R v Syed Minhaz Ahmed

Time limits governing applications under Schedule 3 to the Criminal Justice Act 1988 are to be applied strictly. Where the statutory scheme fixes a period for applying to refer a point of law to the Supreme Court and makes no provision for extension, the court has no implied power to extend time. A general power in the Criminal Procedure Rules cannot override that statutory limit. An out-of-time application is invalid. In the alternative, a sentencing judge may depart from applicable guidelines under section 59 of the Sentencing Act 2020 only where following them would be contrary to the interests of justice and the circumstances are sufficiently unusual. A previous sentencing date does not itself justify using superseded guidelines.

The Attorney General referred a four-year sentence imposed on Ahmed for causing death by dangerous driving as unduly lenient. On 27 October 2023, the Court of Appeal quashed that sentence and substituted one of eight years: [2023] EWCA Crim 1537. Ahmed subsequently sought, under section 36(5) of the Criminal Justice Act 1988, to refer a point of law to the Supreme Court. The Registrar refused to accept the application as out of time. Ahmed applied for an extension, raising whether the Court of Appeal had power to extend the 14-day period and, alternatively, whether his proposed sentencing-guidelines point was of general public importance.

Application refused. The Court of Appeal held that Ahmed’s application under section 36(5) of the Criminal Justice Act 1988 was invalid because it was made outside the statutory period.

1. Paragraph 4 of Schedule 3 requires an application for leave to refer a point of law to the Supreme Court to be made within 14 days beginning when the Court of Appeal concludes its review. The language of Schedule 3 is unequivocal and contains no power to extend that period.
2. The contrast with section 34(2) of the Criminal Appeal Act 1968, which expressly permits an extension of the ordinary appeal period, supported that conclusion. The notes to the Criminal Procedure Rules are not law, but are persuasive confirmation. The general power in CPR 36.3 to extend time operates only where consistent with other legislation and therefore cannot apply to the Schedule 3 period.
3. The strict approach protects certainty. A law officer’s reference exposes an offender to further sentence review, while a further application after sentence has been increased affects victims’ interests in speed and finality. An offender has access to representation at the relevant hearing and is expected to comply with the 14-day period.
4. The proposed analogy with R (on the application of Legal Aid Casework) v Crown Court at Southwark [2021] EWHC 397 (Admin) did not alter the result. That case concerned statutory regulations, whereas the present scheme used unequivocal language and was materially different.
5. For completeness, the court considered the substantive point. Section 59 of the Sentencing Act 2020 permits departure from sentencing guidelines where the circumstances of the offence or offender are sufficiently unusual to make compliance contrary to the interests of justice. The sentencing judge had not exercised that power. She had simply used the earlier guidelines because sentencing had originally been listed while they were in force. That was an error.

Even if an extension power had existed, the court would have refused to certify a point of law of general public importance.

1. Court of Appeal (Criminal Division): on 27 March 2024, refused Ahmed’s application for an extension of time under section 36(5) of the Criminal Justice Act 1988: [2024] EWCA Crim 306.
2. Court of Appeal (Criminal Division): on 27 October 2023, quashed the four-year sentence imposed on the Attorney General’s reference and substituted a sentence of eight years: [2023] EWCA Crim 1537.
3. Crown Court at Snaresbrook: imposed the original sentence of four years’ imprisonment.