R v Instone 2012 EWCA Crim 1792
Issue – The Court heard 3 appeals that were separate factually (in fact one appeal featured two Appellants – JK and CP, but only CP appealed against the sentence), but heard together to consider the impact of the judgment last year in the case of Smith. That case had decided that if someone is given an ‘indefinite sentence’ (ie, IPP or a life sentence) then, unless there was something exceptional about the case, a Sexual Offences Prevention Order should not be made.
The Court did not in Smith, or in this case, give examples of when it would be appropriate (this is not usual – the Court of Appeal is generally loath to answer hypothetical questions), but it seems that they would have to be truly exceptional.
The appeals in this case were launched on the basis that all the people appealing had been given indefinite sentences and a SOPO and therefore, following Smith, this was wrong in law.
Facts – The actual facts aren’t that important – suffice to say that all three appellants either pleaded guilty to, or were found guilty of, serious sexual offences. All were given sentences of IPP and SOPOs. One of the Appellants (anonymised as CP) was sentenced after the decision in Smith was given. The others were ‘historic appeals’ (dating from a few years before – you have to appeal within 28 days from being sentenced) and the individuals MI and RA appealed out of time based on the decision in Smith.
Conclusion – In the case of CP the Court applied what had been decided in Smith and quashed the SOPO, commenting that that decision was binding on them (meaning that they had to follow it). So far so good, there is nothing particularly unusual in it. What is more interesting is in relation to the other two cases.
One, MI, was an application to appeal that had been referred to the Full Court to decided whether permission should be given and, if it was, to decide the appeal. The other, RA, was a ‘full’ appeal where permission had been given.
The Court of Appeal recognised that, with the benefit of Smith, these SOPOs should not have been passed. However, they refused the application for permission and dismissed the appeal. Why was that?
The reasons are set out in paragraph 19”
“19 However, the fresh guidance given by Smith does not provide the basis for a successful appeal against a SOPO imposed long before Smith was decided and which, but for the licensing conditions which will be imposed on release, was made with every justification. Sentence is imposed on the basis of the relevant legislation, the principles, practice and guidance, whether from this court or the Sentencing Council, which are current at the date when sentence is imposed. An existing sentence should not be varied on appeal because of subsequent changes to them. As Mr Cotter graphically recognised during exchanges with the court, this court is not a review body for every SOPO — and to that we would emphasise: nor to every SOPO made before the decision in Smith.”
In other words, it does not matter that, with the benefit of hindsight, the sentence should not have been passed.
Comments – This is, legally speaking, a very interesting decision. The law on appeals against sentence are in ss9 and 11 Criminal Appeal Act 1968. Specifically, when considering an appeal, s11(3) states:
On an appeal against sentence the Court of Appeal, if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below may—
(a)quash any sentence or order which is the subject of the appeal; and
(b)in place of it pass such sentence or make such order as they think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence;
Unlike with appeals against conviction, this seems to give the Court a very wide discretion. It is phrased in the present tense: ‘should be sentenced differently’ rather than ‘should have been sentenced differently’. Were the Court entitled to ignore a later ruling clarifying what the law is?
Is the Court placing legal certainty and the public policy interests of dissuading further appeals, ahead of legal principle? Whilst it is understandable that the Court doesn’t want to have a slew of appeals every time a piece of legislation is reviewed and a new principle identified, it seems that it can’t be right that the Court can uphold a sentence that is legally wrong just for those reasons.