321. New evidence—effect on sentence

321. New evidence—effect on sentence

(1) Subject to subsections (2) and (3), on an appeal under this Part, including an appeal by the DPP, the Court of Appeal must not increase a sentence by reason of any evidence that was not given at the trial or sentencing hearing.

(2) On an appeal under section 291, the Court of Appeal may increase a sentence by reason of evidence of the failure to fulfil an undertaking referred to in section 291(a).

(3) On an appeal under this Part, including an appeal by the DPP, the Court of Appeal may increase a sentence, by reason of any evidence that was not given at the trial or sentencing hearing, if the court considers that—

(a) the originating court was misled at the sentencing hearing as to a material fact; and

(b) an increase in sentence is necessary in the interests of justice.