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Witness Care Officers' Toolkit: Information To Victims Of Crime About Sentencing And Appeals

Introduction

What is the toolkit?

This basic toolkit has been designed to help witness care officers to comply with their obligations to provide information about sentencing and appeals in accordance with the Victims' Code and with the NWNJ minimum standards.

Why do we need it?

The Code of Practice for Victims' of Crime (The Victims' Code) sets out the minimum level of services to be provided to victims of criminal conduct in England and Wales.

The obligations of joint police/CPS witness care units (WCU) are set out in section 6 of the Victims' Code.

Sentencing

Section 6.8 states:


'The joint police/CPS Witness Care Units must explain to victims the meaning and effect of the sentence given to the offender in their case, and respond to any questions the victim may have. If the joint police/CPS Witness Care Unit is not able to answer the questions asked by the victim, they should refer the victim to the CPS.'

An explanation, under section 6.8 may be in writing, by telephone, or face to face, depending on the preferred method of communication of the individual victim. Similarly, how the WCU responds to any questions that a victim may have will depend on the victim's choice of communication.

No Witness No Justice (NWNJ) sets out minimum requirements for WCUs. Annex C of NWNJ states that the minimum requirement for informing a victim of a sentence or outcome is as follows:

'It is a minimum requirement that all witnesses are informed of the outcome and sentences for cases following a trial or where a late guilty plea is entered. Where there is an adjournment for sentence following an outcome it is a minimum requirement that an additional contact is made to inform witnesses of the sentence.'

Appeals

Section 6.12 states:

'6.12 If a person who has been convicted of an offence at the Magistrates' Court in respect of relevant criminal conduct appeals against their conviction or sentence to the Crown Court, the joint police/CPS Witness Care Units must inform all victims of the appeal no later than one working day after the joint police/CPS Witness Care Units are notified by the courts that an appeal notice has been lodged. When giving this information, the joint police/CPS Witness Care Units must make all victims aware of the Witness Service and explain that they will refer their details to the Witness Service unless they ask the police not to do so.'

Section 6.13 states:

'6.13 If a person who has been convicted of an offence at the Crown Court in respect of relevant criminal conduct appeals against their conviction or sentence to the Court of Appeal, the joint police/CPS Witness Care Units must inform any vulnerable or intimidated victim and the Probation Service victim contact team of the appeal no later than one working day after the joint police/CPS Witness Care Units are notified by the Appeal Court that leave to appeal has been granted and a hearing in a designated format will occur, and must inform any other victim no later than five working days after that day. When giving this information, the joint police/CPS Witness Care Units must make both vulnerable or intimidated victims and other victims aware of the Witness Service and explain that they will refer their details to the Witness Service unless they ask the police not to do so.'

Section 6.14 states:

'6.14 The joint police/CPS Witness Care Units must inform any vulnerable or intimidated victim and the Probation Service victim contact team of the result of an appeal in respect of relevant criminal conduct no later than one working day after the day the joint police/CPS Witness Care Unit is notified by the court of the result, and any other victim no later than four working days after that day.'

No Witness No Justice (NWNJ) sets out minimum requirements for WCUs. Annex C of NWNJ states that the minimum requirement for informing a victim of an appeal against conviction or sentence, and the outcome of the appeal is as follows:
Where there is an appeal against a sentence, the minimum requirement is that all witnesses are informed of the sentence passed on appeal.

What will the toolkit do?

For sentencing issues, the toolkit aims to:

  • Provide basic information about the various sentences and orders that a court may make
  • Explain what can happen if a defendant fails to comply with the sentence imposed by the court
  • Explain the meaning of related issues such as licence and parole
  • Explain what options there may be when a victim is dissatisfied with a sentencing outcome
  • Provide useful links to other, more detailed, sources of information

For appeals issues, the toolkit aims to:

  • Provide basic information about the different types of appeal proceedings
  • Explain what the consequences of an appeal may be for the victim
  • Provide useful links to other, more detailed, sources of information

How can I use the toolkit?

The toolkit is designed to be used electronically, but you can download material from any of the links referred to and keep it as a hard copy reference. There is a danger however that this material may go out of date. You should therefore make sure that any hard copy material is current before using it to explain a sentence or what happens in cases where there is an appeal.

What if we already have our own materials to help us explain sentences?

The toolkit is a basic resource. Individual witness care units may wish to customise the toolkit to add information that is of particular relevance to them, such as information about offender treatment programmes being run in their area. You will be able to get information about this from your local probation team.

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Sentencing

Sentencing - General Information

When a person pleads guilty or is found guilty of an offence, the court which convicted him/her must sentence in accordance with the law.

What does the court have to consider when sentencing an offender?

When sentencing an offender, the court has to take a number of factors into account. These include: 

  • The type of offence (some offences can only be heard by magistrates' court, some only by a Crown Court)
  • Which court is dealing with the defendant (the magistrates' court can only impose a maximum sentence of imprisonment of 6 months per offence up to a maximum of 12 months and a maximum fine of £5,000)
  • The sentence that the law allows (every criminal offence has a maximum sentence, depending on which court deals with it
  • The circumstances and history of the offender, such as previous convictions, or being of good character
  • Sentencing guidelines, which take account of various factors such as the seriousness of the offence, including aggravating and mitigating factors and the harm that has been caused
  • The statutory purposes of sentencing, which are; punishing the offender, reducing crime, rehabilitating the offender, protecting the public, and the offender making reparation. The sentence decided on may well reflect a combination of these aims

What are sentencing guidelines?

Sentencing guidelines help magistrates and judges to make their decisions on sentencing. They are intended to encourage consistency in sentencing. Guidelines must be followed, unless there are very good reasons "in the interests of justice" not to follow them. In such a case, the court has to give reasons why it did not follow the guideline.

Guidelines are produced by the Sentencing Guidelines Council, following a process of consultation. From April 2010, the Sentencing Guidelines Council will be replaced by the Sentencing Council, but its role will be essentially the same.

What information will a court have to help with sentencing decisions?

A court may obtain a pre-sentence report or other specialist reports to help in reaching a decision about the appropriate sentence. This will be especially important when a court is considering making a community order, or considering a custodial sentence.

How does the court know what impact the crime might have had on a victim?

If the victim has chosen to make a victim personal statement (VPS) the court will be made aware of that statement in accordance with the guidance on victim personal statements.

What happens when an offender is sentenced for a "hate crime", such as a racially or religiously aggravated offence, or if any offence has been motivated, at least in part, by hostility based on race, religion, sexual orientation or disability?

Some crimes can either be prosecuted as a specific "aggravated" offence (for example, racially aggravated assault) or it may be possible to prove that any offence was aggravated by hostility based on certain factors. If this is the case, the court has a duty to increase the sentence because of the hostility, and must say clearly that it has done so. At present, the factors that can be taken into account by the court when sentencing include hostility based on race, religion, sexual orientation or disability (which includes mental health issues or learning disability). The CPS has developed a range of policy statements that deal with various types of hate crime. Each policy statement explains various aspects of prosecuting hate crime, including sentencing.

Sentencing Adult Offenders

What sentences can the court pass for adult offenders?

A range of sentences are available to the court. The main ones are: 

  • Discharge
  • Fine
  • Community Order
  • Custodial sentence

There are different sentences applying to young offenders, which are set out in more detail below in Sentencing Young Offenders.

What is a discharge?

A discharge can be either conditional or absolute. A conditional discharge means that the defendant is not punished immediately but if he re-offends within a given period, he may be punished for that offence as well as for any new offence. An absolute discharge means that no further punishment will be imposed.

What is a fine?

The defendant will have to pay a sum of money to the court. The court will fix the amount of the fine to reflect the seriousness of the offence and to take account of the financial circumstances of the offender. The offender will also be required to pay the statutory Victim Surcharge (currently £15), which goes into a central fund aimed at helping to improve services for victims of crime.

What is a Community Order?

A Community Order combines punishment with changing offenders' behaviour and making amends - sometimes directly to the victim of the crime. It can also encourage the offender to deal with any problems that might be behind their criminal behaviour - like addiction to drugs or alcohol. The available elements of a community order are: 

  • Compulsory (unpaid) work, sometimes known as Community Payback;
  • Participation in specified activities;
  • Programmes aimed at changing offending behaviour;
  • Prohibition from specified activities;
  • Curfew;
  • Exclusion from certain areas;
  • Residence requirement;
  • Mental health treatment (with consent of the offender);
  • Drug treatment and testing (with consent of the offender);
  • Alcohol treatment (with consent of the offender);
  • Supervision;
  • Attendance centre (for offenders under 25).

Where can I find out more about the different elements of community sentences?

The DirectGov website provides a very useful guide to each of the available elements of a community order. You may find this useful to help you in explaining community sentences to a victim and what this might mean in their particular case.

What happens if an offender doesn't comply with the terms of a community order?

The court has two options. It can either amend the terms of the original order to make the requirements more onerous, or it can revoke the order and resentence the offender for the original offence.

What is a custodial sentence?

A custodial sentence, also known as a sentence of imprisonment, or detention, is where the offender is detained in custody for a period of time. The length of the sentence will depend on the maximum penalty available for that crime, and the seriousness of the offence or offences involved. The type of custody will depend on the age of the offender.

When will the court send an offender to prison?

The law states that a custodial sentence must not be imposed unless the offence was "so serious that neither a fine alone, nor a community sentence can be justified for the offence" (section 153 Criminal Justice Act 2003).

Guidance to magistrates and judges about imposing custodial sentences is set out in the Sentencing Guidelines Council's definitive guideline Overarching Principles: Seriousness. You can access this from the Sentencing Guidelines Council website. Offenders sent to prison will usually serve half of their sentence in custody and the second half in the community "on licence" under the supervision of the Probation Service.

What is meant by a maximum term of imprisonment?

All offences have a maximum penalty set out in law. If a case is dealt with in a magistrates' court, the maximum sentence of imprisonment is six months. In the Crown Court, which deals with more serious crimes, the maximum sentence will depend on the type of offence and the maximum penalty that the law allows for that offence. A limited number of crimes have a minimum sentence that the court has to impose (unless there are exceptional circumstances).

Which crimes attract minimum sentences?

The requirement to pass minimum sentences only applies in a very few, serious cases. They are:

  • The only sentence for murder is imprisonment for life
  • Certain serious sexual or violent offences attract an automatic life sentence the second time an offender is convicted of one of them. For qualifying offences committed after 4 April 2005, this penalty has been replaced with new public protection sentences (see Indeterminate sentences for public protection below)
  • A minimum 7 year prison sentence for third-time conviction for trafficking in Class A drugs. This provision applies to importation, production, supplying and possession with intent to supply Class A drugs. Sentences in individual cases could be more: the maximum penalty for these offences is life imprisonment
  • A minimum 3 year prison sentence for third-time conviction for domestic burglary. The maximum penalty for burglary is 14 years imprisonment
  • A minimum 5 year prison sentence for possession or distribution of prohibited weapons or ammunition. The maximum penalty is 10 years imprisonment

What are the different types of custodial sentence that a court can order?

Determinate sentences (from 4 April 2005)

In most cases, adult prisoners sentenced to imprisonment will be told the length of their sentence (for example, three years' imprisonment). This sort of sentence is called a determinate sentence. The period of imprisonment specified by the court is the maximum time they will stay in prison. Prisoners serving determinate sentences of more than 12 months will be released automatically at the half way point of their sentence, and the balance of the sentence will be spent "on licence" in the community. For example, an offender sentenced to a determinate sentence of imprisonment of three years will spend 18 months in prison (less any time he might have been kept in custody before he was sentenced), and then be released on licence for the remaining 18 months.

By law, the court must deduct any time that the offender has spent remanded in custody awaiting trial and sentence from any overall sentence of imprisonment, unless the court has directed that some or all of that period will not be deducted. In some cases, this might mean that although a custodial sentence is imposed, the offender is released immediately, or very soon after the sentence is imposed, because he has been in custody pending trial for some time.

Where the sentence is less than 12 months, the release provisions of the Criminal Justice Act 1991 apply. This means that the offender is the subject of "automatic unconditional release". This means that he is released automatically at the half way point of his sentence (the automatic release date) and remains subject to recall to custody for the remainder of the sentence. For example, an offender sentenced to four months' imprisonment would be released after two months in prison and would be at risk of being recalled during the remaining two months.

Some prisoners who are serving sentences of between three months or under four years may be allowed to be released on a home detention curfew (HDC), and be subject to electronic monitoring (tagging). Prisoners have to satisfy strict eligibility criteria before being considered suitable for HDC. Certain offenders are automatically excluded (dangerous offenders), and others are presumed to be excluded (for example, sex offenders).

If the offender commits further offences, or breaks any of the other conditions of his licence, he may be recalled to custody to serve some or all of the remainder of his sentence in prison. This applies to all prisoners on licence for any offence.

Indeterminate sentences for public protection (from 4 April 2005)

Where an offender is convicted of certain specified sexual or violent offences under what are called the Dangerous Offender provisions in the Criminal Justice Act 2003 and the court finds that the offender poses a substantial risk of serious harm to the public, the court can pass a sentence of imprisonment for public protection, which may be either an indeterminate or extended sentence of imprisonment. The release arrangements for prisoners sentenced to these types of imprisonment are different to determinate prisoners. These new sentences ensure that dangerous sexual and violent offenders are subject to assessment by the Parole Board and are not released from prison until and unless their level of risk to the public is assessed by the Parole Board as manageable in the community. If the risk is not reduced to a safe level, in some cases, they may never be released.

Indeterminate sentences are very complicated to explain. What do I do if I need more information about them?

Most criminal justice practitioners, including judges in the Court of Appeal, acknowledge that the "dangerous offender" sentences are very complicated to understand. Explaining them in straightforward and simple terms is not easy. If you think you need assistance in explaining the sentence, the CPS lawyer who dealt with the case may be the best person to explain what a particular sentence means.

Life sentences

A life sentence may be mandatory (for example, for offences of murder), or discretionary, which means that the offence has an available maximum sentence of life imprisonment and the court is of the opinion that the offence is so serious that only a sentence of life imprisonment is justified.

Does this mean that the offender will stay in prison for the rest of his life?

In passing either a mandatory or discretionary life sentence, the court passing the sentence must specify the minimum term that the offender must spend in prison before the Parole Board can even consider thinking about whether he is safe to release into the community. Some particularly dangerous individuals will never be safe to be released. All prisoners sentenced to life imprisonment who have been released by the Parole Board will remain on licence for the rest of their life and will be subject to being recalled at any time if they breach the conditions of their licence.

How does the Parole Board work?

You can find useful information about how the Parole Board works on their website http://www.paroleboard.gov.uk/. There is a section about victims and families and this explains how they can have their say in the parole process.

What happens if the offender is sentenced to 12 months imprisonment (or more) for a sexual or violent offence?

In such cases, the National Probation Service Victim Contact Scheme comes into effect. The scheme requires the WCU to provide the victim with a copy of the National Probation Service Victim Contact Scheme leaflet, and to explain the "opt-out" procedure under the scheme. If the victim does not notify the WCU within 10 days that he/she wishes to opt out of the scheme, the WCU must pass the victim's contact details to the relevant Probation Service Victim Liaison Officer.

Can a victim appeal if he/she is not happy about the sentence that the court imposed?

The Attorney General has the power to ask the Court of Appeal to review some sentences which she thinks are "unduly lenient" (not just "too light", but substantially less than the guidelines suggest for no apparently good reason). If the Court of Appeal agrees with the Attorney General it can increase the sentence.

This applies to a limited range of serious offences and there is a very strict time limit of 28 days from the date of sentence in which the Attorney General can refer a case.

Anyone can ask the Attorney General to look at a case. Often the Crown Prosecution Service sends the case in, but victims, their families, and members of the public can contact the Attorney General direct or people can contact a Member of Parliament.

Before doing so, or if a victim wants information about referring a sentence as an unduly lenient sentence, it will usually be appropriate to seek further guidance from the prosecutor who dealt with the case.

The circumstances in which a case can be referred to the Attorney General, as well as information about the types of case that can be referred, are explained on the Attorney General's website

Sentencing Young Offenders

Sentences for young offenders

Young offenders may be sentenced to a range of different penalties, some of which are depend on the age of the defendant. These range from fines and discharges (see above for adult offenders) through community based sentences to custody, usually called detention. A detailed guide to the disposals available for young offenders can be found on the website of the Youth Justice Board http://www.yjb.gov.uk/en-gb/practitioners/CourtsAndOrders/Disposals/.

What community based sentences are available for young offenders?

The following sentences are available for young offenders: 

  • Youth rehabilitation order 
  • Referral order 
  • Reparation order

Youth rehabilitation orders (YRO) have only been available for young offenders who committed an offence on or after 30 November 2009.

The following requirements can be attached to a YRO: 

  • Activity requirement
  • Curfew requirement
  • Exclusion requirement 
  • Local authority residence requirement
  • Education requirement
  • Mental health treatment requirement
  • Unpaid work requirement (16/17 year olds)
  • Drug testing requirement
  • Intoxicating substance treatment requirement
  • Supervision requirement
  • Electronic monitoring requirement
  • Prohibited activity requirement
  • Drug treatment requirement
  • Residence requirement
  • Programme requirement
  • Attendance centre requirement
  • Intensive supervision and surveillance requirement 
  • Intensive fostering requirement

For offences committed before 30 November 2009, the following orders continue to be available instead of the youth rehabilitation order:

  • Supervision order
  • Community rehabilitation order 
  • Community punishment order 
  • Community rehabilitation and punishment order
  • Action plan order
  • Attendance centre order

More information about these sentences is available on the Youth Justice Board website.

What custodial sentences are there for young offenders?

Young offenders will either be sentenced to a detention and training order (DTO) or to detention under section 90 or 91 Powers of Criminal Courts (Sentencing) Act 2000.

What is a DTO?

Detention and Training Orders (DTO) replaced the previously available sentences of detention in a Youth Offender Institute (YOI) for 15-17 year olds and the Secure Training Order for 12-14 year olds. The DTO can be for a term of four, six, eight, ten, 12, 18 or 24 months, half of which is served in detention, the remainder in the community under the supervision of a probation officer, social worker or a member of a Youth Offending Team (YOT). It is available for young offenders who have been convicted of an offence punishable by imprisonment in the case of someone aged 21 or over. It is available for males and females.

What is detention under section 90 or 91 PCC(S)A 2000?

Section 90

If the conviction is for murder, the sentence falls under section 90 PCC(S)A. Such sentences are termed "Detention at Her Majesty's Pleasure" and a mandatory life sentence will apply. The sentencing court will set a minimum term (also known as the tariff) to be spent in custody, after which the young person can apply to the Parole Board for release. If released, the young person will be subject to a supervisory licence for an indefinite period.

Section 91

If a young person is convicted of an offence for which an adult could receive at least 14 years in custody, they may be sentenced under section 91 PCC(S)A. The length of the sentence can be anywhere up to the adult maximum for the same offence, which for certain offences may be life. A young person given a section 91 sentence will be placed in custody. The young person will be released automatically at the halfway point and could be released up to a maximum of 135 days early on a home detention curfew.

There are three types of secure accommodation in which a young person can be placed. They are: 

  • Secure Training Centres
  • Local Authority Secure Children's Homes 
  • Young Offender Institutions (YOI)

Indeterminate detention for public protection

Where a young person is convicted at the Crown Court of a certain specified sexual or violent offence, the court may deem that person to be 'dangerous' and order a public protection sentence. The court may order an indeterminate detention for public protection, which means that the court will specify the minimum period that the offender must serve in custody before he can be considered for release. The offender will not be automatically released at the end of this period, and will not be released until the Parole Board is satisfied that the offender no longer poses a risk to the public. This is broadly comparable to a discretionary life sentence.

Extended Sentence

Where a young person is convicted at the Crown Court of a certain specified sexual or violent offence, the court may deem that person to be 'dangerous' and order a public protection sentence. The court may order an extended sentence, which means that the offender will serve a custodial term and will then be released on an extended licence period, which is longer than usual. The custodial term and the extended licence period together form the total sentence.

Indeterminate and extended sentences in youth offender cases are very complicated to explain. What do I do if I need more information about them?

Indeterminate and extended sentences are very complicated to understand. Explaining them in simple terms is not easy. If you think you need assistance in explaining the sentence, the CPS lawyer will be able to help.

Ancillary Orders

Can the court make other orders as well as the sentence?

As well as any of the sentences explained above the court can also make other orders, known as ancillary orders, depending on the nature of the offending behaviour and the circumstances of the offender.

For example, as well as a community order, an offender may also have to pay compensation to a victim for injury or damage.

Courts can also make other orders that are aimed at providing protection against offending by this defendant in the future for individuals or communities. An example of such an order is the anti-social behaviour order (ASBO).

Can the court make any order if the defendant is found not guilty of the offence?

In the event of an acquittal, in some cases the court can make a restraining order against the person concerned preventing them contacting or otherwise harassing a named individual or individuals (for example, an alleged victim). For more information about restraining orders on acquittal, go to the CPS ancillary orders toolkit (the link to the toolkit is at the end of the section "What ancillary orders are available?") and go to "restraining orders".

What ancillary orders are available?

The following is a list of the main ancillary orders that are available in addition the sentences explained above. 

  • Anti social behaviour order (following conviction for a criminal offence);
  • Compensation order
  • Confiscation order
  • Deportation (of foreign national prisoners)
  • Deprivation of property
  • Driving disqualification 
  • Disqualification from being a company director 
  • Disqualification from working with children (to be replaced by automatic barring on conviction for certain offences) 
  • Drink banning order 
  • Exclusion from licensed premises
  • Financial reporting order (Crown Court)
  • Football banning order
  • Forfeiture of drugs 
  • Forfeiture of firearms
  • Interim receiving order 
  • Notification requirements (Sexual Offenders Register)
  • Parenting order 
  • Property freezing order 
  • Publicity Order (against a company convicted of corporate manslaughter) 
  • Refusal and revocation of citizenship 
  • Remedial Order (against a company convicted of corporate manslaughter or health and safety offences causing death) 
  • Restitution order
  • Restraining order (on conviction or acquittal) 
  • Serious crime prevention order (Crown Court) 
  • Sexual Offences Prevention Order 
  • Travel Restriction Order

The CPS has published an ancillary orders toolkit that provides information about a wide range of ancillary orders, and when they may be available. This material can be accessed from the CPS website.

Sources of Further Information about Sentencing

The following websites can provide you with more detailed information about sentencing and related matters.

The CPS website. The victim and witness section provides information on a range of materials, including a short section on sentencing.

The DirectGov website which is the official government website for citizens, There is a section on Crime and Justice that is broken down into a range of topics that may be useful in dealing with a victim's or witness's questions. 

The Youth Justice Board website, which covers a range of issues relating to young offenders. Of particular interest is the "public" section which explains the court process and has a specific section for victims.

The Victim Support website, which provides information and support for victims of crime and for witnesses.

The victim and witness page of HM Courts & Tribunals Service, which provides information about the court process, with links to other topics.

The website of the Parole Board, that provides information for victims and families.

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Appeals

General Information About Appeals

When can a convicted person appeal to a higher court?

Magistrates' court or Youth Court - a person convicted by a magistrates' or Youth Court may appeal against sentence or against conviction.

In both cases, appeal is to the Crown Court. The person does not need the permission of the court to appeal. A person who wishes to appeal must lodge a notice of appeal within 21 days  of the decision against which he wishes to appeal (conviction or sentence).

Crown Court - a person convicted and/or sentenced by the Crown Court must seek leave to appeal to the Court of Appeal in all cases in relation to conviction or sentence (except where a certificate has been issued by the trial judge that the case is fit for appeal). This means that (unless the trial judge has given leave) the Court of Appeal has to agree to the appeal going ahead. There is a time limit of 28 days to lodge the notice with the Court of Appeal asking for leave to appeal. The Court of Appeal can also allow leave to appeal out of time. The initial decision to grant or refuse leave to appeal is heard by a single judge. If leave is refused by a single judge, the applicant is entitled to renew his application before a two judge or full court. If the Court of Appeal refuses leave to appeal, that is usually the end of the matter.

Can a person appeal against conviction after pleading guilty?

Generally speaking, a person may appeal against conviction provided he did not plead guilty in the first place.

In exceptional circumstances, there may be an appeal following a guilty plea. The most common example is where the defendant pleaded guilty following an incorrect ruling by the trial judge, which effectively gave the defendant no escape from a guilty verdict. Another is where fresh evidence shows the conviction to be unsafe. Only rarely would incorrect advice provide the grounds for an appeal, and then only if it went to the heart of the reason for entering a guilty plea.

It is possible for the defendant to ask to withdraw a guilty plea at any time before sentence. However, the Court of Appeal has said that this will only be appropriate in "exceptional cases".

There are other circumstances in which appeal may be possible following a guilty plea, but these also are rare. If this occurs, it will usually be appropriate to refer to the prosecuting lawyer for further information and explanation.

What happens if a person appeals against his sentence?

The appeal court will hear all the information about the offence that was presented at the earlier hearing, and will decide whether the original sentence should remain as it is, or whether it should be altered. The court can quash the sentence and substitute any other sentence or order that it thinks appropriate, provided that the offender is not dealt with more severely when the case is viewed as a whole. Put simply, this means that the court can alter the sentence, but cannot increase it.

For example a suspended sentence of imprisonment could not be substituted with an immediate term of imprisonment. Generally speaking, the court cannot increase a term of imprisonment, although in a case involving two or more offences, the court could increase the sentence for one offence, and adjust the sentence of the remaining offence(s), provided that the overall sentence was not more severe than that imposed by the lower court.

Also, the appeal court can only pass a sentence that the original court could have made. So, on hearing an appeal in the Crown Court from the magistrates' court, the Crown Court's sentencing powers are limited to those of the magistrates' court.

What happens if a person appeals against his conviction?

Appeal from a decision of the magistrates' court or Youth Court

Appeal is to the Crown Court and the court will hear the evidence again and decide if the person is guilty or not guilty.

Appeal from a decision of the Crown Court

The court must first decide if the conviction is safe and should stand. If it decides to overturn the conviction, the court can then either enter a verdict of not guilty against the accused, which is the end of the matter, or the court can overturn the conviction and send the case back to the Crown Court for a re-trial. This means that the Crown Court will hear the evidence again.

In both courts, if there is to be a re-hearing, it is likely that the witnesses will have to go to court again to give evidence.

Can the prosecutor appeal if a person is acquitted (found not guilty)?

There is no general right of appeal if a person is acquitted. The general rule was that once a person had been found not guilty of an offence, he could not be tried a second time, (this is known as the "rule against double jeopardy"). However, the law has been reformed to permit a retrial in cases of some very serious offences where there has been an acquittal in court, but compelling new evidence has subsequently come to light which indicates that an acquitted person was in fact guilty. Examples of new evidence might include DNA or fingerprint tests, or new witnesses to the offence coming forward. The main offences to which this applies are murder and other serious violent and sexual offences. It is for the Director of Public Prosecutions to decide if the prosecution should ask for a second trial.

Can the prosecutor appeal against the sentence?

A prosecutor can send a case to the Attorney General to ask him to consider referring the case to the Court of Appeal on the grounds that the sentence is "unduly lenient" (not just too light, but substantially less than the sentencing guidelines would indicate, without any apparent good reason).

If the case is referred to the Court of Appeal, the sentence may be increased if the court agrees that the original sentence imposed was "unduly lenient".

However, this form of appeal is only available for the more serious types of offence. The circumstances in which a case can be referred to the Attorney General, as well as information about the types of case that can be referred, are explained on the Attorney General's website.

There is a very strict time limit of 28 days from the date of sentence in which to refer a case.

A victim can also ask the Attorney General directly to refer a sentence on these grounds if it is a type of case that the law allows the Attorney General to refer.

It will usually be appropriate to seek further guidance from the prosecutor who dealt with the case if a victim wants information about referring a sentence as an unduly lenient sentence.

Will the court that hears the appeal have information about the impact that the crime has had on the victim?

The appeal court can take into account a Victim Personal Statement in the same way as the original court can.

Sources Of Further Information About Appeals

The following can provide you with more detailed information about appeals and the appeal process.

The website of HM Courts & Tribunal Service which provides information about the court process which includes information about the appeals process for victims. The website of the Attorney General's Office gives information about unduly lenient sentence appeals.

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