England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM PRESTON CROWN COURT
HHJ PROCTOR
T2002 7419

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/05/2009

Lord Justice Hughes:

1. 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.
2. 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.
3. 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.
4. 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, R v Hodgson (1968) 52 Cr App R 113 and Attorney General's reference 32 of 1996 (Whittaker) [1997] 1 Cr App R 261. 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.
5. 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."

6. 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 R v Pinfold (1998) 87 Cr App R 15 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, R v Grantham (1969) 55 Cr App R 369 is to identical effect in the context of the similarly worded provisions of the Courts Martial (Appeals) Act 1968. That principle is accepted by Mr George QC on behalf of this applicant.

7. 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: R v Neal [1999] 2 Cr App R (S) 353.
8. 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 Pinfold:

"…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 R v Berry (No 2) [1990] 1 WLR 125, the judgment of Watkins LJ contains this passage by way of summary:

"What the authorities show is a more general power to re-list for rehearing where (1) the previous hearing is regarded as a nullity, (2) there is a likelihood of injustice having been done because the court failed to follow the rules or well-established practice or was misinformed as to some relevant matter."

However, quite different considerations there arose because the case had been to the House of Lords; the decision was, unsurprisingly, that once the House has pronounced conclusively upon a conviction, this court has no power to reconsider it or to hear argument upon grounds not ruled upon in the House. The reference to misinformation as to some relevant matter may be to R v Cross [1973] 2 All ER 920, where an appeal against sentence had been allowed without the court being told by the defendant that he had subsequently been sentenced to a consecutive term for a further offence, but the decision in that case was, even so, no more than that there is power to consider a case further up until the time when the order of the court is given effect by recording in the books of the Crown Court, where any substituted sentence stands as if passed there. Both the earlier decision in Grantham and the subsequent decision in R v Daniel [1977] 1 All ER 620 make clear that it is where there is administrative error which has deprived the appellant of a proper hearing that the power to re-list arises – in the latter case his solicitors and counsel were through accidental administrative error not told of the hearing, although they had notified the court that they were privately instructed, so that no argument was heard.

9. Mr George sought before us to rely upon the reference in the passage cited from Berry (No 2) to the court being misinformed. He suggested that the court here was misinformed because it was assumed, on the occasion of the hearing of the Attorney General's reference, that there was no issue as to the mental health of the defendant. But for the reasons we have set out, the passage in Berry (No 2) is no more than an example of the kind of non-hearing through administrative error which the other cases disclose. It cannot be extended to apply where what is contended is that fresh evidence shows that the court was not told of some material which the defendant wishes now to put before it. That was the explicit decision in both Grantham and Pinfold, where just such contentions were made and rejected. The very limited nature of this jurisdiction, which is to continue to deal with an appeal which has not properly been disposed of, is akin to the power to allow a defendant to treat his notice of abandonment as a nullity if, but only if, his mind genuinely did not go with his act when he abandoned: see R v Medway (1976) 62 Cr App R 85. It is not a power to entertain a second appeal when the defendant has changed his mind (or received different advice) about the grounds on which he ought to rely, nor to start again because it is suggested that there is now some evidence which was not previously available. Accordingly this limited power cannot apply in the present case.
10. A defendant who, after an appeal to this court, genuinely has come into possession of evidence which is properly fresh, in the sense that he could not reasonably have presented it at the hearing of his appeal, is not without remedy if the merits are with him. It was precisely to cope with this kind of case, amongst others, that the Criminal Cases Review Commission was established. The Commission has power to refer a sentence case to this court under section 9(1)(b) Criminal Appeal Act 1995.
11. Where the Attorney General refers a sentence to the court under section 36 Criminal Justice Act 1988, the court's powers are at large. The section provides that upon such reference the court may:

"(i) quash any sentence passed on him in the proceedings; and

(ii) in place of it pass such sentence as they [sic] think appropriate for the case and as the court below had power to pass when dealing with him."

As can be seen, the court's powers thus mirror those provided by section 11(3) Criminal Appeal Act 1968 in the event of a defendant's appeal against sentence. Moreover, the powers of the court thus extend to reducing, as well as to increasing, the sentence.

12. This defendant, like any other, was represented at the time of the hearing of the Attorney's reference. It was open to him then to contend, if there were grounds to do so, not only that the sentence was not unduly lenient or at least should remain undisturbed, but was in fact too long or otherwise wrong in principle. Some defendants, responding to an Attorney's reference, do indeed advance such argument. They may lodge a cross-notice of appeal, and no doubt the best practice is to do so, but providing proper warning is given to the court and to the Crown that such an argument will be advanced, and the grounds on which it will be mounted, it is plain that the power is there to reduce the sentence or otherwise modify it to the benefit of the defendant. A good example might be where, as is now contended in this case, there is said to be a proper basis for contending that a hospital order rather than a term of imprisonment ought to have been imposed.
13. In general terms, the public interest in finality is very much the same where a defendant's case has been referred to this court by the Attorney General as when it has been brought here by the defendant himself. In each case, moreover, the sentence has been considered by this court. It may be being said that there is fresh material on a point which was never taken before and that the defendant cannot be blamed for not taking it, but that is capable of happening as well after an appeal by the defendant as after an Attorney's reference and, for the reasons which we have set out, it does not justify the existence of a general power to entertain a second appeal. It was, we are sure, these considerations which led this court to say in R v Rowan [2007] EWCA Crim 1624, that subject to the correction of minor errors the decision of this court when disposing of an Attorney General's reference is the end of the sentencing process involving a defendant.
14. Rowan was a case in which the court was concerned with the ambit of the powers to re-list a previous hearing, which powers we have considered above. The defendant had been convicted with others of a large drug importation. Upon an Attorney General's reference, this court had increased the sentences upon each. Subsequently an outstanding co-accused had been apprehended and dealt with in separate proceedings. Rowan wished to contend that the basis on which the newly apprehended defendant had been sentenced falsified the basis on which the cases of the original defendants, including himself, had been considered by both the Crown Court and this court. In effect he wished to say that the apportionment of responsibility between the conspirators had been wrong. That contention was roundly rejected. Rowan's part in the conspiracy had been perfectly properly put before the courts dealing with him; that much was, crucially, conceded. That one of the principal defendants at the first trial had cast most of the blame on the absent defendant did not mean that the Crown was wrong to revisit that defendant's proper role when, later, he was apprehended. There was no objectionable disparity between the sentence which Rowan was serving and that imposed upon the late-apprehended defendant.
15. Mr George and Miss Cheema both invited us to consider whether Rowan is distinguishable on the grounds that in that case the defendant's application for leave to appeal was a direct challenge to the sentence passed by this court upon the Attorney General's reference, because Rowan was complaining about something which arose after original sentence. By contrast here, it was contended, the challenge is to the original sentence of imprisonment. We are unable to see that that distinction exists. In both cases, the argument involves saying that, because of fresh evidence subsequently appearing, the previous order of this court, as well as the original Crown Court sentence, is shown to have been in error. And in the case both of a sentence which has been reduced on allowing a defendant's appeal and of one which has been increased upon an Attorney General's reference, the new sentence substituted by this court takes effect as if passed by the Crown Court, and runs from the time of original sentencing.
16. There is however this very important difference between a sentence which has been considered upon an Attorney General's reference and one which has been the subject of an appeal by the defendant. In the latter case, the defendant has exercised the right of appeal given to him by section 9 of the 1968 Act. In the former, that right remains extant and unexercised. As it seems to us, it is one thing to say, as this court consistently has (for example in Pinfold and Grantham) that the statutory right of appeal cannot be construed as extending to a right to two (or indeed more) appeals. But it is quite another to say that the statutory right to (single) appeal given by section 9 is removed when the Attorney General brings the case to this court. It would make good sense if the statute were amended to achieve that result, but amendment would, we are satisfied, be necessary.
17. That conclusion is reinforced by consideration of the powers given to the CCRC. By section 13(1)(c) of the 1995 Act, the Commission may refer a sentence (or conviction) only when an appeal has been determined or leave to appeal has been refused. That preserves the principle that the Commission is a port of call of last resort when the jurisdiction of this court is exhausted. But the statute does not say, as it might, that a CCRC reference may also be made if the sentence has been to this court upon a reference by the Attorney General. It is true that there exists a residual power in the Commission under s 13(2) to refer a case nevertheless if there are exceptional circumstances justifying doing so. But the general scheme of the Act is shown by section 13(1)(c) and the residual power is one very unusually invoked; for good reason, because the making of a reference by the Commission operates as an appeal and thus by-passes the important filter of leave to appeal.
18. It is clear that what was under consideration in Rowan was an application to re-list under the limited exception considered in Pinfold. That is apparent from the references to Berry (No 2) and from the conclusion in paragraph 30 that the change in role ascribed to the later-apprehended co-accused did not come "anywhere near a reason to re-list Rowan's case". As is apparent, Rowan's application was doomed on the merits whichever way it was put. This court did not have to consider the purely statutory point which we have had, with the assistance of the Crown, to do.
19. For these reasons we conclude that the court's power to entertain an appeal against sentence is not, as a matter purely of jurisdiction, removed by the fact that there has been an earlier reference of the sentence by the Attorney General under section 36 Criminal Justice Act 1988.
20. It ought clearly to be understood that it by no means follows that the court will in fact entertain such an appeal. Any application for leave to appeal sentence requires leave and, in this case and no doubt any others like it, an extension of time. The right to appeal given by section 9 of the 1968 Act is subject to section 18, which requires an application to be lodged within the time stipulated – which is, by section 18(2), 28 days. An extension of time is by no means a formality. It will be granted only where there is good reason to give it, and, ordinarily, where the defendant will otherwise suffer significant injustice. In the very small number of instances in which there has been an earlier reference by the Attorney General, it will 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 is likely to be refused in any case in which what he now seeks to argue could and should have been argued then. Wholly unmeritorious applications which are no more than an attempt to ventilate second thoughts or to re-litigate decided issues are likely to be met by an order for loss of time under section 29 of the 1968 Act. In all but the wholly exceptional case the decision of this court upon a reference by the Attorney General is, as this court held in Rowan, as much an end of the sentencing process as is its decision upon an application by the defendant under section 9.

Directions for future conduct.

21. This court, which may be differently constituted, is likely to wish to consider at a single hearing (i) the application for extension of time (ii) the application for leave to appeal (iii) any application to adduce fresh evidence and, if those hurdles are successfully negotiated, (iv) the appeal. It may well need to hear, de bene esse or otherwise, the evidence of Dr Mulligan, on whose report the defendant presently relies, and/or any other medical evidence advanced by either side. It will need to address (a) the medical condition of the defendant at the time of original sentencing, (b) his treatability, (c) the danger he presents, (d) the relationship between a hospital order and a discretionary life sentence, as to which see, inter alia, Drew [2004] 1 Cr App R (S) 8, IA [2005] EWCA Crim 2077 and Beatty [2006] EWCA Crim 2359, and (e) if a hospital order be appropriate, a restriction order, which requires two doctors.
22. To this end we give these directions:

i) the defendant is to lodge within 42 days of the handing down of this judgement any application to call fresh evidence (Form W) together with a report or reports dealing with all the above-mentioned matters and such as to enable the court to make a restriction order if any hospital order be appropriate;

ii) the Crown, if so advised, is to lodge any application to call fresh evidence in response within 56 days thereafter;

iii) if the Crown wishes to have the defendant examined by a suitably qualified consultant forensic psychiatrist, the defendant is to submit to such examination;

iv) the case is thereafter to be listed upon the joint application of the parties, which is to be accompanied by short skeleton arguments on each side (to supersede any existing grounds or other document submitted by the defendant unless there is nothing to add) and an agreed time estimate for both reading and hearing;

v) any witness on whose evidence either side seeks to rely must attend the hearing in order to give evidence if called upon to do so.