Hudson, R. v

After the 56-day period in section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 has expired, the Crown Court cannot make a substantive alteration to the sentence pronounced. This remains so where the judge had stated an intention to impose a longer sentence but made an error of law when calculating its effect.

A limited correction of custody-credit days, which leaves the recorded sentence unchanged, is materially different. It cannot justify replacing a substantially shorter sentence with a longer one outside the statutory period.

Following a retrial for rape, the applicant was sentenced on 9 July 2010 to three years and 215 days’ imprisonment, with 49 days to count. The judge had intended that the appropriate sentence was six years, but had misunderstood the effect of earlier custody and of the sentence’s commencement date after the applicant’s first conviction had been quashed.

More than 56 days later, the judge varied the sentence to six years’ imprisonment, with 54 days to count. The applicant appealed against that variation. The issue was whether it was a permissible correction of an error or an unlawful substantive variation outside section 155 of the Powers of Criminal Courts (Sentencing) Act 2000.

1. Appeal allowed. The Crown Court had no power, after the 56-day period, to replace the sentence of three years and 215 days with a sentence of six years’ imprisonment. The November 2010 variation was unlawful and was quashed.

2. Section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 permits a Crown Court to vary or rescind a sentence only within 56 days of its imposition. The power is important for curing errors, including unlawful sentences, but finality in sentencing requires the statutory limit to be observed.

3. The court accepted that R v Gordons & Ors [2007] EWCA Crim 165 contemplated very limited out-of-time correction where an error concerning custody credit could be corrected without changing the overall sentence imposed. The approach discussed in Nnanji & Ors [2009] EWCA Crim 468 likewise concerned errors in calculating days to be credited for time on remand.

4. Those authorities did not govern this case. The error was not an administrative adjustment to credited days. The sentence actually pronounced was significantly lower than the sentence which the judge had intended, and the proposed amendment would materially increase its term. The judge’s stated intention could not convert that substantive alteration into a correction.

5. The original sentence of three years and 215 days’ imprisonment, with 49 days to count, therefore remained in force, although it meant that the applicant would serve less time than the sentencing judge had intended.

• Court of Appeal (Criminal Division) — allowed the appeal against sentence and quashed the out-of-time variation: [2011] EWCA Crim 906.
• Manchester Crown Court — after a retrial, imposed a sentence of three years and 215 days’ imprisonment on 9 July 2010, with 49 days to count; on 25 November 2010 it purported to vary that sentence to six years’ imprisonment.
• Court of Appeal (Criminal Division) — on 28 April 2009 quashed the applicant’s earlier rape conviction and ordered a retrial.
• Manchester Crown Court — imposed a six-year sentence after the original conviction, with 54 days to count.