Bermeo, R (on the application of) v Director of Public Prosecutions

A sentence imposed under a statutory provision not yet in force is unlawful and must be quashed or amended. Although the High Court may have jurisdiction in a case stated from the Crown Court and may amend the sentence, appeals against Crown Court sentences should ordinarily proceed to the Court of Appeal, Criminal Division. An extension of time should be sought where necessary. Advocates have a duty to know the court’s sentencing powers and to correct an unlawful sentence. An exceptionally lenient replacement sentence, imposed because the appellant has already spent substantial time in custody following the unlawful order, creates no sentencing precedent.

The appellant pleaded guilty to possessing a false instrument contrary to sections 5(1) and 6 of the Forgery and Counterfeiting Act 1981. The Crown Court imposed a 50-week Custody Plus sentence under section 181 of the Criminal Justice Act 2003, although that provision was not in force. The appellant appealed by way of case stated. The central issues were whether the sentence was unlawful, whether this court should amend or remit it, and what sentence should replace it.

1. The appeal was allowed. The Custody Plus sentence was unlawful because section 181 of the Criminal Justice Act 2003 was not in force. The Crown Court therefore lacked power to impose it.

2. The Divisional Court had jurisdiction because the case did not arise out of a trial on indictment. Section 28A(3)(a) of the Supreme Court Act 1981 empowered the court to reverse, affirm or amend the determination. Remittal was also available.

3. The proper route for an appeal against an unlawful or excessive Crown Court sentence is the Court of Appeal, Criminal Division. That remained so even though the ordinary time limit had expired: an extension of time could have been sought and the matter dealt with urgently.

4. Advocates must know the sentencing powers available in the particular case and must correct the sentencing judge if necessary. The court criticised the failure to check whether section 181 had commenced, despite the indication in Archbold that commencement awaited an appointed date.

5. In the special circumstances, the court amended the sentence to 50 weeks’ immediate imprisonment, taking effect from the date of the original sentence and allowing credit for time already spent in custody. The sentence was expressly described as wholly exceptional and imposed because the appellant had already spent substantially longer in custody than the Crown Court intended.

6. The exceptional sentence was not to affect the ordinary sentencing approach stated in R v Kolawole [2004] EWCA Crim 3047.

1. High Court (Administrative Court): The appeal by way of case stated from the Crown Court was allowed. The unlawful Custody Plus sentence was amended to 50 weeks’ imprisonment under section 28A of the Supreme Court Act 1981.