Neutral Citation Number: [2010] EWCA Crim 982
Case No: 2010/1081/A1 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Monday, 19 April 2010
 
B e f o r e:

MR JUSTICE HENRIQUES 
 
HIS HONOUR JUDGE ROBERTS QC
(Sitting as a Judge of the CACD) 
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R E G I N A 

v 

PETER SHAW
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Mr D McReddie appeared on behalf of the Applicant 
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J U D G M E N T 

1.	JUDGE ROBERTS:  The Registrar has referred to the full court an application by Peter John Shaw, who is now aged 44, for leave to appeal against sentence and for the necessary extension of time for applying for such leave.  The case is unusual because Mr McReddie on behalf of the applicant realistically and properly accepts that the sentence imposed cannot be said to have been wrong in law or manifestly excessive.  His submission is that on compassionate grounds we should reduce it so that the applicant can be released and receive medical treatment which he requires in the community.  
2.	In the circumstances the facts of the offences may be shortly stated.  On 18th May 2008 police officers stopped the applicant as he was driving his car near Stockton‑on‑Tees.  The car was searched and a torch was recovered.  Inside the torch were found 32 grams of amphetamine at two per cent purity; there were also some snap bags, some cash and a set of scales.  He was arrested.  It transpired that he was staying temporarily at the home address of a man named Ian Taylor.  When that address was searched a further 9.3 grams of amphetamine at between one and two per cent purity was recovered.  The amphetamine had a street value of about £460.  For possession of the amphetamine with intent to supply, to which he pleaded guilty, the applicant received a sentence of 18 months' imprisonment. 
3.	On 20th November 2008, found close to where the applicant was living at that time, was a Land Rover which had been stolen nine months previously.  The police searched the applicant's address.  They found the keys to the stolen vehicle there, as well as a bag of heroin.  The applicant pleaded guilty to handling the stolen Land Rover, for which he received a sentence of nine months' imprisonment, and to simple possession of the heroin for which he received a short concurrent sentence.  However, those sentences were ordered to run consecutively to the 18 months for possession of amphetamine with intent to supply.  
4.	Finally, late at night on 19th January 2009 police officers saw the applicant driving a vehicle in the Stockton area.  He had his seven‑year‑old son with him.  A chase ensued over a short distance and it lasted no more than a couple of minutes before the applicant managed to abandon the vehicle.  He was arrested a week later.  He denied the offence in interview, but in due course pleaded guilty to dangerous driving for which he received a sentence of nine months' imprisonment to consecutively to the other sentences.  The total sentence imposed on him was therefore three years.  
5.	In passing sentence the learned judge observed that this was the third time the applicant had to be sentenced for possession of drugs with intent to supply.  He was clearly not motivated to do anything to address his misuse of drugs.  The learned judge directed of course that the 160 days which the applicant had spent on remand in custody or on electronic tag should count towards his sentence.  
6.	As Mr McReddie accepts, given the applicant's background these sentences in themselves are not open to challenge.  If anything they might be regarded as generous to the applicant.  
7.	We are told that whilst on remand before being sentenced the applicant was taken ill in prison.  He went blind in his left eye and weak on the right side and was taken in a wheelchair to hospital.  Tests were undertaken but failed to reveal any serious problem and he was returned to prison.  He was brought from there to court to be sentenced on 18th August.  Two days later, on 20th August, he had a stroke in prison and was taken to hospital where it was confirmed that he was in an extremely serious condition and there was a high risk of death.  He received emergency treatment followed by a period of rehabilitation on the ward.  
8.	According to a report dated 28th January from a consultant physician at the hospital, he did relatively well compared to some people who have suffered strokes, and his prognosis had very definitely improved considerably.  He was put on appropriate medication to prevent a recurrence.  On 22nd September he was discharged from hospital and returned to prison.  The consultant, at the date of his report, was due to see the applicant again in a few weeks time to review progress.  Of course the therapy which had been started in hospital had been continuing in prison.  
9.	Until today that was the only medical evidence available to us.  This morning we have been provided with a report from the health care department at the prison where the applicant is serving his sentence.  That report does not suggest that there has been any difficulty in managing the applicant's condition in prison or that his continued incarceration is having an adverse effect on his health.  
10.	This application has required us to consider the respective roles of this court and of the Secretary of State in relation to a prisoner who it is suggested should be released on compassionate grounds.  We note that section 248(1) of the Criminal Justice Act 2003 provides that:
"The Secretary of State may at any time release a fixed‑term prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner's release on compassionate grounds." 
We are helpfully told by Mr McReddie that under the Prison Service Rules the prison governor may, at least in certain circumstances, exercise that power on behalf of the Secretary of State.  There is no doubt then that in a case like this application may be made to the Secretary of State to release the prisoner on licence and the Secretary of State has a complete discretion in the matter subject only to an application for judicial review if his decision is Wednesbury unreasonable.  
11.	The function of this court in relation to sentences passed in the Crown Court is, by contrast, to review the sentencing process which took place there.  The general rule is that this court will only interfere with a sentence if persuaded that at the time it was passed it was unlawful or wrong in principle or manifestly excessive.  None of those things can be said of the sentences passed in this case.  
12.	It is true that on occasions this court will have regard to matters arising since the sentence was passed, for example an appellant's good progress in prison.  Generally speaking it is likely to do so only where it has already concluded that the sentence passed in the Crown Court was either manifestly excessive or unduly lenient and where it is considering what sentence to impose in its place.  We consider that in a situation such as has arisen in this case it will normally be appropriate for this court to leave it to the Secretary of State to decide whether to exercise his powers under section 248.  One advantage of that course is that the Secretary of State is likely to be able to obtain full and up‑to‑date medical information about the prisoner's condition and prognosis and about how his condition may best be managed by the doctors in the future.  
13.	So it is that in this case, while we are of course sympathetic to the applicant's plight, we feel that the appropriate course for us to take is to leave the matter to the Secretary of State so that he may release the applicant on licence if he considers that course to be appropriates.  We do not of course express any view as to what the Secretary of State's decision should be if any application is made to him.  
14.	It is clear that the need for an extension of time has arisen because of the applicant's medical problems, and if we had thought there was an arguable ground of appeal we would certainly have granted the necessary extension.  As it is, we are afraid that any appeal would be bound to fail and in the circumstances there is no point in our granting the extension or giving leave, so we do not do so.