AB, R. v (Rev 1)

On a retrial following a successful conviction appeal, the restriction in paragraph 2(1) of Schedule 2 to the Criminal Appeal Act 1968 is assessed by comparing the provisional total sentence with the sentence for the corresponding offences at the first trial. The judge must consider the whole circumstances, including totality, guilty-plea credit, different release regimes and the punitive effect of ancillary orders. A sentence may be longer without being of greater severity. The assessment is fact-sensitive; there is no rule that all custodial sentences have equal severity. Here, the increased sentence was lawful because the original sentence had been reduced to achieve totality across two victims. The appeal was dismissed.

AB was convicted in 2017 of historic sexual offences against BM and CB and received an aggregate sentence of 14 years’ imprisonment. The convictions were quashed on appeal and a retrial was ordered: [2019] EWCA Crim 875. The prosecution subsequently offered no evidence on the offences concerning CB.

At the 2020 retrial AB was convicted of offences against BM and sentenced to 7 years 9 months’ imprisonment. He argued that this exceeded the original 7-year sentence for the BM offences and therefore breached paragraph 2(1) of Schedule 2 to the Criminal Appeal Act 1968. A further ground concerning release provisions was abandoned. The central issue was how to assess whether the retrial sentence was of greater severity.

Disposition. Leave to appeal was granted and the appeal was dismissed. The sentence of 7 years 9 months’ imprisonment was longer than the original sentence for the BM offences, but it was not of greater severity within paragraph 2(1) of Schedule 2 to the Criminal Appeal Act 1968.

1. The court treated paragraph 2(1) of Schedule 2 as analogous to section 11(3) of the Act. R v KPR [2018] EWCA Crim 2537 established that the differences in wording did not materially alter the relevant considerations. The comparison must be made by taking the case as a whole, meaning the totality of the matters for which the offender was sentenced, as explained in R v Sandwell (1985) 80 Cr App R 78.
2. The judge should first determine the appropriate retrial sentence in the usual way, without regard to the original sentence. The provisional sentence must then be compared with the corresponding original sentence. The comparison must account for guilty-plea credit, totality, different release regimes and the punitive effect of non-custodial orders. The judge must consider automatic release, parole eligibility and licence consequences where relevant. The court accepted the distinction between punitive orders and ameliorative or remedial orders, following the reasoning in R v Bennett (1968) 52 Cr. App. R. 514 and R v Searles [2012] EWCA Crim 2685.
3. The court agreed with the obiter reasoning in R v Skanes [2006] EWCA Crim 2309 that the statutory restriction is against greater severity, not simply a longer sentence. There is no rule that all prison sentences are of equal severity regardless of length.
4. The original 14-year sentence covered offending against both BM and CB. The BM sentences had been reduced to reflect totality. Since the retrial sentence concerned BM alone, it did not require the same reduction. It was therefore not more severe than the sentence that would have been imposed at the original hearing absent the totality adjustment. The missing conviction on count 3 was immaterial because it had attracted only a short concurrent sentence.
5. The abandoned release ground was correctly abandoned. The Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 applies by reference to individual sentences, not the aggregate term. Each individual sentence here was below seven years, so the two-thirds release provision did not apply. The court suggested that a transcript of the original sentencing remarks should be obtained whenever a retrial is ordered.

• Court of Appeal (Criminal Division): in the earlier appeal, the convictions were quashed and a retrial was ordered on 23 May 2019; [2019] EWCA Crim 875.
• Snaresbrook Crown Court: following retrial convictions on 19 November 2020, AB was sentenced on 26 November 2020 to 7 years 9 months’ imprisonment for the offences concerning BM.
• Court of Appeal (Criminal Division): leave to appeal against sentence was granted and the appeal was dismissed.