The Supreme Court ruled that the Court of Criminal Appeal may consider evidence about events after sentencing in exceptional cases, but upheld its refusal to admit prison testimonials in Francis Cunningham’s sentence appeal.
The judgment, delivered by Denham J. on 8 October 2002, answered a point of law certified by the Court of Criminal Appeal under section 29 of the Courts of Justice Act 1924. The question was whether the appeal court was confined to facts existing when sentence was imposed or could receive evidence about later events, including an applicant’s behaviour or health.
Cunningham had pleaded guilty in the Circuit Criminal Court on 8 December 1999 to forging a £45,000 bank draft. He received a five-year prison sentence. When seeking leave to appeal against the sentence, his counsel asked the Court of Criminal Appeal to consider testimonials and certificates created after sentencing, concerning his conduct and rehabilitation in prison. That court refused to admit them and did not change the sentence. It later certified the legal question for the Supreme Court.
Denham J. held that, as a general rule, the Court of Criminal Appeal considers the circumstances that existed when sentence was imposed. But the court may receive evidence about later events in exceptional cases, where the evidence is relevant to doing justice in the case. Such evidence may be relevant where it sheds new light on circumstances that already existed at sentencing, including a previously unclear health condition. The judgment said exceptional circumstances could not be exhaustively listed.
The judge distinguished this limited jurisdiction from the executive’s power of mercy. She said routine rehabilitation and good behaviour in prison do not qualify as exceptional circumstances for admitting evidence on appeal. The testimonials in Cunningham’s case amounted to an appeal for compassion and were properly excluded.
The Supreme Court therefore upheld the Court of Criminal Appeal’s refusal to admit the material and its ruling that the sentence had to be assessed by reference to the position at the time it was imposed. The certified question was answered more broadly: later evidence about an applicant’s behaviour, health or other relevant matters may be received in exceptional cases to do justice. The judgment did not reopen the sentence or alter the five-year term.