A, R. v

On an appeal against sentence, the general rule is that post-sentence material will not reopen a sentence that was proper when imposed. Section 11(3) of the Criminal Appeal Act 1968 nevertheless permits the Court of Appeal, in an exceptional case, to sentence the appellant differently in light of subsequent events.

Exceptional post-sentence assistance may justify a substantial reduction where it is of the highest quality, is critical to securing another offender’s conviction, and exposes the appellant or family to real danger. The court will distinguish the ordinary case of a convicted defendant who later seeks advantage by supplying information, particularly where the appellant has consistently maintained the account later given in evidence.

Following a retrial at the Crown Court at Southwark, the appellant was convicted on 14 May 2003 of being knowingly concerned in harbouring heroin and was sentenced to 13 years’ imprisonment. He had admitted keeping the drugs but relied at trial on duress.

After sentence, he agreed to give evidence at the trial of Michael Watson, whom he had consistently identified as one of the men for whom he kept the drugs. Watson was convicted. The prosecution accepted that the appellant’s evidence was critical, and the trial judge recognised the courage required to give it.

The appeal concerned whether the Court of Appeal could reduce an otherwise proper sentence to reflect that subsequent assistance.

1. Appeal allowed. The sentence of 13 years’ imprisonment was reduced to five years.
2. The court reaffirmed that it is ordinarily a court of review. Accordingly, material arising after sentence will not normally justify reopening a sentence which was proper when imposed. The observations in R v A and B [1999] 1 Cr.App.R (S) 53, and the general approach acknowledged in R v K [2003] 1 Cr.App.R 22, remained valid. In particular, a defendant who denied guilt, was convicted, and then seeks to improve his position by giving information cannot ordinarily expect appellate intervention.
3. That general rule did not exhaust the court’s power. Section 11(3) of the Criminal Appeal Act 1968 empowered the court to impose a different sentence where, taking the case as a whole, that was appropriate. It did not preclude consideration of post-sentence material in an exceptional case.
4. This was such a case. The appellant had maintained the same account of his involvement from the outset. His later evidence was critical to Watson’s conviction. It involved real and potentially continuing danger to the appellant and his family. His assistance was therefore at the highest end of the relevant spectrum.
5. The proper reduction depends on the quality of the assistance and the extent of the danger accepted in providing it. Assistance of this character could justify a very substantial reduction. A reduction from 13 years to five years was appropriate.

• Court of Appeal (Criminal Division). Allowed the appeal against sentence and substituted five years’ imprisonment for 13 years: [2006] EWCA Crim 1803.
• Crown Court at Southwark. Following a retrial, convicted the appellant on 14 May 2003 of being knowingly concerned in harbouring heroin and imposed a sentence of 13 years’ imprisonment.