Layden v R. [2025] EWCA Crim 659 (23 May 2025)

Neutral Citation Number: [2025] EWCA Crim 659 Case No: 202501163B4 202300603B4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT NORWICH HHJ HOLT T20157182 Royal Courts of Justice Strand, London, WC2A 2LL 23 May 2025 B e f o r e : LORD JUSTICE JEREMY BAKER LORD JUSTICE HOLGATE and HIS HONOUR JUDGE TIMOTHY SPENCER (The Recorder of Leicester) ____________________ Between: Stuart Layden Appellant - and - REX Respondent ____________________ Mr Peter Wilcock KC and Miss Catherine Oborne (instructed by Jordans LLP) for the Appellant Mr Paul Jarvis KC (instructed by Crown Prosecution Service) for the Respondent Hearing date: 16 April 2025 ____________________ HTML VERSION OF APPROVED JUDGMENT ____________________ Crown Copyright © This judgment was handed down remotely at 12.00 on Friday 23 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives. Lord Justice Jeremy Baker: On 17 May 2016, in the Crown Court at Norwich, Stuart Layden ("the applicant") was convicted, following a second retrial, of the murder of Ian Church in Great Yarmouth in the early hours of 4 May 2012. He was sentenced by the trial judge to life imprisonment with a minimum term, specified under section 269(2) of the Criminal Justice Act 2003, of 8 years and 359 days. On 25 October 2023 this court ( Stuart Layden v R [2023] EWCA Crim 1207 ) quashed the conviction on the basis that, following Llewellyn [2022] EWCA Crim 154 , the Crown Court did not have jurisdiction to re-try the applicant pursuant to section 7 of the Criminal Appeal Act 1968, because the Crown Court's jurisdiction is contingent on fulfilment of the requirements of section 8, which were not fulfilled in this case, as the applicant, without the leave of this court, was not arraigned within two months of the order for retrial. On 25 October 2023, this court certified a point of law of public importance, namely, "Does a failure to comply with the procedural requirements in section 8(1) of the Criminal Appeal Act 1968 deprive the Crown Court of jurisdiction to re-try a defendant notwithstanding an order of the Court of Appeal under section 7(1) of the 1968 Act?" On 8 March 2024, the Supreme Court granted the respondent permission to appeal, and in a judgment handed down on 2 April 2025, ( R v Layden [2025] UKSC 12 ) the Supreme Court answered the certified question in the negative, allowed the appeal, overruled Llewellyn and restored the applicant's conviction of murder. It remitted the issue of the applicant's continuation of bail, surrender to custody and any ancillary matters to this court. On 7 April 2025, a notice was provided to the applicant by which he was ordered to surrender himself to this court at 10am on 16 April 2025. The applicant complied with the order and he is now in custody serving his sentence of life imprisonment. In the meantime, on 25 October 2023, this court had granted the applicant bail, pursuant to section 37 of the Criminal Appeal Act 1968, subject to certain conditions, including that he was to reside at an address in Essex and to comply with an electronically monitored curfew between 11pm – 8am each day. Therefore, whilst as at 25 October 2023, the applicant had served 7 years and 161 days of his minimum term, meaning that on his return to custody there will be 1 year and 198 days of his minimum term left to serve before the applicant is eligible to be released on life licence, between 26 October 2023 – 16 April 2025 the applicant spent 537 days on bail, subject to the electronically monitored curfew conditions. The applicant has applied for an extension of time in which to apply to this court for leave to appeal against sentence, on the basis that it is submitted that half of the days during which the applicant was on bail and subject to these conditions should be deducted from the minimum term. The application has been referred by the Registrar to the Full Court. Submissions On behalf of the applicant, it is pointed out that where an accused is made the subject of a mandatory sentence of life imprisonment, the effect of section 322 of the Sentencing Act 2020 (SA 2020) is that the sentencing court is required to take into account the number of days which the accused has been subject to a qualifying curfew condition and an electronic monitoring condition, in accordance with section 240A of the Criminal Justice Act 2003 and section 325 of the SA 2020. It is pointed out that the bail conditions which this court imposed on the applicant amounted to a qualifying curfew condition and an electronic monitoring condition under section 326 of the SA 2020, such that had the applicant been subject to these conditions before he was sentenced to life imprisonment, the sentencing judge would have been obliged to deduct half the number of days which the applicant had been on bail subject to these conditions from the minimum term, namely a period of 268.5 days, which would have resulted in a minimum term of 8 years and 90 days. It is submitted that the circumstances of this case are exceptional and that the interests of justice enable this court to intervene by allowing the appeal against sentence, quashing the minimum term imposed by the judge and substituting a minimum term of 8 years and 90 days. It is pointed out that the appeal against conviction only came before this court because, having previously declined to refer the applicant's submission in 2018, the Criminal Cases Review Commission ("CCRC") wrote to the applicant and invited him to apply to the CCRC on the basis that Llewelyn could impact the safety of his conviction. Moreover, the fact that the applicant has been subject to these bail conditions for a period of about 18 months, has only arisen due to this court having imposed them after his conviction had been quashed, pending the respondent's application for leave to appeal to the Supreme Court. It is submitted that in these circumstances, it would be unfair not to reduce the minimum term to reflect the period during which the applicant was on bail subject to these conditions pending the appeal, as they represented a significant constraint on his liberty and proved particularly difficult due to technical problems which he experienced with the monitoring system. It is pointed out that had the applicant remained in custody serving his life sentence, he would have served almost the whole of his minimum term and be eligible for release by the Parole Board. Moreover, it may be that his categorisation within prison will be subject to reconsideration. The respondent takes no point on the issue of delay, in that the application for leave to appeal against sentence has only arisen as a result of the recent restoration of the applicant's conviction for murder by the Supreme Court. Moreover, it is conceded that where Parliament has not made specific provision for crediting time spent on bail subject to restrictive conditions, not only may a sentencing court credit time spent on bail subject to restrictive conditions, but this court may remedy any failure to make such a reduction, where it is in the interests of justice to do so. However, it is pointed out that the applicant is not seeking to remedy a situation which arose before the date of the sentencing hearing, but upon events which did not occur until after the sentence of life imprisonment was imposed upon him. It is submitted that although this court's powers on appeal against sentence are expressed in wide terms under section 11(3) of the Criminal Appeal Act 1968, so enabling this court to allow an appeal where subsequent events have shown that assumptions made by a judge have proved to be wrong, this court has, absent specific statutory authority, repeatedly declined to allow appeals on the basis of events which have only occurred since the time of the sentencing hearing. It is submitted that the applicant's circumstances are not so exceptional that the interests of justice require this court to take a different approach in this case. In that regard, it is pointed out that, albeit subject to bail conditions, the applicant has been at liberty for the last 18 months. The fact that he has been in this position has enabled him to be better placed than other prisoners subject to life imprisonment, when it comes to persuading the Parole Board to direct his release on the basis that he is no longer a danger to the public. Moreover, section 30 of the Crime (Sentences) Act 1997 enables the Home Secretary to release a life prisoner on licence if she is satisfied that exceptional circumstances exist which justifies the prisoner's release on compassionate grounds. In any event, it is pointed out that section 43(1) of the Criminal Appeal Act 1968, expressly provides that where the Court of Appeal grant an accused bail pending an appeal to the Supreme Court, any time spent by him on bail, "…. shall be disregarded in computing his sentence ." It is submitted that the purpose of this provision is to ensure that the prison authorities do not include the period spent on bail in their calculation of the length of an accused's sentence in the event that bail is later revoked and the accused is returned to custody to continue serving his sentence, and that had Parliament intended the time spent on an otherwise qualifying curfew should count towards an accused's sentence, it could have amended section 43(1), but has not done so. Discussion It is common ground between the parties in this case that had the applicant been on bail, subject to the conditions to reside at an address in Essex and to comply with an electronically monitored curfew between 11pm – 8am each day, and was being sentenced to life imprisonment for murder, the Crown Court, when determining the minimum term, would be obliged to take this into account, by deducting half of the period which the applicant had spent on bail subject to these curfew conditions; the bail condition being a qualifying curfew condition under section 326(3) of the SA 2020, and the credit period under section 325(3) of the SA 2020 being half the period of time spent on bail subject to the qualifying curfew condition. The provision which obliges a court to do so, is to be found in section 322 of the Sentencing Act 2020 which provide as follows, "Mandatory life sentences: further provision (1) This section applies where a court passes a life sentence for an offence the sentence for which is fixed by law. Minimum term (2) If the court makes a minimum term order, the minimum term must be such part of the offender's sentence as the court considers appropriate taking into account— (a)the seriousness of— (i)the offence, or (ii)the combination of the offence and any one or more offences associated with it, and (b)the effect that the following would have if the court had sentenced the offender to a term of imprisonment— (i)section 240ZA of the Criminal Justice Act 2003 (crediting periods of remand in custody); (ii)and section 240A of that Act (crediting periods on bail subject to certain restrictions); including the effect of any declaration that the court would have made under section 325 or 327 (specifying periods of remand on bail subject to certain restrictions or in custody pending extradition). …." Moreover, as this court explained in Sessay [2024] EWCA Crim 483 , at [5] – [6], "5. The consequence of those provisions is that, whenever a life sentence is imposed, the minimum term is part of the sentence. Moreover, the minimum term must be set taking into account: i)the number of days remanded in custody in respect of the offence for which the life sentence is imposed or a related offence; ii)the credit period for any period on bail subject to a qualifying curfew with an electronic monitoring requirement; iii)any period spent in custody awaiting extradition for the offence in respect of which the life sentence is imposed. 6. The minimum term for a life sentence imposed for an offence of murder first will be fixed by reference to the appropriate starting point in Schedule 21 of the Sentencing Code and taking into account relevant aggravating and mitigating factors. Once that period has been determined, the period or periods set out in section 322(2)(b) of the Sentencing Code must be deducted. The figure which is the result of that overall calculation will be the minimum term. Where the life sentence is not a sentence fixed by law, the minimum term is the relevant portion of the notional determinate sentence. That portion will vary depending upon the release provisions applicable to the offence. Once that period has been fixed, the same exercise in relation to periods on remand must be conducted as for a life sentence which is fixed by law. Again, the result of the calculation will be the minimum term." Indeed, where a judge imposes a sentence of life imprisonment but omits to make the requisite deduction from the minimum term to reflect a period spent subject to a qualifying curfew condition, then this will found a ground of appeal against sentence which this court can remedy (see: Sessay ). Furthermore, where Parliament has not made specific provision for crediting time spent on bail subject to restrictive conditions, not only may a sentencing court credit time spent on bail subject to restrictive conditions prior to sentence, but this court may remedy any failure to make such a reduction, where it is in the interests of justice to do so (see: R v Prenga [2017] EWCA Crim 2149 and R v Rice [2025] EWCA Crim 352 ). However, the questions which arise for consideration in this case are firstly whether this court is precluded by section 43(1) of the Criminal Appeal Act 1968 from taking the period which the applicant spent on bail under section 37 of the Criminal Appeal Act 1968 subject to these conditions into account. Secondly whether this court on appeal has jurisdiction to take into account the fact that since the imposition of the sentence of life imprisonment the applicant has spent a period of about 18 months on bail subject to the electronically monitored curfew, and thirdly, if so whether the appeal should be allowed. In relation to the first of these issues, we agree with the respondent that the purpose of this provision is to ensure that, where someone has been released on bail under section 36 or 37 of the Criminal Appeal Act 1968, the prison authorities do not include the period spent on bail in their calculation of the length of an accused's sentence in the event that bail is later revoked and the offender is returned to custody to continue serving his sentence. However, in our judgment, this being the purpose of the provision, we do not consider that it has the effect of otherwise constraining the powers of this court on appeal, nor do we consider that the omission of any reference to the crediting of time spent on bail subject to a qualifying curfew condition, affects this position. In considering this court's jurisdiction when dealing with an appeal against sentence, it is of importance to bear in mind that unlike the previous provisions of the Criminal Appeal Act 1907, which provided for the quashing of a sentence where this court thought that a different sentence should " have been passed ", section 11(3) of the Criminal Appeal Act 1968 provides that, "(3) On an appeal against sentence the Court of Appeal, if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below may (a)Quash any sentence or order which is the subject of the appeal; and (b)in place of it pass such sentence or make such order as they think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence; but the Court shall so exercise their powers under this subsection that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by this court below." The difference in these statutory provisions was recognised by this court in Bennett [1968] 52 Cr App R 514 as providing for more flexibility, and in particular it permits this court to consider evidence which was not available at the time of the original sentencing hearing; albeit in that case the medical evidence related to the mental health of the accused at the time of the original sentencing hearing. Since then, although this court has admitted fresh evidence under section 23 of the Criminal Appeal Act 1968, and/or received information as to events which have happened since the original sentence was imposed, (see: Roberts [2006] EWCA Crim 2915 ), as the function of this court is to review sentences imposed by the Crown Court, the circumstances in which the court will do so are heavily circumscribed. This was recognised in R v Shaw [2010] EWCA Crim 982 (" Shaw "), in which this court declined to interfere with a sentence which was otherwise unimpeachable on the basis that since the date of the sentence the applicant had suffered a life-threatening illness. It was pointed out that, "11. The function of this court in relation to sentences passed in the Crown Court is, by contrast, to review the sentencing process which took place there. The general rule is that this court will only interfere with a sentence if persuaded that at the time it was passed it was unlawful or wrong in principle or manifestly excessive. None of those things can be said of the sentences passed in this case. 12. It is true that on occasions this court will have regard to matters arising since the sentence was passed, for example an appellant's good progress in prison. Generally speaking it is likely to do so only where it has already concluded that the sentence passed in the Crown Court was either manifestly excessive or unduly lenient and where it is considering what sentence to impose in its place. We consider that in a situation such as has arisen in this case it will normally be appropriate for this court to leave it to the Secretary of State to decide whether to exercise his powers under section 248….." An example of where this court had regard to matters which had arisen since the sentence was passed, namely the exceptional progress exhibited by a 16-year old appellant whilst in custody, was in R v R [2009] EWCA Crim 1932. However, in line with the observation in Shaw , this was in the context of the court's consideration as to whether the sentencing judge had sufficiently taken into account the appellant's age and maturity at the time of the offending when he was 15 years of age. The approach in Shaw was followed by this court in R v Watson [2021] EWCA Crim 1248 , where the court declined to grant leave to appeal against an otherwise unimpeachable sentence on the basis that shortly after the date of the sentence the applicant had suffered two major strokes resulting in serious cognitive and physical impairment. In giving the judgment of the court, Carr LJ (as she then was) reviewed the authorities concerning the court's approach to material which was not before the lower court and its effect upon the sentence under appeal, "13. By section 11 of the Criminal Appeal Act 1968, we have power to quash any sentence and in its place pass such sentence or order as we think appropriate and as the court below had power to make. This power is fettered only by the proviso that, taking the case as a whole, the applicant must not be more severely dealt with (see section 11(3)). The test that the sentence must be "manifestly excessive or wrong in principle" does not appear in the legislation but for many years has been the principle upon which this Court acts. 14. However, and fundamentally for present purposes, this Court is a court of review - see R v Roberts & Ors [2016] EWCA Crim 71 ; [2016] 1 WLR 3249 ; [2016] Cr App R(S) 14 and R v ZTR [2015] EWCA Crim 1427 . In Roberts, Lord Thomas CJ stated: "19. It is well established that this court is a court of review. In R v A&B [1999] 1 Cr App R (S) 52 Lord Bingham CJ made this clear at page 56: 'the Court of Appeal Criminal Division is a court of review; its function is to review sentences imposed by courts at first instance, not to conduct a sentencing exercise of its own from the beginning.' 20. There is no basis for departing from the principle so clearly expressed by Lord Bingham..." 15. Thus the court considers the material before the sentencing court and any fresh material properly admitted under section 23 of the Criminal Appeal Act 1968, by reference to the well-established principles thereunder. It considers whether the sentence was wrong in principle or manifestly excessive. It does not, in the light of something that has happened since sentence, consider whether an offender should be sentenced in an entirely new way because, for example, of what has happened in the penal system or because the offender has supplied fresh information long after the event. 16. That is not to say that this court will not entertain updated information about an offender, such as updated pre-sentence and prison reports on conduct in prison. It does this under the limited exception identified by Lord Thomas CJ in R v Rogers [2016] EWCA Crim 801 ; [2016] 2 Cr App R(S) 36 , a judgment delivered some 3 months after the judgment in Roberts. At [8] in Rogers, Lord Thomas referred in particular to the decision of Lord Judge CJ in R v Caines; R v Roberts [2006] EWCA Crim 2915 ; [2007] 1 WLR 1109 , at [44]: in short, post-sentence information, such as a positive response by a young offender to his custodial sentence may impact on and produce a reduction in sentence. 17. Here we have a situation where information about the offender is not being updated in the sense envisaged in Rogers, namely by way of building on or undermining what was seen below as matters material to the seriousness of the offending or by way of aggravating or mitigating factors. Rather what the applicant seeks is a wholesale revision of the sentencing exercise by reference to entirely separate events which occurred only after sentence and of which the Judge was wholly unaware. No application under section 23 of the Criminal Appeal Act 1968 has been made, nor would one have succeeded. Amongst other things the new material could not afford a ground for allowing the appeal. 18. We recognise that, unlike the position in Roberts and ZTR, the events relied upon here took place very shortly after sentence. However, that makes no difference to the correct approach as a matter of principle. It is not for us to re-open and effectively restart the sentencing process on a completely fresh basis. 19. This is a result consistent with the case law that has considered the question of the impact of serious medical conditions on the sentencing process. It is well established that an offender's serious medical condition may enable a court, as an act of mercy, in the exceptional circumstances of a particular case, rather than by virtue of any general principle, to impose a lesser sentence than would otherwise be appropriate (see R v Stevenson; R v Minhas [2018] EWCA Crim 318 ; [2018] 2 Cr App R(S) 6 at [10], referring to R v Bernard [1997] 1 Cr App R(S) 135. However, as can be seen from the discussion in Stevenson at [10] to [20], appellate interference on the basis of a significant deterioration in a medical condition may be appropriate if the condition was known at the date of sentencing. Although the general principle is that this Court will only interfere with a sentence if persuaded that it was wrong in principle or manifestly excessive in length at the time when it was passed, the case law shows that a more flexible approach may properly be taken in cases of significant deterioration in a known medical condition. Whilst the appellate court may have regard to such deterioration, the cases in which it would be appropriate to do so are nevertheless rare. In the case of serious and worsening ill health, the combination of what have been described as the "Bernard principles" and the criteria for fresh evidence in section 23(2)(b) of the Criminal Appeal Act 1968 "is one which will present a substantial obstacle to success in all but the most compelling cases" (see Stevenson at [20]). 20. The short point here is that the applicant's medical condition in this case was not known at the date of sentencing. In Stevenson (at [17]), and again in the later case of R v McMeekin [2018] EWCA Crim 2373 (at [27]), the court was at pains to emphasise the importance of this distinction." This approach to evidence concerning serious medical conditions suffered by an appellant is reflected in the court's approach to evidence of assistance provided by appellants to law enforcement authorities, outside the statutory scheme which is now provided by sections 74 – 75 and sections 387 – 391 of the SA 2020. So in R v BHR [2023] EWCA Crim 1622 (" BHR "), this court refused leave to appeal against sentence in circumstances where an applicant had only given assistance to the law enforcement authorities after sentence and where he had not offered to do so before sentence. The Vice-President of the Court of Appeal, Criminal Division, reviewed the authorities concerning the court's approach to this situation and provided the following analysis, "22. First, we regard the case law as establishing a firm general rule that a reduction of sentence pursuant to the text procedure is only available to an offender who provides, or at least offers to provide, assistance before he has been sentenced. As a matter of principle, we can see no distinction in this regard between an offender who has pleaded guilty and one who has been convicted after a trial; and no counsel submitted that any such distinction should be drawn. 23. Secondly, the rationale for that rule lies in the nature of this court's jurisdiction: namely, that on an appeal against sentence it reviews the sentence imposed below on the basis of the information and material which was before the sentencing judge. 24. Thirdly, this court may take into account assistance provided after sentence where it significantly exceeds, in quality and/or in quantity, that which the sentencer took into account in passing sentence (see principle 5 in A and B ); or where before his sentencing the offender had provided or offered assistance to the police which justified the provision of a text, but for some reason that fact had not been made known to the sentencer (see H, D and Choudhury at [6]). In our view, the decisions to that effect are not in truth exceptions to the rule but rather applications of it. They confirm that the text procedure may be used where the later events were an addition to or development of circumstances which were, or should have been, made known to the sentencing judge. 25. Fourthly, neither those decisions nor any other case which has been referred to us supports any wider departure from or exception to the rule. It is often said that this court should "never say never", and we recognise that cases may arise – albeit very rarely – which are wholly exceptional when compared with all other cases involving the provision of assistance by informers. References in the case law to "the general rule" do no more than recognise that wholly exceptional cases may arise which on rare occasions may justify a departure from the general rule. Such references also recognise that the reviewing function of this court may sometimes extend to the consideration of post-sentence developments, for example where reports available to this court show that a young appellant has made good progress whilst in custody. 26. We have considered a number of submissions to the effect that support for a wider exception can be found in isolated passages from the judgments we have cited. We are unable to accept those submissions. (i) The confirmation in P and Blackburn at [34] that the text procedure may still be used "where appropriate", and the references later in that paragraph to "pragmatism", cannot in our view be regarded as widening the existing rule. (ii) The judgment in H, D and Choudhury at [28] makes clear that before being sentenced the appellant H had offered to assist but, for reasons outside his control, no text was prepared as it should have been and the judge was therefore unaware of an important piece of mitigation which he should have been able to take into account. (iii) For the reasons explained by the Lord Chief Justice in ZTR at [11], the decision in A was not in fact an exception to the general rule. (iv) Under section 11(3) of the 1968 Act , this court is empowered to act if it thinks that the appellant should be sentenced differently for an offence. We are unable to accept the submission that that power can be invoked in circumstances where no complaint is made about the sentence imposed by the court below (which may, indeed, have been a mandatory minimum sentence), and an appellant is seeking to rely on post-sentence events of which the sentencing judge knew nothing. 27. We have also considered other submissions suggesting a basis for a wider exception to the general rule. Again, we are unable to accept them. They face the obvious difficulty that ZTR provides recent authority, in a judgment given by the Lord Chief Justice, that there is no good reason to depart from the established principles. They face the further obvious difficulty that the first countervailing consideration identified by the Lord Chief Justice necessarily applies to any case in which an offender seeks to invoke the text procedure only after he has been sentenced. (i) As we have noted, the statutory procedure under section 388 will in most cases be available to an offender who decides, after he has been sentenced, to provide assistance. Parliament has set the limits to that procedure. Parliament's creation of the section 388 procedure, which involves a review in the Crown Court and the potential for an appeal in which this court would act as a court of review, cannot be regarded as justifying an expansion of the text procedure in a way which would require this court to exercise a different function, and which (in contrast to the statutory procedure) could only be available if the offender had not previously appealed against his sentence on other grounds. (ii) Similarly, rule 28.11 of the Criminal Procedure Rules, which applies where the Crown Court can review a sentence, does not support an expansion of the text scheme. As with rule 28.1, which was considered in Royle at [41], this rule plainly applies only to the statutory procedure. There are no other circumstances in which the Crown Court can review a sentence on the basis of assistance provided post-sentence. (iii) Submissions seeking to rely on the post-sentence provision of assistance as a form of "exceptional progress in custody" are, with respect, simply misconceived. Under transitional provisions relating to the introduction of the Criminal Justice Act 2003 , exceptional progress could be relevant to the determination of the minimum term to be served by an offender convicted of murder and sentenced to life imprisonment; but those very specific provisions do not warrant any wider, general ground of appeal based on exceptional progress. 28. We of course recognise the desirability of encouraging offenders to provide assistance and the pragmatic arguments in favour of enabling them to do so via the text procedure. We accept that there will be cases where, for example, the assistance relates to matters which themselves only arise after the informer has been sentenced, where valuable assistance could be provided by a serving prisoner, and where the risk of a self-serving creation of information can safely be excluded. We also recognise that the decision whether to enter into the statutory procedure may be a very difficult one (though it is far from the only difficult decision which must be made by a prospective informer), and that there may be good reasons why a particular informer does not wish to engage in that procedure, or is not permitted to do so. But these and other pragmatic considerations, however cogent, cannot enlarge the jurisdiction of this court. With all respect to counsel, their submissions were unable to overcome the obstacle presented by the fact that this court operates as a court of review. 29. For those reasons, we conclude that the general rule is as so recently summarised in Royle : an offender who wishes to rely on the text procedure must provide, or at least offer, assistance before he is sentenced. If he fails to do so, he cannot rely on a text as a basis for asking this court to alter a sentence which is unimpeachable on the basis of what was known to the sentencing judge. 30. It follows that an offender who offers or provides assistance for the first time after he has been sentenced, or who is invited to do so, must not be told, or given to understand, that he will be able to engage in the text procedure and to rely on that assistance as the ground for an appeal to this court relying on the text procedure. In such circumstances, the offender may be able to engage in the statutory procedure under section 388 of the Sentencing Code. As to whether any alternative route may be available to him, we have received no submissions about the availability or scope of any application which might be made by the offender to the Secretary of State for the Home Department. It is not for this court to comment on whether the strong public interest reasons urged upon us by counsel militate in favour of such a route being available. Nor is it for this court to comment on the decision of Parliament to exclude from the statutory scheme those who have pleaded not guilty to a charge of murder but have been convicted of that crime. 31. That being our conclusion on the point of principle, the grounds of appeal against the individual sentences fall away. Nothing which we have heard in either the open or the closed submissions is capable of bringing either applicant within the wholly exceptional type of case which might very rarely justify a departure from the general rule. We need say no more, and separate closed judgments would be superfluous." Although in two cases ( R v Charlton [2021] EWCA Crim 2006 and R v Bassaragh [2024] EWCA Crim 20 ) this court reduced the sentence imposed upon an appellant as a result of post-sentence information to the effect that she was pregnant, it is apparent that, not only was there other mitigation which affected the position, but most significantly, unknown to the appellant, she had been pregnant at the time of the sentence. Therefore, this was not a situation where the court was prepared to rely upon a matter which had only arisen post-sentence, rather it was a situation where the court was prepared to rely on a matter which existed at the time, and which would have affected a reduction in the sentence which the judge had imposed in ignorance of the situation. As Fulford LJ, observed, "14. The recorder was therefore faced with a difficult sentencing decision. He was, in our view, entitled to reach the conclusion he did on the basis of the information which was known to him. There was however a very important additional existing fact which was not known at that time but which has subsequently been established. Had the recorder been aware of that fact, we have no doubt he would rightly have taken it into account and given considerable weight to it, for three reasons. First, because imprisonment would now be a far heavier punishment for this applicant than for most other prisoners; secondly, because the pregnancy and births can be expected to increase her motivation to remain drug free; and thirdly, because it is necessary to have regard to the rights of the children who, as things stand, will be born in prison. 15 We are satisfied that when the pregnancy is added to the other personal mitigation in the applicant's case, there are particular circumstances relating to the offender which would make it unjust to impose the minimum prison sentence which would otherwise be required. We are satisfied that in all the circumstances the applicant should be sentenced differently,….." A similar approach appears to have been taken in the case of R v Channer [2021] EWCA Crim 696, in which this court reduced the sentence imposed upon an appellant due to the fact that his partner considered it would be highly desirable for the sake of their son for the appellant to be at liberty. Although, this was not a matter which was known until after the sentence had been imposed, and was therefore not taken into account by the sentencing judge, it would appear from what Edis LJ said at [42] that the alteration in her view towards the appellant was formed at least in part due to her experience of the appellant's behaviour following the imposition of the suspended sentence, and prior to the sentencing hearing have taken place. "43. It seems to us that on the basis of all the information we have, which as we have said, was more than was available to the judge, perhaps unfortunately, the justice of the case is such that ordering the appellant to serve that sentence in whole or in part has changed. In our judgment, given the particular circumstances of the way things have developed, it would be sufficient in the interests of justice if that term was ordered to run concurrently with the eight-month sentence which we have already upheld. In reaching that conclusion, we are not influenced by the consideration which often arises in domestic abuse cases where, for example, the victim has withdrawn the allegation or served a witness statement saying at that she, as it often is, wants the offender back again. This is not such a case at all. Such factors in other cases carry very little weight, for reasons which are obvious. This is a case where since the suspended sentence was imposed matters have moved on. The family has reconstructed itself, and most importantly, its purpose has been achieved: its principal purpose was the protection of the victim. Matters appear to be such that that was achieved, and therefore, for those reasons we allow the appeal in relation to the activation of the August 2018 suspended sentence by quashing the order that it should run consecutively and imposing instead an order that it should run concurrently with the other sentence." We accept that given the wide terms in which this court's powers on appeal against sentence are expressed in section 11(3) of the Criminal Appeal Act 1968, this court has jurisdiction to consider this application. However, as can be seen from our review of the authorities, the consistent approach of this court has been that as a matter of general principle, as the function of this court is to review sentences imposed by the Crown Court, the circumstances in which the court will consider evidence which was not available to the sentencing judge are heavily circumscribed, and in particular that as a general rule, this court will not interfere with an otherwise unimpeachable sentence on the basis of events which have only occurred since the sentence was imposed. Having said that, as the Vice-President of the Court of Appeal, Criminal Division, pointed out in BHR , "References in the case law to "the general rule" do no more than recognise that wholly exceptional cases may arise which on rare occasions may justify a departure from the general rule." Therefore, we have considered whether the circumstances of this case are so exceptional that it is one of those rare cases in which the interests of justice require us to alter what was otherwise a lawful sentence where there was no error on the part of the sentencing judge. In this regard, we of course accept that had it not been for this court having quashed the applicant's conviction for murder, he would have continued to serve his sentence of life imprisonment and would soon have been eligible for release by the Parole Board. Moreover, that during the period on which he was on bail, he was subject to conditions which, if they had been imposed prior to his sentence, would have obliged the judge to have made a reduction in his minimum term. However, the fact of the matter is that, following his conviction for murder, the applicant has been at liberty for a period of about 18 months, albeit subject to an electronic curfew, when he would otherwise have remained in custody. Although we recognise that, since the restoration of his conviction for murder, this has put back the date of his eligibility for Parole, given the effect of a sentence of imprisonment for life, there could be no assumption that the applicant would have been released on the earlier date or at all. Indeed, it seems to us that there is force in the respondent's submission that the fact that the applicant has been at liberty in the meantime, is likely to be of considerable value to him in seeking to persuade the Parole Board that it is now safe for him to be released; a matter which he would not have been able to pray in aid, had it not been for the events which have occurred in this case. Moreover, we see no reason in principle why the Parole Board should not also take account of the fact that this has put back the date of the applicant's eligibility for parole. Although it is suggested that the applicant's categorisation within the prison regime will be subject to reconsideration, we have no evidence to this effect, and even if this were so, we consider it unlikely that his return to his pre-release categorisation would be significantly delayed. Conclusion Taking these various matters into account, whilst we accept that the circumstances in this case are unusual, we are not satisfied that they have resulted in such injustice, so as to warrant interference by this court in what was otherwise an unimpeachable sentence imposed upon the applicant in respect of his conviction for murder. In this regard, given the nature of this court's jurisdiction to review sentences on appeal, this court has repeatedly emphasised the importance of the general rule that the court will not take into account post-sentence events. Moreover, whilst we recognise that general rules may be subject to exceptions where the interests of justice are sufficiently strong, we are not persuaded that the interests of justice in the present case are sufficiently strong to require the minimum term to be varied. As we have already observed, the sentence imposed in this case was one of imprisonment for life, such that there could be no assumption that release on parole would be granted at any particular time or indeed at all. Moreover, not only was the applicant at liberty, albeit subject to restrictions, when he would otherwise have been in custody, but we consider that the concerns which have been raised on behalf of the applicant before us, are ones which the applicant will be able to pray in aid when making submissions to the Parole Board when they come to consider whether to release the applicant on licence. Accordingly, whilst we will allow the extension of time and grant permission, we dismiss the appeal against sentence. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII