R v Sadnam Singh & Anor

An application under section 36 of the Criminal Justice Act 1988 may be heard in an offender’s absence after voluntary deportation where the court can ensure a fair hearing. Voluntary removal does not automatically establish waiver or require a stay. The court must consider the circumstances of the absence, continued legal representation, the limited nature of sentencing review, and the public interest. If a fair hearing cannot take place, continuation may be an abuse of process.

A sentence is unduly lenient only where it falls outside the range reasonably open to the sentencing judge. Concurrent sentences remain permissible where the total sentence reflects the whole criminality and is just and proportionate.

The Solicitor General applied under section 36 of the Criminal Justice Act 1988 for leave to review sentences imposed on Sadnam Singh and Hamze Awfarah as unduly lenient. Singh had received 30 months’ imprisonment for sexual assaults and was removed to India under the Early Removal Scheme before the application was heard. Awfarah had received three years’ imprisonment for a series of robbery, attempted robbery, theft, burglary and bladed-article offences, and was deported to the Netherlands before the hearing.

The central questions were whether the applications could fairly proceed in the respondents’ absence and, if so, whether the sentences were unduly lenient.

1. Removal and statutory framework. The court held that section 34(2) of the UK Borders Act 2007 did not prevent deportation orders being made while these references were pending. However, the prison governors should not have authorised removal under the Early Removal Scheme. The relevant guidance required removal to await conclusion of the proceedings, and an increased sentence would also have increased the period before removal under section 260 of the Criminal Justice Act 2003.
2. Fair hearing in absence. Applying R v Jones [2002] UKHL 5 and R v Maxwell [2010] UKSC 48, the court held that continuation would be impermissible if a fair hearing could not take place. The first abuse-of-process category was potentially engaged, but the second was not: there had been no deliberate manipulation and continuation would not damage the integrity of the criminal justice system. It was unnecessary to decide whether the respondents had completely waived their right to attend.
3. The applications concerned sentencing rather than guilt, and could therefore more readily proceed in absence. Both respondents were represented by the lawyers who had represented them at sentence. The issue of undue leniency had to be decided on the material available to the sentencing judges; later material could be considered only at the separate discretionary stage concerning any substituted sentence. The court concluded that both respondents could receive a fair hearing and that there was no breach of Article 6. The applications also had utility in maintaining public confidence and ensuring that any increased sentence would apply if either respondent returned to the United Kingdom. The court stressed that the decision depended on the particular circumstances and should not be treated as automatic in future cases.
4. Undue leniency. Applying Attorney-General’s Reference (Egan) [2022] EWCA Crim 1751, the court reiterated that the first-instance judge is well placed to assess competing factors and that intervention is confined to exceptional, non-borderline cases involving gross error. Singh’s offences fell within category 1A, with a four-year starting point and significant aggravating features. Thirty months was outside the reasonably appropriate range. Leave was granted, the reference allowed, and the principal sentence was increased to four years, with the concurrent six-month sentence remaining.
5. In Awfarah’s case, the court applied the totality principle. Concurrent sentences were permissible, but the overall sentence had to reflect all the offending, its harm and culpability, aggravating and mitigating factors, and remain just and proportionate. The four-year notional period failed to reflect six separate armed attacks on convenience stores. The court substituted a six-year notional period, reduced by 25 per cent for the guilty pleas, producing concurrent sentences of four and a half years. The total sentence was therefore four and a half years.

• Court of Appeal (Criminal Division) — On applications under section 36 of the Criminal Justice Act 1988, leave was granted and both references were allowed. Singh’s sentence was increased to four years. Awfarah’s total sentence was increased to four and a half years.
• Crown Court at Preston — Sadnam Singh was sentenced to 30 months’ imprisonment for two sexual assaults.
• Crown Court at Sheffield — Hamze Awfarah was sentenced to three years’ imprisonment for eight offences, concurrent.