The Supreme Court ruled that the Court of Criminal Appeal must assess a sentence appeal against the facts that existed when the sentence was imposed. It cannot receive evidence of later events, such as a prisoner’s conduct in custody, when deciding whether the original sentence was wrong in principle.
The ruling came in an appeal by Francis Cunningham, who challenged the refusal to consider ten testimonials and certificates prepared after he received a five-year sentence for forgery. The Supreme Court answered a certified question of exceptional public importance under section 29 of the Courts of Justice Act 1924. It did not quash or vary Cunningham’s sentence.
Cunningham had pleaded guilty in December 1999 to forging a bank draft stolen during an armed robbery. The sentencing judge imposed five years’ imprisonment. His appeal against the sentence was dismissed by the Court of Criminal Appeal in July 2001. That court later declined to consider the testimonials and certificates, which described his conduct and activities in prison and included a vocational skills certificate. The documents were offered to support mercy or leniency, rather than to show that the original sentence involved an error of principle.
In the Supreme Court, Cunningham’s counsel argued that the Court of Criminal Appeal was not absolutely barred from considering later events. The Director of Public Prosecutions argued that the appeal court’s task was to decide whether the sentence imposed was wrong in principle, not to impose a different sentence simply because it might have chosen another one.
Delivering the judgment, Mr Justice Hardiman said an appeal court could consider fresh evidence where it was relevant to an issue properly before it, including evidence that shed new light on circumstances existing at the time of sentence. The prison testimonials, however, concerned events that occurred afterwards and did not bear on whether the sentencing judge had erred. The appeal against severity had not established an error of principle that would allow the Court of Criminal Appeal to quash the sentence and impose a replacement.
The Supreme Court answered the certified question by holding that the appeal court is limited to facts existing when the sentence was imposed at the stage of deciding whether that sentence was wrong in principle. If it allows an appeal and quashes the original sentence, it may then consider relevant later events when deciding on an appropriate replacement sentence. The Supreme Court did not itself resentence Cunningham.