The Attorney General and Unduly Lenient Sentences: Time for a Review

2 August 2017

It was announced this week that a record 141 sentences were increased by the Court of Appeal following a referral by the Attorney General.  A total of 190 cases were referred to the Court of Appeal for re-consideration.

However, this record number of unduly lenient sentences should not be a considered to be measure of success or failure of the criminal justice system.  Rather, this is a salient reminder of the increasing politicisation of the criminal justice system – and in particular, sentences for criminal offences. 

Whilst there is nothing wrong in principle with the idea of reviewing sentences - and the number of occasions on which the sentences are increased may suggest it is indeed a necessary mechanism, the role of the Attorney General of personally reviewing each referral is a constitutional relic.  It may be suggested that it is an anachronism that an elected MP and Government Minister should personally make decisions as to whether or not to refer a case to the Court of Appeal.  The Attorney General has retained the functions of being the Chief Legal Adviser to the Crown, the Superintendent of prosecuting authorities as well as a Government Minister.  In contrast, the quasi-judicial functions of the Home Secretary and Lord Chancellor have been the subject of modernising reforms.

The news of increasing complaints of unduly lenient sentences and a record number of referrals to the Court of Appeal suggests that there should be a sensible constitutional debate as to the future role of the Attorney General in reviewing complaints of unduly lenient sentences.  Under the current regime anybody (even if they are unconnected with the case) can request that the Attorney General reviews a sentence.  Given the record number of complaints, this is likely to become an increasing burden on the workload of the Attorney General.

One proposal to remove any perception of political interference from the sentencing process would be for this role to be assumed by an independent non-executive agency which could provide an impartial review of the circumstances of the offence and sentence.  This would have the benefit of a politically neutral body; unconnected to the Crown or Prosecuting authorities providing an impartial opinion on the propriety of sentences.  As a consequence, the Court of Appeal would not be considering “References” where a Government Minister has personally recommended that a sentence is increased, hence providing a greater separation of the Executive from the Judiciary.  Such a move would also have the benefit of allowing the Attorney General to focus on being the Chief Legal Adviser to the Crown and on improving the justice system.

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