OpenLegislation

Section 228 Appeals where previous convictions set asideI1I2

United Kingdom

F1(1A)

Subsection (3) applies in the cases described in subsections (1B) to (2).

(1B)

The first case is where—

(a)

a sentence has been imposed on any person under F2section 273(3) or 283(3) of the Sentencing Code (life sentence for second listed offence) as applied by section 218A of this Act;

(b)

a previous conviction of that person has been subsequently set aside on appeal; and

(c)

without that conviction, the previous offence condition mentioned in section 218A(1)(d) would not have been met.

(1C)

The second case is where—

(a)

a sentence has been imposed on any person under section 225(3) of the 2003 Act (as applied by section 219(2) of this Act);

(b)

the condition in section 225(3A) of the 2003 Act was met but the condition in section 225(3B) of that Act was not; and

(c)

any previous conviction of the person without which the condition in section 225(3A) would not have been met is subsequently set aside on appeal.

(1D)

The third case is where—

(a)

a sentence has been imposed on any person under F3section 266 or 279 of the Sentencing Code (extended sentence for certain violent, sexual or terrorism offenders aged 18 or over) as applied by section 219A of this Act;

(b)

the condition in section 219A(2) was met, but the condition in section 219A(3) was not; and

(c)

any previous conviction of the person without which the condition in section 219A(2) would not have been met is subsequently set aside on appeal.

(1E)

The fourth case is where—

(a)

a sentence has been imposed on any person under section 227(2) of the 2003 Act (as applied by section 220(2) of this Act);

(b)

the condition in section 227(2A) of the 2003 Act was met but the condition in section 227(2B) of that Act was not; and

(c)

any previous conviction of the person without which the condition in section 227(2A) would not have been met is subsequently set aside on appeal.

(2)

F4The fifth case is where—

(a)

a sentence has been imposed on any person by virtue of section 225 or 226 F5of this Act; and

(b)

any previous conviction of his without which that section would not have applied has subsequently been set aside on appeal.

(3)

Where this subsection applies, an application for leave to appeal against the sentence may be lodged at any time within 29 days beginning with the day on which the previous conviction was set aside.

F6(3A)

Subsection (3B) applies where—

(a)

a sentence has been imposed on a person under F7section 273(3) or 283(3) of the Sentencing Code (life sentence for second listed offence) as applied by section 218A of this Act;

(b)

a previous sentence imposed on that person has been subsequently modified on appeal; and

(c)

taking account of that modification, the previous offence condition mentioned in section 218A(1)(d) would not have been met.

(3B)

An application for leave to appeal against the sentence mentioned in subsection (3A)(a) may be lodged at any time within 29 days beginning with the day on which the previous sentence was modified.

(4)

F8Subsections (3) and (3B) have effect notwithstanding anything in section 9(1) of the Court Martial Appeals Act 1968 (c. 20).

Annotations

Textual amendments

F1

S. 228(1A)-(1E) substituted for s. 228(1) (3.12.2012) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 22 para. 30(2); S.I. 2012/2906, art. 2(t)

F2

Words in s. 228(1B)(a) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 25 para. 50(2) (with s. 416(7), Sch. 27); S.I. 2020/1236, reg. 2

F3

Words in s. 228(1D)(a) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 25 para. 50(3) (with s. 416(7), Sch. 27); S.I. 2020/1236, reg. 2

F4

Words in s. 228(2) substituted (3.12.2012) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 22 para. 30(3)(a); S.I. 2012/2906, art. 2(t)

F5

Words in s. 228(2)(a) inserted (3.12.2012) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 22 para. 30(3)(b); S.I. 2012/2906, art. 2(t)

F6

S. 228(3A)(3B) inserted (3.12.2012) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 22 para. 30(4); S.I. 2012/2906, art. 2(t)

F7

Words in s. 228(3A)(a) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 25 para. 50(4) (with s. 416(7), Sch. 27); S.I. 2020/1236, reg. 2

F8

Words in s. 228(4) substituted (3.12.2012) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 22 para. 30(5); S.I. 2012/2906, art. 2(t)

Commencement

I1

S. 228 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I2

S. 228 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Notes on the whole Act

Textual amendments

F1

Act expires on 15.12.2022 by virtue of s. 382 (as substituted (15.12.2021) by Armed Forces Act 2021 (c. 35), ss. 1(1), 24(2)(a)) (subject to power to continue in s. 382(2)(3) as so substituted)

Notes on Part 8

Modifications

C1

Pt. 8 applied (with modifications) (31.10.2009) by The Armed Forces (Court Martial) Rules 2009 (S.I. 2009/2041), art. 1, rule 128(2)

Notes on Required or discretionary sentences for particular offences

Textual amendments

F1

S. 219 cross-heading substituted (31.10.2009) by Criminal Justice and Immigration Act 2008 (c. 4), s. 153(7), Sch. 25 para. 13(4); S.I. 2009/1028, art. 2(b)