Schedule 2, para.2(1) of the Act states: Where a person ordered to be retried is again convicted on retrial, the court before which he is convicted may pass in respect of the offence any sentence authorized by law, not being a sentence of greater severity than that passed on the original conviction.
The effect and Parliaments intention is that a defendant appealing their conviction knows that, if convicted at a retrial, they will be in no less favourable a position in relation to sentence. Without such a prohibition, the power to impose a more severe sentence after a retrial would arguably be a deterrent to appeal if the original sentence was perceived to be lenient. That proposition is supported by R. v. Elrayess [2007] EWCA Crim 2252. The appellant, convicted of money laundering, was sentenced to 50 weeks imprisonment, suspended for 12 months. Counsel settled grounds of appeal and the Criminal Appeal Office received the application. Subsequently, the appellants solicitors filed a form abandoning all proceedings in the Court of Appeal. This was based on erroneous legal advice given by counsel that, if the appeal succeeded, the court could direct a retrial and the appellant could then face a more severe sentence than that originally imposed. He subsequently applied to have the notice of abandonment treated as a nullity. That was granted and the application to appeal would be considered by the single Judge in the normal way. It can be seen the threat of a more severe sentence can operate as a deterrent to appeal.
Recent Cases
Issues with sch.2, para 2(1) arise sparingly. Recent examples are R. v. Dobson [2013] EWCA Crim 1416 and R. v. Robson [2009] EWCA Crim 1472. The issue also arose in the Danny Nightingale case before the Court Martial.
In Dobson, the court considered the position where a defendant was acquitted of one of two rape counts. After the first trial, the appellant received nine years for both rapes. After the retrial, at which he was convicted of one rape, he was given nine years. It was accepted the appellant could not legitimately complain that nine years for the one rape count was manifestly excessive. The only complaint was the sentence offended sch.2, para.2(1). The Court of Appeal took the view the appellant should not legitimately be able to consider himself as having been sentenced for offences for which he was not convicted. Accordingly, the sentence would be reduced by one year. The court considered there was force in the argument that the term original conviction could not be construed as meaning the sentence passed for the total criminality.
In Robson, the Court of Appeal held that a) a SOPO was a sentence for the purposes of sch.2, para.2(1), and b) therefore after a five-year order had been imposed after trial one, an indefinite order imposed at trial two was unlawful.
This once more highlights the puzzling absence of a duty imposed upon the Court of Appeal (and the lower courts, while were at it) to impose the correct sentence. If an indefinite order is necessary, why should such an order be barred?
Whilst the sch.2 restriction on imposing a more severe sentence has been shown in practice to operate as a deterrent, the retrial is a new trial during which a case can be presented differently, arguments can be pitched differently and witnesses can behave differently. Essentially, the retrial is a different trial; why then should the second trial Judge (whether or not it is the same Judge) be bound by the decision of the first, which was made on the way in which the first trial developed?
Surely the sentence imposed should reflect all the facts as they were established at the second trial. If, on a retrial, a defendant is convicted but on a more favourable basis than in the first (perhaps a prosecution witness evidence is weaker or the defendant performs better in the box), the Judge is not permitted, when sentencing, to say: Ah, but in the first trial
Why should it work in the reverse?
My conclusion is two-fold. First, the curious absence of a duty to impose the correct sentence needs correcting; such a provision is long overdue. Secondly, the restriction in sch.2 operates only as a hindrance; how can a defendant legitimately complain at receiving a lengthier sentence at retrial, if the Judge thought it appropriate? A defendant in such a position could challenge a manifestly excessive sentence in the usual way. Repealing this injudicious provision would promote fairness and consistency in sentencing.
Author details
Grays Inn, editor of Banks on Sentence and the UK Criminal Law Blog (ukcrime.wordpress.com).
So, if found guilty again, the maximum term can not be more than he was given last time ... shame.
