Unduly lenient sentences: a numbers game

7 August 2018

Yesterday, the Attorney General’s Office issued a press release “More victims and their families get justice.” This is based on an assessment of Unduly Lenient Sentence Referral Scheme overseen by the Attorney General. While the statistics may be headline grabbing, further analysis suggests the system is in need of reform.

The headline of the press release is “137 offenders had their sentence increased in 2017.”  A total of 173 sentences were referred to the Court of Appeal by the Attorney General in 2017 because they were considered to be “far too low”.  The press release confirmed that the Attorney General’s Office received 943 requests for referrals.

However, the number of cases successfully referred to the Court of Appeal by the Attorney is lower than the previous year.  In the previous year, 141 sentences were increased by the Court of Appeal, out of a total of 190 cases which were referred by the Attorney General.  In the previous year, the Attorney General’s Office received 837 requests for referrals.

Therefore, this year, the number of requests for referrals received by the Attorney General’s Office increased, the number of referrals made to the Court of Appeal reduced and the number of sentences altered by the Court of Appeal also reduced.   However, it is clear from the increasing number of complaints received by the Attorney General’s Office that this is becoming an increasing part of the Attorney General’s Office portfolio.

The continued increase in the number of complaints of unduly lenient sentences and the work that this entails for the Attorney General’s Office, Prosecutors and Court of Appeal  demonstrate that further thought should be given to the 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.

It is often the case that the Judge who first heard the matter in question (whether a trial, or a plea of guilty) is best placed to formulate an appropriate sentence based on the facts of the case and the circumstances of the Defendant.  Judges are required to exercise their discretion when determining a sentence, but are required to apply the Sentencing Guidelines. Sometimes, the exercise of judicial discretion may mean that the sentence, as formulated by the Judge is different to the sentence suggested by the Sentencing Guidelines.  As the Attorney General recognises “A sentencing exercise is not an exact science.”  The unduly lenient procedure, by its nature, allows for the sentencing process to be de-constructed and a new sentence imposed by Judges more rigidly applying the Sentencing Guidelines.  This process entails a more scientific approach to sentencing, which goes someway to undermining the discretion of the sentencing judge.

We have previously written about the unduly lenient procedure. However, it is of particular concern that sentencing decisions are becoming increasingly politicised – and this is because the decision as to whether or not to refer a sentence to the Court of Appeal rests with the Attorney General, a Minister and Member of Parliament.

One potential solution to remove any suggestion of political or populist persuasion 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. 

Alternatively, the decision could be vested solely with the Crown Prosecution Service, which holds an interest in ensuring that unduly lenient sentences are challenged.  After all, the decision as to whether or not to refer a sentence to the Court of Appeal does not require Ministerial oversight and it should be a decision made by a senior lawyer, not a politician.

A consequence of either potential solution would mean that the Court of Appeal would no longer 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. 

This may also have the benefit of allowing the Attorney General to focus on being the Chief Legal Adviser to the Crown - and on delivering much needed reforms to the criminal justice system.

Further information

Should you require any further information on this issue please contact our criminal litigation team.  

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