McElroy, R (on the application of) v Lewes Combined Court

Judicial review does not provide a general appeal against sentence. Intervention is justified where the sentence falls outside the reasonable range available to the sentencing court, indicating a manifest error of law. A custodial sentence may remain appropriate even where the offender has no previous convictions and significant personal mitigation. However, the maximum sentence is unlawful where the overall circumstances, including mitigation and the peripheral nature of an additional offence, do not justify it. The reviewing court may quash the excessive sentence and substitute an appropriate sentence under section 43 of the Senior Courts Act.

The claimant was convicted by Eastbourne Magistrates’ Court of assault by beating and criminal damage. His appeal to Lewes Crown Court was dismissed, and he was sentenced to six months’ imprisonment for the assault, with seven days’ imprisonment for the criminal damage to run concurrently.

He sought judicial review of the sentence, arguing that it was outside the broad area of sentencing discretion. The central issues were whether the sentence was unlawful because it was excessive and, if so, whether the Administrative Court could substitute a lesser sentence.

1. The court applied the principle stated by Lord Bingham in Truro Crown Court ex parte Adair [1997] COD 296: judicial review is not a backdoor appeal against sentence, but intervention is available where the penalty is so far outside the reasonable range as to indicate a manifest error of law.
2. The sentencing court was entitled to treat the offending as involving greater harm and higher culpability. The complainant had feared being thrown from a balcony, had suffered serious psychological harm, and the attack was related to sex. The court was also entitled to reject the submission that custody was inappropriate or should have been suspended.
3. The six-month maximum sentence was nevertheless excessive. The claimant had no previous convictions, was in his middle years, had suffered substantial personal and professional consequences, and the criminal damage was peripheral. Those mitigating features meant that the maximum sentence was not proper in all the circumstances.
4. Following Gatehouse [2001] EWCA Crim 459, the court exercised its power under section 43 of the Senior Courts Act to resentence. The six-month sentence was quashed and replaced with two months’ imprisonment. Permission was granted and the application was upheld.

not stated in the judgment.