Spruce & Anor, R v

Where the Full Court grants leave to appeal against sentence in an appellant’s absence and reduces the sentence, the appellant retains the right under section 22(1) of the Criminal Appeal Act 1968 to be present at the appeal hearing. The court’s power to sentence an absent person does not remove that right.

A relisting at the appellant’s request is not ordinarily a full rehearing. It will be a full rehearing only if fresh material has an important bearing on sentence. Otherwise, the appellant or counsel may comment on the earlier judgment. The usual post-hearing letter should normally be sent only to an unrepresented appellant.

Two unrelated sentence appeals were heard together because each raised the same procedural question: when an appellant, absent from a renewed application for leave to appeal against sentence, is granted leave and receives a reduced sentence, when should the matter be reconsidered in the appellant’s presence?

Spruce had pleaded guilty to offences involving indecent images of children. A differently constituted Court of Appeal had reduced his total sentence from four years to three and a half years. On relisting, he relied on a further medical report concerning his severely disabled wife.

Anwar had received a total sentence of 23 years for serious violence, firearms, ammunition and drug offences. The Court of Appeal had previously reduced the total to 20 years. No new sentencing material was advanced on relisting.

1. The court confirmed that section 22(1) of the Criminal Appeal Act 1968 gives an appellant who wishes to attend a right to be present at the hearing of the appeal. Section 22(2) removes that right at the leave stage. Although section 22(3) permits the court to pass sentence when the appellant is absent, it does not displace the right to attend once the matter proceeds as an appeal.

2. Where an absent appellant succeeds on a renewed application, the court may indicate that the sentence will be reduced unless the appellant applies within seven days for relisting. That procedure fairly accommodates the statutory right and practical considerations. The Registrar’s letter inviting a request for relisting should normally be sent only to an unrepresented appellant. Counsel should, where possible, obtain instructions about proceeding in the appellant’s absence and should communicate the result and appropriate advice where instructions are unavailable.

3. Relisting does not ordinarily entitle the appellant to a complete rehearing, still less to a hearing before a different constitution. A full rehearing will occur only where fresh material has an important bearing on sentence. Without such material, the appellant or counsel may comment on the earlier judgment, using its transcript. A representation order will not normally be considered until the relisted hearing has concluded, and will not usually be made unless relevant fresh material is then present.

4. In Spruce’s case, the further medical evidence did not materially alter the position already considered. The earlier reduction from four years to three and a half years therefore stood. In Anwar’s case, all material had been before the earlier court. His total sentence consequently remained 20 years rather than the 23 years imposed below.

• Court of Appeal (Criminal Division) On relisting, the court maintained the earlier reductions and gave guidance on an appellant’s right to attend after an absent renewed application.
• Court of Appeal (Criminal Division) In Anwar’s earlier appeal, judgment given on 14 January 2005, the total sentence was reduced from 23 to 20 years: [2005] EWCA Crim 22.
• Court of Appeal (Criminal Division) In Spruce’s earlier renewed application on 29 October 2004, a differently constituted court reduced the total sentence from four years to three and a half years.
• Crown Court Spruce was sentenced at Taunton Crown Court on 25 June 2004. Anwar was sentenced at the Central Criminal Court on 16 May 2002.