should, namely, increase a sentence where it thinks a longer sentence should have been passed, no other course seems practicable. For if the Court frankly stated its opinion that the sentence was inadequate, and said that leave to appeal against it was given so that it could be increased if the Court remained of that opinion, the appeal would promptly be abandoned. But the procedure to which the Court is unavoidably driven is not an edifying spectacle. 199. As to the deterrent effect of the power, the Court has no authority to increase a sentence merely because it thinks the application for a reduction is frivolous. Nor is there any evidence that it has done so. But the increase of a sentence periodically does, we think, have the effect of reducing for a time the numbers of those who apply for leave to appeal against sentence. The increase may be publicised in the daily Press and the word gets round. Some of those thus deterred may be prisoners with a reasonable case for reduction of their sentences. Just how many unmeritorious applications are prevented it is quite impossible to say. If there were reliable evidence that it was substantial, the argument in favour of the retention of the power to increase sentences would certainly be stronger; and it would hardly matter that this effect of the power was not its real purpose. 200. The usefulness of the power in avoiding disparity of sentence is minimal. It is exercised in so few cases that its retention cannot be justified on this ground whether considered alone or in combination with the others. 201. One way of avoiding to some extent the deceptive procedure which at present must be adopted, if the power is to be at all effective, is to give the Court power to review the sentence in all cases of appeals (as distinct from applications for leave to appeal) against conviction; even though the appellant does not seek to question his sentence. We have already noted the existence of such a power in Scotland and Northern Ireland and in courts of quarter sessions in England, though it is a material difference that appeals to quarter sessions are a re-hearing of the whole case. Two judicial witnesses of much experience thought that, notwithstanding such difference, the Court of Criminal Appeal should have the like power. We are not able to share this view. Apart from its being a complete break with the system which has now been in force for over half a century, the number of cases in which the sentence would be increased would, judging from experience, not be worth the additional work involved. The Court would be looking at a considerable number of sentences only to refrain from interfering. In those cases where the sentence ought to be reduced it is a reasonable expectation that the prisoner himself would be found appealing not only against conviction but against sentence also. One undesirable feature of the innovation would also be that some meritorious appeals against conviction would not be prosecuted because of fear that, in the event of failure, the sentence might be increased. 202. Another proposal put to us was that all sentences of more than a specified length should be automatically reviewed by the Court. This seems to us to have nothing to do with the machinery of appeal. Automatic review of sentences raises wide questions of penal policy and the treatment of sentenced offenders which are outside our terms of reference. It is, in any case, a function which we should regard as inappropriate for a Court of Criminal Appeal. ENGLAND AND WALES: APPEAL AGAINST SENTENCE; FORMER POWER OF COURT TO INCREASE SENTENCE This The former law concerning an appeal by a defendant against sentence of the trial court was that the Court of Criminal Appeal could quash the sentence passed at the trial and pass such other sentence "whether more or less severe" as was warranted by the verdict. power was taken away in 1966, and under current law the court may vary the sentence but the appellant must not be more severely dealt with than he was by the trial court. 1/ It was thought that the former power of the court to increase a sentence acted as a deterrent against frivolous appeals, but the intention of the court to increase a sentence was mostly defeated through the exercise by the appellant of his right to abandon his appeal. When the court was thinking of increasing a sentence, it felt obliged to grant legal aid to the defendant. The attorney would then realize what was in the court's mind and would advise the defendant to abandon the appeal. Until 1946 it was also the practice of the court, when it felt that the sentence was inadequate, to warn the appellant that if he persisted in his appeal he was likely to be awarded a higher sentence. However, the power of the court to increase a sentence did undoubtedly act as a deterrent to some meritorious appeals in which an attorney might feel that the sentence was high, yet not high enough that 1/ The Criminal Appeal Act, 1968, c. 19. the court would be bound to interfere. In such cases, counsel would not risk an appeal in case the court disagreed and in fact increased the sentence. The power was also of some use in a few cases in avoiding disparity of sentences between co-defendants. Thus, in R. v. Ryall; R. v. Gardiner, [1962] Crim. L.R. 853 (1962), two defendants were sentenced to 5 and 10 years' imprisonment, respectively, for two remarkably similar offenses. Their appeals were heard on the same day, and the court increased one sentence to 7 years and decreased the other to 7 years. In 1964, a committee was appointed to, inter alia, recommend changes in the criminal appeal procedure. With regard to the power of the court to increase sentences on appeal, the committee noted that in giving the power, the legislature intended to stem the flood of appeals. 2/ In its report, the committee stated that although the power could be Justified on the ground that, in the interests of society, the court should be free to substitute whatever sentence justice required, it had been argued before it that the court's power unduly inhibited the timid appellant from lodging a justifiable appeal. The committee's analysis of the merits and demerits of the power is highly relevant to the question at hand, and a copy of the relevant portion of its report is attached. 2/ Interdepartmental Committee on the Court of Criminal Appeal, Report, Cmnd. 2755 (1965). |