The ’56 –Day Slip Rule’ (‘the Slip Rule’)
Nazaqat Maqsoom of KANGS Solicitors outlines the circumstances in which the Slip Rule can be applied and looks at a recent Judgement by the Court of Appeal which considered its application.
What is the Slip Rule?
The Crown Court, by virtue of Section 155 Powers of Criminal Courts (Sentencing) Act 2000, as amended by section 47 and schedule 8 paragraph 28 Criminal Justice and Immigration Act 2008, has the power to alter a sentence or other order made by the Crown Court within 56 days of the date from which it was made.
When is the Slip Rule used?
The Slip rule is generally used for altering a sentence or an order where a factual or legal error has been made or in cases where further evidence/information has come to light that is relevant to the sentence or order made.
The Slip Rule may also be used to vary a Confiscation Order made under the Proceeds of Crime legislation.
It can also be used where, for example:
- the Court has overlooked statutory provision limiting its powers or
- in circumstances in which a Judge is satisfied that a material error has been made in the sentencing process or
- where the sentence was based on mitigation and subsequently the mitigation was found to be false.
Current Guidance On The Slip Rule
Very recently the Court of Appeal provided some guidance in the case of R v Warren [2017] EWCA Crim 226. The case specifically dealt with the Slip Rule.
Case Summary:
- The Appellant pleaded guilty to an offence of conspiracy to rob and was subsequently sentenced to 6 years 8 months imprisonment.
- The Attorney General indicated that he was intending to review the Judge`s sentence as unduly lenient.
- It was drawn to the Judge’s attention that he had given an Indication and sentenced on a faulty basis.
- In accordance with the Slip Rule, the case was relisted for the purposes of a re-sentencing hearing.
- The matter was relisted and sentence was increased to 8 years 6 months.
- The case proceeded to the Court of Appeal
The Court of Appeal held:
In our view, the current state of the law as shown by the authorities is as follows:
(1) Where an error occurs in the factual basis of sentence it should be pointed out to the court as soon as possible and consideration should be given to correcting it at the earliest opportunity, preferably by revisiting sentence on the same day rather than a subsequent day.
(2) A judge should not use the slip rule simply because there is a change of mind about the nature or length of the sentence but the slip rule is available where the judge is persuaded that he had made a material error in the sentencing process whether of fact or law. It is relevant in considering whether he had made a material error that that error might be corrected by the Court of Appeal on the Attorney General's application.
(3) The sooner the slip rule is invoked in such a case the better. The passage of time from the first decision to its revision is a material consideration as to how the power should be exercised but there is a 56‑ day cut off in any event.
(4) A judge should not be unduly influenced by the prospect of a reference being made to change the sentence that he thought was right at the time by the mere threat of a review by the Attorney General. If the judge concludes that the sentence was not wrong in principle and was not unduly lenient, he should not change his mind simply because there is the possibility of a reference. The judge can then use the opportunity at the further sentencing hearing to give any further explanations for the original decision for the sentence.
(5) Sentencing and re‑ sentencing should take place in the presence of the appellant and administrative convenience should not be allowed to degrade that principle. But if for one reason or another the appellant cannot be brought to court in the 56 days there is a discretion to proceed in his absence so long as there is an advocate who can fully represent in the sense of who is properly instructed as to the relevant facts and is able to assist the court to make pertinent submissions on the facts and the law, as clearly this appellant's advocate was on the date of the re‑ sentence.
(6) Although Nodjoumi no longer identifies the basic rule in such cases, the appearance of justice and the impact of the change on a defendant where an error has not been induced by anything that he has said or done is a relevant consideration and in appropriate cases it can be reflected in a modest discount to the proposed revised sentence to reflect this fact. This is done in this case. We consider that modest discount was appropriate and sufficient.
As is clear from the case above, the Courts have discretion and can only use the rule in certain circumstances, discussed above; however any variation must be within the strict time limit imposed by statute.
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