Slip Rule or Slip Up?

Leitch Et Al [2024] EWCA Crim 563

In this article, Alexandra-Maria Eugenicos discusses the appeal outlined above and the concept and mechanics of the ‘Slip Rule’.

Introduction

This appeal involves 6 unconnected cases concerned with administrative amendment of sentence. Correcting sentencing errors are commonplace and those in practice are familiar with the mechanics of the slip rule. However, the issue arises where the administrative alteration is significant, an example being where the sentence announced in court is wrong in law, which cannot so easily be remedied administratively.

Amending a Sentence in Law

At paragraph 6 of the judgment in Leicth, Lord Justice Davis states:

‘The fundamental principle is that the sentence imposed on a defendant in the Crown Court is the sentence pronounced in open court by the judge.’

The Court of Appeal further considered the history of the law enabling amendments to sentence being made. The following is set out by Lord Justice Davis at paragraph 8:

‘Before the advent of the Crown Court in 1972 there was no statutory power to amend or alter a sentence imposed in any higher criminal court. There was a common law power exercised either by the Judge of an Assize or by the Recorder of a Quarter Sessions. At the end of the Assize or the Quarter Session the relevant judge would sign the calendar authenticating the sentences which had been passed. On occasion the judge would decide to alter the sentence impose in court. The practice was that any alteration would not be one which operated to the disadvantage of the defendant.’

A new statutory power was introduced by s. 11(2) Courts Act 1971 allowing a sentence or other order made by the Crown Court to be varied or rescinded within 28 days of imposition. No stipulation was made as to how a sentence should be altered but the Court of Appeal made clear that any alteration must be announced in open court, and the defendant must be present unless there was a good reason for absence, or they were represented by counsel. Lord Justice Davis considers instances where this above guidance was ignored.

The statutory power of amending sentence is now contained in s. 385 Sentencing Act 2020 which sets out the current time limit as 56 days. There are procedural guidelines contained in Part 28.4 CrimPR. It may be exercised by the Crown or defence in writing and by the court of its own motion. The hearing may be held in public, private or without a hearing. The judge may not exercise this power in the defendant’s absence unless it is a defence variation application, the defence have had opportunity to make representations at a hearing, or the variation will not mean a harsher sentence. However, Lord Justice Davis made clear that ‘whatever the decision is and however it is made, it must be announced at a hearing in public along with the reasons for the decision.’ (para 11). If variation is sought after 56 days, it can only be varied by the Court of Appeal under s. 385.

Appellants’ Cases

The details of the cases considered in the joined appeals are instructive and worthy of consideration.

Daniel Leitch

Mr Leitch was sentenced for offences on an indictment in which no evidence had been offered, was not sentenced for an offence to which he had pleaded guilty, or an offence committed for sentence. The court record did not reflect this because the court clerk had later been authorised to amend the court record. This was not announced in open court. Leave to appeal was granted in relation to offences he had been acquitted, with those sentences quashed. However, the other grounds failed.

DS

This defendant was sentenced to a total term of 14 years and 3 months for multiple counts of rape. A sentence for offenders of particular concern under s. 278 Sentencing Act 2020 was mandatory on all counts. It was mentioned during sentencing remarks but not pronounced. It was not sufficiently explained that he would be subject to extended licence of 1 year. Moreover, there was an intention to impose a Restraining Order, but no pronouncement was made at the hearing nor was there specification of duration. A day after the sentencing the judge was made aware following which the court clerk made entries on the DCS where the above was remedied and a restraining order made ‘until further order’.

The sentencing judge had explained in an email to the Court of Appeal that he had intended to write to counsel and told the court clerk he would do so, but he did not. Leave was granted for DS to pursue all grounds of appeal in relation to amendment. The Court of Appeal did not find his sentence manifestly excessive and did not accept that the Restraining Order was correctly imposed.

Paul Fleet

Mr Fleet was made subject to a Sexual Harm Prevention Order (‘SHPO’) for an indefinite period and the sentencing judge had imposed notification requirements for an indefinite period. The SHPO was later amended and specified for 5 years with notification requirements imposed for the same period. This order was amended under the slip rule with the duration and notification requirements set at 10 years. There was no hearing where this was announced by the judge. Appeal in relation to sentence was dismissed; however, the Court of Appeal recognised the deficiency of the 10-year amendment not being pronounced in court, determining that the SHPO was as pronounced in as initially amended (5 years duration).

PB

This defendant was sentenced to 20 years imprisonment. The judge did not impose mandatory sentences on multiple counts as required by s. 278 Sentencing Act 2020 (Offenders of particular concern). The prosecution alerted the judge 5 days later, the judge amended sentence with an extended licence of 2 years ‘administratively and under the slip rule.’ The prosecution said that a more severe sentence should not have been imposed which led to a slip rule hearing where the sentence was amended to 19 years custodial with extended licence of 1 year. A ground of appeal that sentence was manifestly excessive was rejected, but the appeal allowed in relation to the 20 year determinate sentence being quashed and substituted for a special custodial sentence for an offender of particular concern as 19 years with extended licence of 1 year.

Andrew Adams

Mr Adams pleaded guilty to handling stolen goods and driving offences (no insurance and no licence). He was sentenced to 2 years for handling stolen goods. The offences took place within the operation period of a SSO which was activated. Mr Adams was sentenced to 2 years and 6 months (previous offence of bladed article) to run consecutively, and further fined separately for each driving offence with a default sentence of 7 days to run concurrently, disqualification for 3 years and ordered to sit an extended re-test – in relation to the offence of driving with no licence.

There followed discussions between counsel and the Court Clerk, the substance of which was not caught on the recording.  The Court Clerk went to see the judge, on return they say that disqualification is attached to the no insurance and is 21 months with 15 months uplift to account for the custodial sentence, taking it to 3 years. Counsel then raised concerns about whether an extended retest can be ordered on an offence of no insurance. The Court Clerk went to see judge again and when she returned said that the judge approved the amendment – no extended retest. Counsel told clerk it was not necessary for judge to return to court.

The Court of Appeal did not accept that the custodial sentence was manifestly excessive in relation to the Handling Stolen Goods. However, the Court of Appeal did not find it appropriate to impose significant fines with default sentences with no means for this defendant to pay – no separate penalty should have been imposed on those counts.

In relation to disqualification, the Court of Appeal agreed that this was manifestly excessive. Importantly, the out of court discussions are invalid. The sentence was substituted to 6 months disqualification with no extended retest. Fines and periods of custody in default quashed with no separate penalty substituted on driving offences.

Renny Fletcher

There was an error in the judge’s arithmetic when calculating sentence. There was no further hearing where this was announced, and the parties were not given notice when this was changed by way of a note on the DCS. However, to correct the error would be to impose a penalty more onerous and so the appeal was dismissed.

Discussion

The Court of Appeal considered relevant case law before arriving at their decision. In R v Kent [1983] 77 Cr App R 120, Lord Lane CJ said as follows:

‘There have been further difficulties arising in the following way. There have, on occasions, been, understandably, efforts made by court staff to prevent mistakes arising. This has resulted in discrepancies being observed between the sentence pronounced by the Judge and that appearing on the record sheet. We wish to make […] clear: first of all, the order of the court is that pronounced by the judge in open court. Secondly, the responsibility of the court staff is to make a record which accurately reflects that pronouncement.’

Lord Justice Davis gave examples where there may be discussions surrounding sentence in the days that follow by email, etc. If the alteration is limited/non-controversial or technical in some way, the hearing will not require attendance but any party. However, when the varied sentence is announced at court in public it ensures the ‘lawfulness of the sentence’ (paragraph 12).

As such advocates should be vigilant to any communications of errors and how they are dealt with bearing this guidance in mind – most crucially the need for public pronouncement.

Full Judgement

The full judgment can be viewed here.