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Criminal Defence Articles

Can a sentence be increased on appeal?

If you are convicted of an offence and you feel that you have been given a sentence that is too harsh or otherwise unfair, you have the right to appeal. Whether or not your sentence can be increased on appeal depends on if your case was heard in the Magistrates’ Court or the Crown Court. If the case was heard in the Crown Court, the appeal will be made to the Court of Appeal. Whilst the Court of Appeal cannot impose a harsher sentence than the one that was passed by the Crown Court, if it feels you have wasted court time it can pass a ‘loss of time’ order, which essentially means that the time that you have spent in custody whilst appealing your sentence does not count towards your sentence. This could lead you to you effectively serving a longer sentence. Meanwhile, if your case was heard in the Magistrates’ Court, your appeal will be heard in the Crown Court. The Crown Court has the power to increase or reduce your sentence. For this reason, if you are considering launching an appeal against your sentence, it is important to properly understand the advantages and disadvantages of taking this step. Read on for an explanation of the process for appealing your sentence, and the possible outcomes of taking this step

What is the process for appealing your sentence?

The process for appealing your sentence depends on if your sentence was passed in the Crown Court or in the Magistrates’ Court.

Crown Court

If you wish to appeal your sentence, you must seek ‘leave to appeal’ to the Court of Appeal within 28 days of the date that the sentence was imposed. If you apply later than this, you need to ask for an extension of time and explain why this is needed. In order to be allowed to proceed out of time, there must be good reasons for the delay, and it must be in the interests of justice for the court to allow the application to proceed.

‘Leave’ means permission. This step essentially involves asking the Court of Appeal for permission to launch an appeal. You provide an outline of why you are appealing, and the Court of Appeal will consider whether there are merits to your proposed appeal. You can apply for bail with your appeal, however this will only be granted in rare and exceptional circumstances, where the merits of your appeal are very strong.

There are three main grounds for appeal. You can argue that the sentence is:

  • Wrong in law;
  • Wrong in principle; or
  • Manifestly excessive (i.e. much too long)

When deciding which grounds to argue, your solicitor will have regard to the sentencing guidelines published by the Sentencing Council for the offence in question.

The judge will consider your application on the papers (i.e. without an oral hearing). The judge will then decide whether to permit the application to proceed to an appeal hearing. If permission is refused, you can apply to renew your permission application. Your legal representative will have the opportunity to attend a hearing before a Court of Appeal judge in which it is considered whether permission to appeal should be granted. If permission to appeal is granted, the case will be listed for an appeal hearing at the Court of Appeal.

Section 23 of the Criminal Appeal Act 1968 sets out the laws of evidence at criminal appeals. At the appeal hearing, the court has the power to hear witness evidence where it is relevant to the grounds of appeal. When deciding whether to receive evidence, the court must consider whether the evidence ‘is capable of belief’.

Alternatively, there is a process by which the Crown Court has the power to correct an error made during sentencing within 56 days of the date of the sentence.

Magistrates’ Court

If you wish to appeal against a sentence passed in the Magistrates’ Court, you can appeal to the Crown Court within 21 days of the sentence being passed. This process is different to the process described above for appealing a Crown Court sentence, because it involves the Crown Court rehearing the whole case from the start. The prosecution will set out the facts relevant to the commission of the offence, and refer to any sentencing guidelines. The defence will then put forward their plea in mitigation. The appeal will be heard by a Circuit Judge or Recorder, sitting with two magistrates. It will not be the same magistrates who were involved in the trial in the Magistrates’ Court.

Alternatively, you can apply to the Magistrates’ Court to ask it to vary or rescind the sentence that it has passed pursuant to Section 142 of the Magistrates Court Act 1980. This provision is often used where it is common cause between the prosecution and the defence that an error has occurred. There is no time limit for this application, but the Criminal Procedure Rules require that it should be made ‘as soon as reasonably practicable’ after sentencing.

If your appeal concerns a matter of law, there is also a procedure you can appeal by way of ‘case stated’ to the Queen’s Bench Division of the High Court. It is usually best to appeal to the Crown Court first. Where all other avenues have been exhausted, you can also ask the Criminal Cases Review Commission to refer your case to the Crown Court for an appeal.

Due diligence

Where you wish to instruct a new solicitor and/or barrister to represent you at appeal, they will be subject to ‘due diligence’ requirements. Your legal representatives owe a legal duty to the court to assist with the administration of justice. They are not allowed to lodge appeals where they do not see any legal merit in the submissions. This means that they must satisfy themselves on the objective basis of your grounds of appeal before making submissions on your behalf. This often involves making enquiries with the original legal team that represented you. If you do not grant permission for your new representative to speak with your previous representative, they may not be able to act for you.

Is there a risk that your sentence could be increased in appeal?

As you can see, there are several different ways you can appeal depending on where your trial took place. If your case took place in the Magistrates’ Court, an appeal to the Crown Court exposes you to the risk that your sentence could be increased (within the parameters of maximum sentence that was available to the Magistrates’ Court) as well as decreased.

Meanwhile, if your case took place in the Crown Court, an appeal to the Court of Appeal cannot lead to your sentence being increased. However, you do face the risk of a ‘loss of time’ order, which could mean that you end up serving more time in prison than if you had not launched an appeal. In addition, if your appeal is unsuccessful, you could face a costs order against you.

Because of these risks, it is important to consider very carefully whether it is wise to appeal your sentence.

Could your sentence be reduced on appeal?

Yes, if your appeal is successful, your sentence could be reduced. This could mean that, for example, you could serve a fine or a community level order in place of a custodial sentence. Alternatively, it could mean that the sentence that you serve is reduced. When considering the appropriate reduction, the appeal court will have regard to the facts of your case and the sentencing guidelines available for the offence in question. The appeal court will also consider aggravating and mitigating factors relevant to your personal circumstances.

Is it possible that your sentence remains the same following an appeal?

Yes, if your appeal is unsuccessful, the appellate court may leave the same sentence in place. This is likely to occur where the appellate court concurs with the reasoning of the sentencing judge or finds that they reached a reasonable decision based on the facts of your case and does not uphold the grounds of your appeal. Whilst this is a risk that you face, if you are facing a very severe sentence, it may feel like a worthwhile risk to take. Discuss your concerns with your appeal solicitor and ask them for realistic advice in respect of your prospects of success.

Where to get further help?

If you are considering appealing your sentence, you may feel that it is time to get a fresh pair of legal eyes on your case. For many different reasons, appellants often instruct a new legal team to represent them on appeal. At Stuart Miller Solicitors, our many years of experience serving on the frontline of criminal justice has given us an excellent insight into which appeals are likely to succeed. Contact us for a no-obligation consultation today.


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