Disparity of sentence

Disparity of sentence is the principle whereby it is argued that one defendant should receive a less severe sentence based on a comparison with a co-defendant’s sentence. This can occur in one of two circumstances; firstly, where similar cases are sentenced differently, an secondly where different cases receive the same sentence.

Appeals

Disparity does not form a separate ground of appeal and so will need to form either a part of, or the basis for, an argument that the disputed sentence is manifestly excessive or wrong in principle. Consequently,  disparity argument can be mounted when a sentence is and is not manifestly excessive.

The test

Consider whether right-thinking members of the public thought that something had gone wrong with the administration of justice, R v Fawcett and Others 1983 5 Cr App R (S) 158.

Restrictions

The Court of Appeal has sought to reduce the scope of disparity. Consequently, arguments which has previously seemed more likely than not to find sympathy with the court have been rejected.

Does a disparity in sentence mean a reduction?

No. When considering the appeal against the fine imposed on Balfour Beatty, imposed after convictions arising out of the Hatfield rail crash, the Lord Chief Justice said that disparity between the sentences of two defendants was not an automatic reason for reducing a sentence.

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4 thoughts on “Disparity of sentence

  1. Pingback: Judicial error allows defendant to avoid an immediate custodial sentence | UK Criminal Law Blog

  2. Incognito

    Does this apply in the Sgt Nightingale case? Nightingale both had his sentenced reduced by the EWCA, and then secured a retrial: his co-defendant pleaded guilty and was sentenced to military detention. What happens to him?

    Reply
    1. Lyndon Harris Post author

      Disparity arguments are difficult to establish and there is an element if luck to whether they succeed.

      This wouldn’t apply to Nightingale and ‘Sgt X’ because they were conviction of (I believe) the same offences which were founded on different facts.

      Disparity only applies to the same offence and same factual background, e.g. Where two men rob a bank, commit an assault or are involved in a fraud.

      Where there are two different factual backgrounds (e.g. Nightingale and Sgt X,) the appeal would fail because there is no disparity as the offences-their conduct-is different one would expect their sentences to be different.

      Also, it was accepted by all in Nightingale that Sgt X’s case was more serious. So the sentence would be higher.

      Reply

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