Williams v. The State (Trinidad and Tobago) [2005] UKPC 11 (15 March 2005)

	Privy Council Appeal No. 55 of 2004

Earl Williams	Appellant
	v.
The State 	Respondent

	FROM

	THE COURT OF APPEAL OF
TRINIDAD AND TOBAGO
	---------------

	REASONS FOR DECISION OF THE LORDS OF THE
	JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, OF THE
	26th January 2005, Delivered the 15th March 2005
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	Present at the hearing:-
			Lord Bingham of Cornhill
Lord Hoffmann
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Carswell
		       [Delivered by Lord Carswell]
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1.	On 18 July 1988 the appellant, a police officer in Trinidad, was convicted after a trial before Brooks J and a jury of raping a woman who had on the night of 16 July 1984 come to La Brea police station, where the appellant was on duty.  He was sentenced to 25 years’ imprisonment at hard labour, 20 strokes of the birch and to be kept in solitary confinement for one month during the first year of his imprisonment.  His earliest date of release would be 17 March 2005, were it not for the fact that the Court of Appeal increased the sentence of imprisonment to one of 30 years.  The appellant has appealed by special leave to the Board against the validity of that part of the order of the Court of Appeal which increased his sentence.  At the conclusion of the hearing the Board announced that the appeal would be allowed and that part of the order of the Court of Appeal quashed, with reasons to be given at a future date.  This judgment now contains the reasons of the Board.

2.	The appellant on 27 July 1988 applied to the Court of Appeal for leave to appeal against his conviction and sentence.  The applications were heard by the court (Bernard CJ, Hamel-Smith and Gopeesingh JJA) in June/July 1992, but judgment was not given until 20 May 1994.  The written judgment of the court, delivered by Bernard CJ, dealt in detail with the conviction and the appellant’s grounds of appeal, all of which were rejected.

3.	The Chief Justice then turned to the issue of the sentence imposed.  He stated at page 167 of the record:
“With regard to ground 8, the contention here was that the sentence was manifestly excessive.  The argument, however, was not advanced with any semblance of conviction, and, in the Court’s opinion not unexpectedly.”

He set out the judge’s sentencing remarks, in which he emphasised the seriousness of the offence committed by a police officer on duty in a police station against a young woman who had come to the station “seeking protection and in pursuit of her rights”.  The Chief Justice said that the court entirely endorsed the judge’s remarks and went on:
“There are no mitigating circumstances in this case whatsoever.  In fact the offence is one which calls for a penalty that would reflect society’s utter abhorrence at this invasion upon its confidence and trust.

Leave to appeal against conviction is refused.  With regard to the appeal against sentence this too is refused.  Besides, acting under our powers in ss. 44(3) and 49(1) of the Judicature Act Ch. 4:02, the sentence is increased to one of 30 years hard labour which is to take effect from the date of the applicant’s conviction.”

4.	The order of the Court of Appeal, addressed to the Commissioner of Prisons, stated that the court had given judgment to the effect following:
“Leave to appeal against conviction and sentence is refused.  The sentence of twenty-five (25) years is increased to thirty (30) years. Sentence to take effect from the date of conviction.”

5.	The Supreme Court of Judicature Act (Chapter 4.01 of the Laws of Trinidad and Tobago) provides in section 43(c) that a person convicted on indictment may appeal to the Court of Appeal, with the leave of the Court of Appeal, against the sentence passed on his conviction.  Section 44(3) then provides:
“On an appeal against sentence the Court of Appeal shall, if it thinks that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict whether more or less severe, in substitution therefore [sic] as it thinks ought to have been passed, and in any other case shall dismiss the appeal.”

It may be seen from this provision that the Court of Appeal has to take a series of steps to vary a sentence.  It must consider the sentence imposed by the trial judge and form the view that a different sentence should have been passed.  At that stage, if leave to appeal has not earlier been given, it must give leave and turn the application for leave into an appeal.  It must then quash the sentence passed at the trial and pass such other sentence in substitution therefor as it thinks ought to have been passed.

6.	Reliance was also placed in counsel’s argument on behalf of the State on section 49(1), the material part of which reads:
“… in the case of an appeal under this Act, any imprisonment under the sentence of the appellant, whether it is the sentence passed by the Court of trial or the sentence passed by the Court of Appeal, shall, subject to any directions given by the Court of Appeal, be deemed to be resumed or to begin to run, as the case requires, … from the day on which the appeal is determined …”

7.	The case made by Mr Knowles on behalf of the appellant was that the court had failed to follow these steps.  It had not given leave and therefore no appeal was in being.  It did not in terms quash the judge’s sentence, merely stating that it was increased to one of 30 years.  Counsel also argued that it is incumbent on an appellate court considering an increase in sentence to give an indication to this effect to the applicant’s counsel, in order to give him an opportunity to present reasons why the sentence should not be increased or, if he considers it advisable, to ask the leave of the court to withdraw the application for leave to appeal against sentence.  He also submitted that the court should give reasons why the sentence was wrong and required to be increased.
8.	Mr Dingemans QC for the State argued per contra that the court had followed the correct steps when it addressed the question of sentence, that it intended in what it said to give leave and quash the judge’s sentence and that the formal order incorrectly expressed the decision of the court.  He also submitted that the court, by adverting to section 49(1) of the Supreme Court of Judicature Act and providing that the increased sentence was to take effect from the date of conviction, must have considered that an appeal was in being, the necessary condition for giving a direction to this effect.  Mr Dingemans argued that there is no duty on a court which has power to increase sentence to give an applicant the opportunity to withdraw his application for leave to appeal.  Relying by way of analogy on the statement of Lord Lane CJ in R v Manchester Crown Court, ex parte Welby (1981) 73 Cr App R 248, 252, he contended that only in exceptional circumstances would the court grant leave to withdraw the application once the hearing had started.

9.	Their Lordships are unable to accept the arguments presented on behalf of the State.  The formal order of the Court of Appeal stated clearly that the application for leave to appeal against sentence was refused.  This order has at no time been amended to change its terms.  Bernard CJ stated in his judgment “Leave to appeal against conviction is refused.  With regard to the appeal against sentence this too is refused.”  The normal course for the court, if it intended to vary the sentence, would have been to follow the procedure outlined in paragraph 5 of this judgment, namely, to consider the correctness of the judge’s sentence, decide whether it should be varied, give leave to appeal against sentence, quash the judge’s sentence and substitute a varied sentence.  The court did not in terms take any of these steps.  Their Lordships do not consider that it could be said to have followed this procedure by necessary implication from what the Chief Justice stated.  Nor does it appear that in invoking section 49(1) the court adverted to the question whether there was an appeal before the court.  It must follow that since leave to appeal was not given, there was never an appeal against sentence in being and the power to increase sentence conferred by section 44(3) did not come into operation.  The purported increase in sentence was therefore of no effect and that part of the order of the court must be set aside.

10.	That conclusion is sufficient to dispose of the appeal, but their Lordships will express their opinion shortly on the other grounds advanced, since the points may arise on future occasions.  They consider that an appellate court which has power to increase a sentence and is considering the exercise of that power should invariably give the applicant for leave to appeal against sentence or his counsel an indication to that effect and an opportunity to address the court on the increase or to ask for leave to withdraw the application.  This was not done in the present case, according to the affidavit of Mr Nathaniel King, who appeared for the appellant in the Court of Appeal.  The Board indicated the need to follow such a course in Skeete v The State [2003] UKPC 82 at paragraph 44 of their judgment and their Lordships now confirm that failure to do so would in their opinion be unfair and a breach of natural justice.  The arguments to be presented against an increase in sentence may vary from those advanced in favour of a reduction and the applicant should have the opportunity to put them before the court.

11.	He should also have the opportunity to ask for leave to withdraw his application for leave to appeal against sentence.  Their Lordships do not consider that in these circumstances the statement of the Divisional Court in R v Manchester Crown Court, ex parte Welby, which was a case of an appeal rather than an application for leave to appeal, should govern the approach of the court.  It is their experience in jurisdictions in which appellate courts have power to increase sentences (unlike the present law in England and Wales) that it is regarded as necessary for the court to give an indication that it is considering an increase and furnish an opportunity to the applicant to make appropriate submissions or to seek leave to withdraw his appeal, and that it is also the regular practice of those courts to accede to applications for such leave.  Their Lordships consider that that is a necessary part of a fair hearing.

12.	It is also very desirable that if the court does decide to increase a sentence it should set out sufficiently clearly its reasons for doing so.  In the present case brief reasons were given in the court’s judgment but their Lordships would have thought it preferable for it to have said more about the reasons why it thought the judge’s sentence inadequate, perhaps with reference to other comparable cases.