Delay in Sentencing – Can it work in your favour?
Waiting to know your fate is never easy. When there is a delay in sentencing it gets even harder. There have been widespread reports in the press about spare courtroom capacity, with judicial sitting days at an all-time low. These reports correspond to our own experience and means cases are taking longer to get to court. But can a delay in sentencing work in your favour?
Unfortunately, court delay is often combined with significant delays in investigating and charging defendants to court. This can mean a very long period between the commission of any crime and sentencing.
As advocates, we are increasingly concerned with the effect of delay on the people we represent. We can use several legal principles in an attempt to mitigate the sentence passed.
On occasion, this can work in our client’s favour. It can reduce the length of the overall sentence; allow a custodial sentence to be suspended where it would not otherwise be, or justify a non-custodial sentence in circumstances where custody would be the norm.
What does the law say?
In Prenga  EWCA Crim 2149 the court held:
“We start by considering the nature and extent of the discretion to adjust otherwise lawful sentences where required to achieve justice. It is, in this regard, well established that a sentencing judge may reduce the sentence that would otherwise be imposed to achieve justice and to reflect exceptional factors. The paradigm illustration flows out of the requirement in ECHR art.6 that proceedings must be concluded within a reasonable time. Where proceedings are unduly delayed that delay may count as a mitigating factor in appropriate circumstances. The threshold is necessarily a high one.”
How much time has actually passed?
In Dyer v Watson; K v HM Advocate  1 A.C. 379;  3 W.L.R. 1488 Lord Bingham of Cornhill observed that in any case in which it was contended that art.6 was violated by virtue of delay the first step was to consider the period of time which had, in fact, elapsed.
Unless that period gave grounds for real concern it was almost certainly unnecessary to go further “… since the convention is directed not to departures from the ideal but to infringements of basic human rights”.
The threshold for proving a breach of the reasonable time requirement was a high one, “not easily crossed”.
In Mills (Kenneth Anthony) v HM Advocate (No.2)  1 A.C. 441 Lord Hope (at ) recognised that delay could in an appropriate case justify an adjustment to sentence. One possible rationale for this is the anxiety experienced by a defendant, resulting from the abnormal prolongation of proceedings. Another possible explanation might be that a defendant’s life has changed during the period of delay such that the person who stands to be sentenced is, in terms of character, not the person who committed the offence.
In Attorney Generals Reference No.79 of 2009  EWCA Crim 338 it was held (per Hughes LJ VP at ) that delay:
“… is of relevance if not to a formal assessment of Article 6 then undoubtedly to the broader question of what a just sentence is when eventually and belatedly a conviction occurs”.”
Reductions in sentence will be unusual
The judge, nonetheless, emphasised that applications for reductions in sentence would be “unusual”. The authorities relating to delay and art.6 demonstrate that unnecessary delay can amount to mitigation resulting in reduction of sentence. However, questions of delay are also instances of “… the broader question of what a just sentence is”. It follows that delay, whilst being an obvious example, is not the only reason why a sentence might be reduced in order to ensure overall justice.
In R. v Kerrigan (David Joseph)  EWCA Crim 2348, the Court of Appeal was required to consider broad questions of justice in the context of custodial sentences ordered to be run consecutively to existing sentences.
In para  of the judgment the court set out seven principles which might apply where a court was imposing sentences for different offences and where they might apply concurrently or consecutively leading to potentially arbitrary results.
For present purposes the seventh principle is relevant and was put like this:
“a judge retains the discretion to do justice on the particular facts of a case, for example in the case of excessive delay, and may therefore reduce an otherwise appropriate sentence accordingly”.
In all cases we will ensure that the impact of any delay in sentencing in your case is fully explored. This means that it can be reflected during sentencing.
How we can assist
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email email@example.com. Let us help.
Please note that the information contained in this article was correct at the time of writing. There may have been updates to the law since the article was written, which may affect the information and advice given therein.