Hughes v R

A reference by the Attorney General under section 36 of the Criminal Justice Act 1988 does not extinguish a defendant’s unexercised statutory right to one appeal against sentence under section 9 of the Criminal Appeal Act 1968. The statutory bar on multiple appeals prevents a second appeal after the defendant has exercised that right, but it does not apply merely because the sentence has previously been reviewed on an Attorney General’s reference.

The exceptional power to re-list a concluded appeal is confined to a hearing that was in substance a nullity, such as one affected by an administrative failure to afford a proper hearing. It does not permit a fresh appeal because new evidence has emerged. A later appeal remains subject to leave and to a justified extension of time.

Hughes v R concerned an application for a long extension of time and leave to appeal against sentence on the basis of fresh psychiatric evidence. The applicant had pleaded guilty to arson and was sentenced in Preston Crown Court to five years’ imprisonment. Following an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the Court of Appeal substituted a discretionary life sentence.

After transfer from prison to a secure hospital, a treating forensic psychiatrist expressed the opinion that the applicant had suffered mental disorder at the time of the offences and original sentence. The applicant contended that a hospital order, with restrictions, should then have been made. Before considering the medical issues, the court determined whether an earlier Attorney General’s reference removed its jurisdiction to hear the applicant’s own appeal against sentence.

1. The court held that it had jurisdiction to entertain an appeal against sentence notwithstanding the earlier Attorney General’s reference. It did not decide the application for an extension of time, leave to appeal, fresh evidence, or the substantive appeal.

2. Section 9 of the Criminal Appeal Act 1968 confers a single statutory right of appeal against sentence. The public interest in finality means that it does not authorise successive appeals by a defendant who has already exercised that right. However, an Attorney General’s reference under section 36 of the Criminal Justice Act 1988 is not an appeal brought by the defendant and does not remove that unexercised right.

3. The court’s broad power on an Attorney General’s reference to quash and substitute a sentence mirrors its power on a defendant’s appeal. A represented defendant may respond to such a reference by contending that the sentence is excessive or wrong in principle, including by seeking a hospital order. That opportunity is highly material when considering leave and any extension of time, but it cannot impliedly repeal the statutory right of appeal.

4. The residual power to re-list an appeal applies only where the previous hearing was effectively a nullity or an administrative defect denied a proper hearing. Fresh evidence, changed advice, or a desire to advance a new ground does not engage that power. R v Rowan was concerned with re-listing and did not determine the distinct statutory jurisdiction issue.

5. An extension of time is not routine. It requires good reason and ordinarily significant injustice if refused. The court directed the parties to prepare the applications and medical evidence for a later hearing, including evidence relevant to the applicant’s condition at original sentence, treatability, dangerousness, and the suitability of a hospital and restriction order.

• Court of Appeal (Criminal Division): Held that the prior Attorney General’s reference under section 36 of the Criminal Justice Act 1988 did not remove the applicant’s unexercised right to appeal against sentence. Directions were given for a later hearing of the extension, leave, fresh-evidence, and substantive issues.

• Court of Appeal (Criminal Division): On the Attorney General’s reference, substituted a discretionary life sentence for the Crown Court’s determinate sentence. The earlier decision is not separately cited in the judgment.

• Preston Crown Court: On 14 October 2002, sentenced the applicant for two arson offences to five years’ imprisonment and activated one year of an earlier sentence.