The Criminal Procedure Rules 2020

Variation of sentence E+W

28.4.—(1) This rule—

(a) applies where a magistrates’ court or the Crown Court can [F1 vary, rescind or set aside a sentence, penalty or order], other than an order to which rule 44.3 applies (Setting aside a conviction or varying a costs etc. order); and

(b) authorises the Crown Court, in addition to its other powers, to do so within the period of 56 days beginning with another defendant’s acquittal or sentencing where—

(i) defendants are tried separately in the Crown Court on the same or related facts alleged in one or more indictments, and

(ii) one is sentenced before another is acquitted or sentenced.

(2) The court—

(a) may exercise its power—

(i) on application by a party, or on its own initiative,

(ii) at a hearing, in public or in private, or without a hearing; and

(b) must announce, at a hearing in public—

(i) a decision to vary or rescind a sentence or order, or to refuse to do so, and

(ii) the reasons for that decision.

(3) A party who wants the court to exercise that power must—

(a) apply in writing as soon as reasonably practicable after—

[F2 (i) the sentence, penalty or order that that party wants the court to vary, rescind or set aside, or]

(ii) where paragraph (1)(b) applies, the other defendant’s acquittal or sentencing;

(b) serve the application on—

(i) the court officer, and

(ii) each other party; and

(c) in the application—

[F3 (i) explain why the sentence, penalty or order should be varied, rescinded or set aside,]

(ii) specify the variation that the applicant proposes, and

(iii) if the application is late, explain why.

(4) The court must not exercise its power in the defendant’s absence unless—

(a) the court makes a variation—

(i) which is proposed by the defendant, or

(ii) the effect of which is that the defendant is no more severely dealt with under the sentence as varied than before; or

(b) the defendant has had an opportunity to make representations at a hearing (whether or not the defendant in fact attends).

(5) The court may—

(a) extend (even after it has expired) the time limit under paragraph (3), unless the court’s power to vary or rescind the sentence cannot be exercised; and

(b) allow an application to be made orally.

(6) For the purposes of the announcement required by paragraph (2)(b), the court need not comprise the same member or members as the court by which the decision to be announced was made.

[Note. Under section 142 of the Magistrates’ Courts Act 1980(1), in some cases a magistrates’ court can vary or rescind a sentence or other order that it has imposed or made, if that appears to be in the interests of justice. The power cannot be exercised if the Crown Court or the High Court has determined an appeal about that sentence or order. See also rule 44.3 (Setting aside a conviction or varying a costs etc. order), which governs the exercise by a magistrates’ court of the power conferred by section 142 of the 1980 Act in the circumstances to which that rule applies.

[F4 Under section 16M of the 1980 Acta magistrates’ court can set aside a penalty imposed under section 16I of the Act on a defendant who accepts the automatic online conviction option under section 16H if the amount of the penalty appears to the court to be unjust. If the court sets aside such a penalty it may impose any sentence that it could have imposed for the offence if the defendant had pleaded guilty at the first opportunity.]

Under [F5 section 385 of the Sentencing Act 2020], the Crown Court can vary or rescind a sentence or other order that it has imposed or made. The power cannot be exercised—

(a) after the period of 56 days beginning with the sentence or order (but see the note below); or

(b) if an appeal or application for permission to appeal against that sentence or order has been determined.

Under [F5 section 385(7) of that Act], Criminal Procedure Rules can extend that period of 56 days where another defendant is tried separately in the Crown Court on the same or related facts alleged in one or more indictments.]

Textual Amendments

F1 Words in rule 28.4(1)(a) substituted (2.10.2023) by The Criminal Procedure (Amendment No. 2) Rules 2023 (S.I. 2023/786), rules 1, 11(a)

F2 Rule 28.4(3)(a)(i) substituted (2.10.2023) by The Criminal Procedure (Amendment No. 2) Rules 2023 (S.I. 2023/786), rules 1, 11(b)

F3 Rule 28.4(3)(c)(i) substituted (2.10.2023) by The Criminal Procedure (Amendment No. 2) Rules 2023 (S.I. 2023/786), rules 1, 11(c)

F4 Words in rule 28.4 Note inserted (2.10.2023) by The Criminal Procedure (Amendment No. 2) Rules 2023 (S.I. 2023/786), rules 1, 11(d)

F5 Words in rule 28.4 Note substituted (8.2.2021) by The Criminal Procedure (Amendment) Rules 2021 (S.I. 2021/40), rules 2, 14(c)

Commencement Information

I1 Rule 28.4 in force at 5.10.2020, see Preamble

(1)

1980 c. 43; section 142 was amended by sections 26 and 29 of, and Schedule 3 to, the Criminal Appeal Act 1995 (c. 35).