The general principles which apply in relation to the admission, pursuant to section 23 of the Criminal Appeal Act 1968, of fresh evidence in appeals against conviction will generally apply also in appeals against sentence, so that it will usually be case and fact specific and will focus on the interests of justice. In sentencing appeals the court will scrutinise intensely any application to give factual explanation that was not before the sentencing court. The terms of the Criminal Practice Direction make clear the procedure which should be followed in relation to establishing the factual basis for sentencing. It is therefore the duty of all advocates to deploy before the sentencing judge all the evidence, information and other material on which they seek to rely. In certain circumstances the court will receive updated information about the offender which was not before the trial judge. The formal procedures for the admission of fresh evidence are not followed. The Court of Appeal, Criminal Division, simply considers the evidence before it. The exception is strictly limited. It will include updated pre-sentence and prison reports on conduct in prison after sentence, but not fresh psychiatric or psychological evidence in support of an argument that a finding of dangerousness ought not to have been made or a hospital order should have been made. In such a case, the court will apply the provisions of section 23. Compliance with section 23 is necessary for two reasons: first, because it is incumbent on those acting for the defendant to call all the evidence before the sentencing court, persuasive evidence is required to explain why it was not all called; second, the court must consider whether it is in the interests of justice that it should be admitted notwithstanding that failure. If the advocate representing the applicant before the court did not represent the applicant at the trial or sentencing hearing, that advocate must obtain information from the advocate previously instructed as to why the evidence was not called (paras 1–10).

R v Jones (Steven) [1997] 1 Cr App R 86, CA, In re Caines [2007] 1 WLR 1109, CA, R v Erskine [2010] 1 WLR 183, CA, R v Beesley [2012] 1 Cr App R (S) 15, CA and R v Thames Water Utilities [2015] 1 WLR 4411, CA considered.

Where a defendant has pleaded guilty to an offence for which the sentence is mandatory and he wishes to submit that there are exceptional circumstances which justify a lesser sentence, the procedure before the sentencing judge should follow that of a Newton hearing (R v Newton (1982) 77 Cr App R 13). If such a hearing takes place the judge must determine the matters to the criminal standard of proof and the burden is on the Crown to disprove the defendant’s account of the circumstances of the offence. If the Crown fails to do so, the judge must proceed on the basis the defendant's version is correct. It does not, however, follow that the judge, even if he accepts the defendant's version of events, will find that it amounts to exceptional circumstances. The hurdle for the defendant, in establishing exceptional circumstances, remains a high one (para 121).