr Mulligan, has now formed the clear opinion not only that he is presently suffering from both mental illness (paranoid schizophrenia) and personality disorder (antisocial psychopathic), but also that he was in that condition at the time of his later arson offences. On the basis of her report, the defendant applies for leave to appeal his sentence, and for a necessarily long extension of time (a fortnight under six years) to do so.
The Court of Appeal is a creature of statute and all its jurisdiction is statutory. In relation to an appeal against sentence, its powers are to be found in section 9(1) and 11 of the Criminal Appeal Act 1968. Section 9 provides:
“(1) 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.”
Section 11(3) empowers this court, upon such an appeal:
“(a) to quash any sentence or order which is the subject of appeal and
(b) in place of it to pass such sentence or make such order as they [sic] think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence.”
The words of section 9(1) do not explicitly restrict the appellant or the court to a single appeal. That is, however, their plain effect. Similar words in other statutes in relation to powers of appeal have always been held to have that effect. In relation to a criminal appeal, the law is as declared by Lord Lane CJ in at 17:
“So there is nothing there on the face of it which says in terms that one appeal is all that an appellant is allowed. But in the view of this Court, one must read those provisions against the background that it is in the interests of the public in general that there should be a limit or a finality to legal proceedings…..We have been unable to discover, nor have counsel been able to discover, any situation in which a right of appeal couched in similar terms to that has been construed as a right to pursue more than one appeal in one case.”
The court was there dealing with an appeal against conviction (section 1(1) Criminal Appeal Act 1968) but the terms of section 9(1) are similar and the principle is clearly applicable to both conviction and sentence. If further authority be required, Courts Martial (Appeals) Act 1968. is to identical effect in the context of the similarly worded provisions of the That principle is accepted by Mr George QC on behalf of this applicant.
We have considered whether the closing words of section 9(1) (“or in subsequent proceedings”) were capable of enabling a defendant to appeal against a sentence passed by this court on an Attorney General's reference. We are satisfied that that cannot be so. Explicit words would be needed to achieve such a result. The closing words of section 9(1) are apt to preserve the defendant's right of appeal if a sentence or order is made in the Crown Court later than at the time of conviction and/or principal sentence. One example is re-sentence for the original offence after breach of a community sentence. Another is a subsequent confiscation order, which attracts a separate right of appeal: .
There does exist an extremely limited power in this court not to hear a second appeal but to re-list and re-hear a first appeal where a previous hearing can properly be described as having been in effect a nullity. Lord Lane put it in this way in :
“…there are perhaps two possible exceptions, or apparent exceptions because that is what they are, to that rule; first of all where the decision on the original appeal, if I may call it that, can be regarded as a nullity. This is more commonly applied where there has been an application to treat a notice of abandonment as a nullity. The second occasion, which may simply be an example of the first, is where, owing to some defect in the procedure the appellant has on the first appeal being dismissed suffered an injustice, where, for example, he has not been notified of the hearing of the appeal or counsel has been unable to attend, circumstances such as that.”
It is true that in referring to the same residual power in the earlier case of , the judgment of Watkins LJ contains this passage by way of summary:
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