What Are the Common Grounds for Appealing a Sentence?

When a court in England and Wales passes a criminal sentence, the defendant may feel that the punishment imposed is inappropriate. In these circumstances, it is possible to appeal against the sentence to a higher court, usually the Court of Appeal (Criminal Division). However, appeals against sentence are not automatic. The appellant must identify valid grounds for appeal - specific legal or factual reasons that justify the court re‑examining the sentence. The appeal system ensures that sentences remain within the lawful and reasonable bounds set by Parliament, sentencing guidelines, and established case law.

This article explains the most common grounds on which a sentence can be appealed, the legal context, procedural requirements, time limits, and practical considerations for anyone seeking to understand how sentence appeals work.

1. Legal Basis for Appeals Against Sentence

In England and Wales, the right to appeal a sentence is governed primarily by the Criminal Appeal Act 1968. This Act gives the Court of Appeal the power to hear appeals against sentences imposed by the Crown Court on indictment. To appeal, the appellant must generally apply for permission (leave) to appeal. The court will only grant leave if the grounds raised are arguable and capable of success.

Time limits are strict: the notice of appeal must normally be lodged within 28 days of the sentence being passed. If this deadline is missed, the appellant must seek an extension of time, which is only granted in limited circumstances.

2. What Is a Sentence Appeal?

An appeal against sentence is a request for a higher court to reconsider and potentially change the punishment originally imposed. The appeal does not re‑try the case on all issues; rather, it focuses on whether the sentence imposed was legally justified and appropriate in the circumstances.

The Court of Appeal will only interfere with a sentence where it is satisfied that it was wrong in law, wrong in principle, or manifestly excessive. A sentence that is merely slightly harsher than another judge might have imposed is not, of itself, a sufficient ground for appeal.

3. Manifestly Excessive Sentence

Definition and Application

One of the most common grounds for appealing a sentence is that it is manifestly excessive. This does not mean simply that the appellant disagrees with the length or severity of the sentence. Instead, it requires showing that the sentence passed falls outside the proper range of sentences once all relevant factors - seriousness of the offence, aggravating and mitigating factors, and sentencing guidelines - are properly taken into account.

Typical Manifest Excessive Arguments

Appellants often argue that:

• The judge selected an inappropriate starting point for sentencing.
• Too much weight was given to aggravating factors.
• Too little weight was given to mitigating factors, such as early guilty pleas or personal circumstances.
• The judge misapplied sentencing guidelines, including categorising the offence or its seriousness incorrectly.
• The judge gave an insufficient reduction for a plea of guilty.

A successful argument on manifest excess may result in the sentence being reduced or varied.

4. Sentence Wrong in Law or Wrong in Principle

Legal Errors in Sentencing

Another principal ground for appeal is that the sentence was wrong in law or wrong in principle. This means that the sentencing judge made a legal mistake, such as imposing a sentence that was not legally permissible, or failing to apply relevant legal requirements or statutory limits. Examples include imposing a sentence that exceeds the statutory maximum or failing to follow required procedure.

A sentence may also be wrong in principle where the judge applied the correct law but adopted an approach that the Court of Appeal considers inconsistent with established sentencing law or guidance.

5. Incorrect Factual Basis for Sentence

Newton Hearings and Factual Disputes

Appeals may also succeed where the factual basis on which the sentence was imposed was incorrect. In the Crown Court, disputed facts relevant to sentencing are often resolved at a Newton hearing. If the sentencing judge did not properly determine the facts, or failed to resolve conflicting accounts, the factual foundation for sentencing may be flawed.

For example, if the judge treated a matter as proven without appropriate fact‑finding, the Court of Appeal may conclude that the sentence was based on an incorrect or unsupported version of events and adjust it accordingly.

6. Procedural Errors and Irregularities

Procedural or administrative errors during sentencing may also justify an appeal. These could include:

• Failing to consider a pre‑sentence report where it was appropriate to do so.
• Incorrect details regarding the defendant's antecedent (criminal history) being taken into account.
• Mistakes in the calculation of custody thresholds or other sentencing factors.

If procedural irregularities affected the fairness or legality of the sentencing process, the Court of Appeal may intervene.

7. Improper Consideration of Irrelevant Factors

A sentencing judge must base the sentence on relevant legal criteria. If the judge took into account irrelevant considerations - such as the defendant's exercise of rights in the criminal process or characteristics that are not legally pertinent - the sentence may be open to challenge.

Examples include:

• Increasing a sentence because the defendant chose to plead not guilty.
• Relying on facts that should not have been considered because they were not proven or legally admissible.

The Court of Appeal can correct sentences where such misapplications have occurred.

8. New or Additional Evidence Relevant to Sentence

In some cases, fresh evidence may become available after sentencing that could materially affect the appropriate punishment. While rare in sentence appeals, the Court of Appeal has discretion to admit new evidence relating to issues that could justify resentencing, such as new expert reports or evidence of significant rehabilitation.

9. Attorney General's Unduly Lenient Sentence Scheme

Although not a defence appeal, it is important to understand another related mechanism: the unduly lenient sentence scheme. Under the Criminal Justice Act 1988, the Attorney General's Office can refer a sentence to the Court of Appeal where it appears to be unduly lenient for certain offences. This process is separate from a defendant's appeal and serves as a public safeguard against sentences that fall below the minimum expected range.

This scheme operates within strict time limits and covers specified indictable offences.

10. Practical Steps and Time Limits

To appeal a sentence:

• Complete and lodge a notice and grounds of appeal within 28 days of sentence in the Crown Court.
• Apply for permission to appeal unless the lower court certified the case as fit for appeal.
• Provide clear written grounds explaining why the sentence is manifestly excessive, wrong in law, or tainted by error.
• Attend the hearing before the Court of Appeal Criminal Division if leave is granted.

Failure to comply with procedural requirements or time limits can lead to the appeal being refused.

Summary

Appealing a sentence in England and Wales involves demonstrating that the punishment imposed by the trial court was manifestly excessive, wrong in law, or wrong in principle, or that it was based on incorrect facts or procedural irregularities. These grounds reflect the need to ensure that sentences are lawful, appropriate, and fairly imposed.

Sentence appeals are governed by strict procedural rules, including time limits and the requirement for permission to appeal. Understanding these common grounds helps clarify when and how a sentence may be successfully challenged in the appellate courts.