Appeal against sentence - grounds to appeal

Funding an appeal

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Our approach

When assessing a potential sentence appeal, we will liaise with your previous legal presentative to obtain the key documents for consideration. This will include details of your conviction, any basis of plea and any reports relied upon by the sentencing Judge. We will then finalise our assessment, taking into account the applicable sentencing guidelines and relevant case law and finalise a comprehensive written advice addressing the merits of an appeal on sentence.

Sentencing guidelines

When sentencing, a judge is assisted by the sentencing guidelines along with previous sentences handed out in similar cases. The sentencing guidelines require an assessment of a person’s culpability and the harm caused. They also assess other relevant aggravating and mitigating factors which differ depending upon the offence itself.

A sentencing Judge will also have regard to a number of other factors which are specific to each individual case. These include:

• Whether or not you pleaded guilty or you were convicted after a trial
• If you pleaded guilty, at what stage you entered that plea. (At an early stage such as your first appearance in the Magistrates Court or at a later stage such as the first day of your trial)
• The content of a pre-sentence report by the Probation Service
• Your antecedents (criminal history), especially if the convictions were for the same type of offence

Grounds to appeal a sentence

In order to successfully apply for leave to appeal, grounds to do so must be established. Some of the more common issues are considered below.

Sentence wrong in principle or manifestly excessive

A sentence will be generally regarded as being wrong in principle if the sentence was unlawful, for example the defendant was given a prison sentence in excess of the maximum.

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 harsh or the defendant could have received a lesser sentence will not 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. This requires an assessment of the applicable sentencing guidelines.

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 the evidence indicates defendant has more of a significant role in the criminal conduct or one has more powerful mitigation than the other, is capable of mounting a sentence appeal.

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 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 they have increased the 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 into account

Errors of fact or reliance on inadmissible evidence may justify an appeal being lodged. Similarly, the Court of Appeal can admit new evidence/facts 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 ordered such a report, 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.

Mentally disordered and young persons

Due consideration should be given to the mental health and age of a defendant when deciding the sentence.

Examples of successful appeal against sentence cases

R v M- Successful appeal on sentence as the sentencing judge had failed to account for our client’s mitigating circumstances.

R  A- Successful appeal on sentence based upon the disparity in sentence given to our client’s co-accused.

Contact our appeals solicitors

If you need assistance in lodging an appeal contact our specialist solicitors on 0161 696 6188 or complete our online enquiry form.