We looked at the case of Richard Ford who got a 45 year sentence in 2016, and again on 28 March 2018 when his appeal against sentence was (unsurprisingly) allowed.
We said that we would have another look at the case when the judgement was out, and so here we go …
Most cases that make the law reports don’t make the newspapers – they will deal with the legal principles rather than the stuff that sells newspapers.
But Mr Ford, although he is not a celebrity, will probably get into the Law Reports. The Court of Appeal heard several cases together to decide what sounds like a basic question – when the Court decides that a sentence is too high, what can it do?
This comes back to s11 Criminal Appeal Act 1968 which reads as follows :
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 the court below.
The underlined part is important. It means that when someone appeals there is no risk of their sentence going up. In many cases, s11 is pretty straightforward – if somebody gets a 3 year prison sentence then the Court can quash it and give him 2 years, but they can’t give him 4.
But due to the complexities of modern sentencing, it can get quite complicated. One particular question is how do you deal with extended sentences where there are different release provisions?
A good example of what can happen is the case of Myles Bradbury who had a successful appeal against sentence but, due to the release provisions, may regret having won his appeal …
This is what the Court of Appeal looked at in Mr Ford’s case. The conclusion was that (para 23)
“The court must be satisfied that, taking the case as a whole, the appellant is not being dealt with more severely on appeal. That requires a detailed consideration of the impact of the sentence to be substituted which must involve considerations of entitlement to automatic release, parole eligibility and licence. If a custodial sentence is reduced, the addition of non-custodial orders (such as disqualification from driving or sexual offences prevention orders) may be added but, in every case, … that sentence must be tested for its severity (or potential punitive effect) compared to the original sentence.“
Mr Ford’s case was dealt with at paras 68-81. The Court were clear that the 45 year sentence “must be one of the longest determinate sentences ever passed by an English court“. In those circumstances, it is unsurprising that they held that “Plainly such an overall sentence is entirely disproportionate to the offences which he has committed and cannot be upheld“.
As we said before, the sentence he has ended up with is still severe – 20 years (made up of a custodial term of 12 years with an 8 year extended licence), but is a more reasonable one.
Incidentally, in relation to Dr Bradbury, there was a good namecheck for one of the founders of this blog. We said at the time “It is a basic rule that the Court of Appeal cannot increase a sentence on appeal, and it would seem to be arguable that this is what they have done here“.
Looking at para 22 Thompson & Others [2018] EWCA Crim 639 (how Mr Ford’s case was reported) the Court said in relation to Dr Bradbury – “On any showing, it is difficult to see how it could be suggested that, taking the case as a whole, the offender in that case was not being dealt with more severely by the Court of Appeal. For the possible release on parole 6 months earlier than he would have been entitled to automatic release (at 11 years in a determinate sentence of 22 years), he is at potential risk of a further 5 years in custody (at the end of the custodial term of 16 years) without any change to the terminal date of the licence. In our judgment, that decision does not sit with s. 11(3) of the 1968 Act and should not be followed.”
The Court went on to state “in relation to this analysis, we acknowledge the assistance we have received from the commentary by Lyndon Harris in (2015) Crim LR 1005.“