Crown Prosecution Services, R (on the application of) v Guildford Crown Court & Anor

Where a defendant has been tried and convicted on indictment, an error by the sentencing judge as to the extent of the sentencing jurisdiction is a matter relating to trial on indictment. Section 29(3) of the Supreme Court Act 1981 therefore excludes judicial review, even where the sentence imposed was not authorised by the applicable sentencing provisions.

Authorities permitting judicial review of jurisdictionally flawed Crown Court orders concern exceptional circumstances in which there was no trial on indictment or no conviction. They do not establish a general power to quash an unlawful sentence. The appropriate route is an appeal to the Criminal Division of the Court of Appeal, subject to its statutory powers.

The Crown Prosecution Service sought judicial review of a sentence imposed by the Crown Court at Guildford on Andrew Edwards after his conviction for rape. The sentencing judge considered that there was a significant risk of further specified offences but imposed an extended sentence under section 227 of the Criminal Justice Act 2003.

It was accepted that, because rape was a serious offence, the applicable provision was section 225, requiring either life imprisonment or imprisonment for public protection. The issue was whether the Administrative Court could quash the sentence despite section 29(3) of the Supreme Court Act 1981.

1. The application for judicial review was dismissed. The court had no jurisdiction to quash the sentence.
2. Rape falls within the definitions of both a specified offence and a serious offence under sections 224 and 225 of the Criminal Justice Act 2003. Where an offender aged over 18 is convicted of a serious offence and the statutory dangerousness condition is met, section 225 requires a life sentence or a sentence of imprisonment for public protection. Section 227 applies to a specified offence other than a serious offence.
3. The sentencing judge had therefore erred in imposing an extended sentence under section 227. That error did not remove the case from section 29(3) of the Supreme Court Act 1981. Following the approach indicated in Smalley v Warwick Crown Court and Sampson v Crown Court at Croydon, a sentence imposed after a trial on indictment is an integral part of that trial process and is a matter relating to trial on indictment.
4. R v Crown Court at Maidstone, ex parte London Borough of Harrow and Regina (Kenneally) v Crown Court at Snaresbrook were exceptional cases. They involved orders made without a conventional trial on indictment, and did not establish a general principle allowing judicial review of any sentence exceeding the sentencing court’s jurisdiction.
5. The proper route for correction was an application to the Attorney General under section 36 of the Criminal Justice Act 1988, although the time for such a reference had expired. The court observed that it could, if necessary, reconstitute itself as the Court of Appeal, Criminal Division. It also noted the approach in R v Reynolds and Others, where an unlawful sentence was not disturbed because the Court of Appeal lacked power to substitute a heavier sentence.

• Crown Court at Guildford: following conviction for rape, imposed an extended sentence under section 227 of the Criminal Justice Act 2003.
• High Court (Administrative Court): dismissed the judicial review application because section 29(3) of the Supreme Court Act 1981 excluded jurisdiction to quash the sentence.