Shaw, R. v

An appellate court reviews the sentencing decision made in the Crown Court. It will ordinarily interfere only if the sentence was unlawful, wrong in principle or manifestly excessive when imposed.

Compassionate release because of a prisoner's later medical condition is normally a matter for the Secretary of State under section 248(1) of the Criminal Justice Act 2003. The appellate court should usually leave that decision to the Secretary of State, who can obtain current medical evidence and determine whether exceptional compassionate circumstances justify release on licence.

The applicant had received a total sentence of three years' imprisonment after guilty pleas to possession of amphetamine with intent to supply, handling a stolen vehicle, possession of heroin and dangerous driving. He later suffered a serious stroke in prison.

He sought an extension of time and leave to appeal against sentence. He accepted that the sentences were neither unlawful nor manifestly excessive. His sole submission was that the court should reduce the sentence on compassionate grounds so that he could obtain treatment in the community.

The central issue was whether compassionate release in light of post-sentence medical developments was for the Court of Appeal or the Secretary of State.

1. The court refused an extension of time and leave to appeal against sentence. Any appeal would be bound to fail because the total sentence was neither unlawful, wrong in principle nor manifestly excessive when imposed.

2. The Court of Appeal's function is to review the sentencing process in the Crown Court. Later events, such as progress in prison, may sometimes be relevant, but ordinarily only after the court has already found the original sentence excessive or unduly lenient and is deciding the substitute sentence.

3. Section 248(1) of the Criminal Justice Act 2003 permits the Secretary of State to release a fixed-term prisoner on licence where exceptional circumstances justify compassionate release. That power is discretionary and may be subject to judicial review only on ordinary public-law grounds.

4. Where a prisoner relies on a serious post-sentence medical condition as a compassionate ground for release, the appropriate course will normally be to leave the question to the Secretary of State. The Secretary of State can obtain full and current medical evidence about the prisoner's condition, prognosis and future treatment. The court expressed no view on the merits of any application for release on licence.

• Court of Appeal (Criminal Division): refused the application for an extension of time and leave to appeal against sentence: [2010] EWCA Crim 982.
• Crown Court: imposed consecutive sentences totalling three years' imprisonment for the offences to which the applicant pleaded guilty.