C3C4C5C6C7C8 Part IV Reviews of Sentencing

Annotations:
Modifications etc. (not altering text)
C3

Pt. IV (ss. 35-36) applied (E.W.)(1.3.1994) by S.I. 1994/119, art.2 (which Order was revoked (16.5.2006) by S.I. 2006/1116, art. 3, Sch. 2)

C4

Pt. IV (ss. 35-36) applied (E.W.) (8.2.1995) by S. I. 1995/10, art.2 (which Order was revoked (16.5.2006) by S.I. 2006/1116, art. 3, Sch. 2)

Pt. IV (ss. 34-36) applied (8.4.1996) by S.R. 1996/40, art. 2

Pt. IV (ss. 34-36) applied (21.8.2000) by S.I. 2000/1924, art. 2 (which Order was revoked (16.5.2006) by S.I. 2006/1116, art. 3, Sch. 2)

35 Scope of Part IV.

1

A case to which this Part of this Act applies may be referred to the Court of Appeal under section 36 below.

2

Subject to Rules of Court, the jurisdiction of the Court of Appeal under section 36 below shall be exercised by the criminal division of the Court, and references to the Court of Appeal in this Part of this Act shall be construed as references to that division.

3

This Part of this Act applies to any case F1—

a

of a description specified in an order under this section; or

b

in which sentence is passed on a person—

i

for an offence triable only on indictment; or

ii

for an offence of a description specified in an order under this section

4

The Secretary of State may by order made by statutory instrument provide that this Part of this Act shall apply to any case F2of a description specified in the order or to any casein which sentence is passed on a person for an offence triable either way of a description specified in the order.

5

A statutory instrument containing an order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

6

In this Part of this Act “sentence” has the same meaning as in the M1Criminal Appeal Act 1968, except that it does not include an interim hospital order under Part III of the M2Mental Health Act 1983, and “sentencing” shall be construed accordingly.

7

In its application to Northern Ireland, this section shall have effect subject to the modifications set out in subsections (8) to (11).

8

Subsection (2) shall be omitted.

9

In this section—

  • “offence triable only on indictment” means an offence punishable only on conviction on indictment;

  • “offence triable either way” means an offence punishable on conviction on indictment or on summary conviction.

F199A

Any reference in subsection (4) to the Secretary of State must be construed as a reference to the Department of Justice in Northern Ireland.

10

For subsection (5) there shall be substituted—

5

An order under subsection (4) above shall be a statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (and not a statutory instrument), and any F20such order shall be subject to negative resolution (within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954).

11

The references in subsection (6) to the M3Criminal Appeal Act 1968 and Part III of the M4Mental Health Act 1983 shall be respectively construed as references to Part I of the M5Criminal Appeal (Northern Ireland) Act 1980 and Part III of the M6Mental Health (Northern Ireland) Order 1986.

C1C236 Reviews of sentencing.

1

If it appears to the Attorney General—

a

that the sentencing of a person in a proceeding in the Crown Court has been unduly lenient; and

b

that the case is one to which this Part of this Act applies,

he may, with the leave of the Court of Appeal, refer the case to them for them to review the sentencing of that person; and on such a reference the Court of Appeal may—

i

quash any sentence passed on him in the proceeding; and

ii

in place of it pass such sentence as they think appropriate for the case and as the court below had power to pass when dealing with him.

2

Without prejudice to the generality of subsection (1) above, the condition specified in paragraph (a) of that subsection may be satisfied if it appears to the Attorney General that the judge

F3a

erred in law as to his powers of sentencing; or

b

failed to impose a sentence required by—

F23zi

section F271(2B) or 1A(5) of the Prevention of Crime Act 1953;

i

section 51A(2) of the Firearms Act 1968;

F22ia

section F28139(6B), 139A(5B) or 139AA(7) of this Act;

ii

section 110(2) or 111(2) of the Powers of Criminal Courts (Sentencing) Act 2000; F4 . . .

iii

F5sectionF24224A, 225(2) or 226(2) of the Criminal Justice Act 2003.

F6or

iv

under section 29(4) or (6) of the Violent Crime Reduction Act 2006.

.

3

For the purposes of this Part of this Act any two or more sentences are to be treated as passed in the same proceeding if they would be so treated for the purposes of section F711 of the Criminal Appeal Act 1968.

F83A

Where a reference under this section relates to an order under subsection (2) of section 269 of the Criminal Justice Act 2003 (determination of minimum term in relation to mandatory life sentence), the Court of Appeal shall not, in deciding what order under that section is appropriate for the case, make any allowance for the fact that the person to whom it relates is being sentenced for a second time.

4

No judge shall sit as a member of the Court of Appeal on the hearing of, or shall determine any application in proceedings incidental or preliminary to, a reference under this section of a sentence passed by himself.

5

Where the Court of Appeal have concluded their review of a case referred to them under this section the Attorney General or the person to whose sentencing the reference relates may refer a point of law involved in any sentence passed on that person in the proceeding to F9the Supreme Court for its opinion , and F10the Supreme Court shall consider the point and give its opinion on it accordingly, and either remit the case to the Court of Appeal to be dealt with or F11itself deal with the case.

6

A reference under subsection (5) above shall be made only with the leave of the Court of Appeal or F12the Supreme Court ; and leave shall not be granted unless it is certified by the Court of Appeal that the point of law is of general public importance and it appears to the Court of Appeal or F12the Supreme Court (as the case may be) that the point is one which ought to be considered by F12the Supreme Court .

7

For the purpose of dealing with a case under this section the F13Supreme Court may exercise any powers of the Court of Appeal.

8

The supplementary provisions contained in Schedule 3 to this Act shall have effect.

9

In the application of this section to Northern Ireland—

a

any reference to the Attorney General shall be construed as a reference to the F21Director of Public Prosecutions for Northern Ireland ;

F14aa

the reference to section 51A(2) of the Firearms Act 1968 shall be construed as a reference to Article 70(2) of the Firearms (Northern Ireland) Order 2004;

ab

the reference to section 29(4) or (6) of the Violent Crime Reduction Act 2006 shall be construed as a reference to paragraph 2(4) or (5) of Schedule 2 to that Act; F15 . . .

F16ac

the reference to any of sections 225 to 229 of the Criminal Justice Act 2003 shall be construed as a reference to either of Articles 13 and 14 of the Criminal Justice (Northern Ireland) Order 2008.

b

the references to sections F1711 and 35(1) of the M7Criminal Appeal Act 1968 shall be construed as references to sections 10(2) and 33(1) of the M8Criminal Appeal (Northern Ireland) Act 1980, respectively.F18, F25and

c

the reference in subsection (3A) to an order specified in subsection (3B) shall be construed as a reference to an order under Article 5(1) of the Life Sentences (Northern Ireland) Order 2001.

F26and

d

subsection (2)(b) shall be read as if it included a reference to a sentence required by section 7(2) of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015.