Original sentence for marital rape restored by Supreme Court after reduction by Court of Appeal

Charleton J (nem diss): Guidance as to sentencing - rape - marital rape - threat with knife - threats to kill after rape - convictions on other charges - surveillance of wife's mobile phone - attack with hammer - reduction of sentence by Court of Appeal - ten years, with 18 months suspended (i.e. custodial sentence of eight-and-a-half years) - conditional jurisdiction to reconsider sentence - jurisdiction of Supreme Court to hear appeals - Article 34.4.3° - general importance - interests of justice - whether Supreme Court had jurisdiction to hear a second appeal, or to increase sentence - principles of sentencing and existing sentencing guidance - central role of trial judge in sentencing - identification of sentencing 'bands' - no appeal of sentences by the Director of Public Prosecutions.

"Justice as administered in the courts involves the best attempt to find fact correctly and to apply law in pursuit of a result of litigation that is directed by law in the aim of giving to parties before the courts what is due to them. Central to that principle, of “seeking to promote the common good with due observance of Prudence, Justice and Charity”, as the Preamble to the Constitution sets as the means to assuring the “dignity and freedom of the individual” and attaining “true social order”, must be the substitution of what is correct in law for the error made and which is successfully appealed.
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If there had been a trial, then the sentencing judge will have a full appreciation of the impact of the crime and perhaps some especial insight into the attitude of the accused and the validity of any plea of remorse or extenuating circumstances. This is to be contrasted to the necessarily limited exercise on appeal, as an analysis of paper and legal argument.
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Hence, it is a matter of analysis into which sentencing band culpability for a particular crime properly fits. With the measure of appreciation due to sentencing judges, it is less easy to find an error of principle once that band has been correctly identified.
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By reason of the circumstances of the rape, the only sentence under appeal by the accused here, of the domination of the woman who was entitled instead to repose trust in her husband, the chilling threat of violence, the betrayal of the sanctity of the home and the incipient menace that kept the victim effectively captive overnight and worried about her responsibilities as a mother, this was a case correctly characterised by Kennedy J as being in the upper bracket of the more serious category of rape cases. On appeal, no error by the Central Criminal Court in sentencing has been identified and hence the appeal by the accused should be dismissed."

O'Malley J (concurring): Issues of jurisdiction - approach of Supreme Court to an error in sentencing - whether reduced sentence of the Court of Appeal should be left in place - whether to treat appeal as on 'undue leniency' - s.29 of the Courts of Justice Act 1924 - s.2 of the Criminal Justice Act 1993 - jurisdiction of Supreme Court - entitlement of Supreme Court to vary order of lower court -

"What is certainly clear is that there is no category of decisions, of either the High Court or the Court of Appeal, that may not be appealed to this Court. The key question in every case will be the criteria set out in the Act. Thus, the Court has granted leave to appeal against decisions of the High Court made under statutes that provided that such a decision was to be final and unappealable, or appealable only with a certificate from the court below ... That situation arises because the Constitution no longer permits the exclusion of any category of case from the appellate jurisdiction of this Court (in contrast to that of the Court of Appeal). Given the terms in which the Constitution has conferred the Court’s jurisdiction, legislative intervention has not been necessary to enable such appeals. Given the foregoing description of the Court’s jurisdiction, I cannot see that the Constitution envisages any category of case in which the Court would have jurisdiction to hear an appeal, and to express a view, but would not have jurisdiction to make an order to put its decision into effect."

"I think it also worth stressing that in this case the Court is not concerned with a jury verdict, and the special considerations attending a verdict of acquittal (especially where that verdict is on the merits rather than by direction). This appeal relates only to sentence, which is a matter reserved to the trial judge and the appellate courts. In principle, judicial errors are subject to correction by an appellate court exercising lawful jurisdiction."