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Home » Professionals » Legal Guidance » A to C » Appeals Against Unduly Lenient Sentences

Appeals against Unduly Lenient Sentences

Updated 11/08/08

Introduction

The 28 day time limit is absolute. There is no power at all to extend it or to apply for leave to refer out of time. Every CCP is required by the Director to take personal responsibility for ensuring that all unduly lenient sentencing (ULS) submissions made by their Area are of the highest quality and submitted to the Unduly Lenient Sentence Unit, Special Crime Division expeditiously (ULS Unit, Special Crime Division, CPS Headquarters, 50 Ludgate Hill, London, EC4M 7EX DX 300850 Ludgate EC4).

Power to Refer

Sections 35 and 36 Criminal Justice Act 1988 (the Act) (Archbold 2006, 7-366 et seq) empower the Law Officers to apply to the Court of Appeal for leave to refer for review any sentence which:

  • appears to be unduly lenient
  • was passed on an offender for a relevant offence
  • was passed in the Crown court (whether following committal to the Crown Court for sentence after a trial or plea at the magistrates court or committal from a Youth Court)

See Statutory Instrument 2006 No. 1116 for a list of relevant offences.

The ULS regime applies only to sentences that are unduly lenient and not to sentences that are simply lenient.

Meaning of Unduly Lenient Sentence

where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate. In that connection, regard must of course be had to reported cases and in particular to the guidance given by this Court from time to time in the so-called guideline cases. AGs Ref No 4 of 1989 11 Cr App R(S) 517 per Lord Lane CJ.

It must be shown that there was some error of principle in the judges sentence; that in the absence of the sentence being altered by the Court, public confidence would be damaged; and the Court should only grant leave in exceptional circumstances, and not in borderline cases. AGs Ref No 5 of 1989 11 Cr App R(S) 489 per Lord Lane CJ.  

It includes where the judge erred in law as to his powers of sentencing or where he failed to impose a sentence required by section 51 Firearms Act 1968 (minimum sentence for certain offences), sections 110(2) (minimum of seven years for third, Class A drug trafficking offence) or 111(2) (minimum of three years for third domestic burglary) Powers of Criminal Courts (Sentencing) Act 2000, or sections 225 to 228 Criminal Justice Act 2003 (dangerous offenders). (See section 36(2) Criminal Justice Act 1998. )

Section 109 PCC(S)A (life sentence for second serious offence) has now been repealed but offences committed before 4th April 2005 can still be referred even if the date of sentence is after that date (see Schedule 32 paragraph 46 Criminal Justice Act 2003 and The Criminal Justice Act 2003 (Commencement No.8 and Transitional and Saving Provisions) Order 2005 (S1 2005 No 950) Schedule 2, paragraph 6(a)).

Multiple Sentences

The effect of s36(3) combined with s10 of the Criminal Appeal Act 1968 (Archbold 2006, 7-123) is that if an offender has been sentenced for two or more matters, the sentences are to be treated as having been passed in the same proceedings if either they are passed on the same day, or they are passed on different days but the court in passing them states that it is treating them as one sentence.

The effect of this is that, where an offender has been sentenced for one offence in respect of which a referral is permissible and for a second in respect of which a referral could not otherwise be made, the Attorney may nonetheless refer the sentencing for both matters to the Court of Appeal and the court may consequently increase the sentence for both, provided that the sentences were either passed on the same day or the sentencing court stated it was treating them both as one sentence. Once there is a qualifying offence, all sentences passed in the same proceedings can be referred.

Deferred Sentences

It is at the moment of deferment that consideration should be given to seeking a reference of the sentence and not at the end of the deferment period when a sentence is finally imposed.

Double Jeopardy

When assessing the likelihood of the sentence being increased, account should be taken of what the Court of Appeal has called the double jeopardy discount. This is the reduction in sentence the Court may make for the fact that an offender is being sentenced a second time.

However, where a reference relates to an order under subsection (2) of section 269 CJA 2003 (determination of minimum term in relation to mandatory life sentence) the Court of Appeal shall not, in deciding what order under than section is appropriate for the case, make any allowance for the fact that the person to whom it relates is being sentenced for a second time.

Advice to AGO from the prosecuting advocate should cover an assessment of the double jeopardy discount

28 Day Slip Rule

The ULS regime should not normally be used when it is more appropriate to apply the 28 day slip rule to correct an error in sentencing, for example, when a mandatory order has been omitted. In exceptional circumstances where Areas would seek to use the ULS regime, contact should be made at an early stage with the ULS Unit and the AGO.

Timeliness

The 28 day time limit in which to lodge an application for a reference is absolute and is calculated from the day following the sentence so it will fall on the same day of the week, four weeks later. Where there is likely to be a late submission the ULS Unit and AGO should be contacted at the earliest opportunity.

How Referrals Arise

Unduly lenient sentence referrals can arise in a number of ways. Areas may consider the sentence unduly lenient, interested parties may contact the CPS or media coverage may alert the Area to consider the case.

If, after contact from an interested party, the CPS does not consider the sentence to be unduly lenient, the party should be told immediately that they can complain direct to the AGO. The 28 day time limit must be emphasised and, clearly, all CPS actions must be taken expeditiously.

The AGO may also be contacted directly, without recourse to the CPS or it may respond to media coverage. In both cases, the AGO will request papers from the Area.

Procedure

In AG Ref No.14 of 2003(R v Sheppard) TLR 18 April 2003 it was said that two of the safeguards built into the legislation were that the AG should personally consider the matter and decide for himself whether to seek leave, and that he had a discretion; where, therefore, his discretion had been exercised on a false basis, not having been put properly in the picture as to the nature of the case, leave would be refused.

If the case is suitable for a referral 2 copies of the full report should be submitted to the ULS Unit, Special Crime Division.

If the case has missed the time limit, or is not referable - a short note should be submitted to the AGO only, which provides sufficient information for a letter to be drafted by the AGO to the interested party.

If the sentence is not considered to be lenient but there is pressure to refer for other reasons - an abridged report setting out the facts of the case, offences and sentence, relevant mitigating/aggravating factors and trial counsels assessment of the sentence may be sufficient, subject to discussions with Special Crime Division and the AGO.

A full report will require 2 sets of papers to be provided to the ULS Unit, Special Crime Division no later than 10 days after the sentence.

Required documentation:

  • Indictment/s
  • TICs
  • Pre-trial summaries (counsel)
  • Statements (if necessary)
  • Exhibits (if necessary)
  • Victims personal statements
  • Transcript of any chambers discussions
  • Plea and sentence document (05/07)
  • Transcript of prosecution opening (pleas only)
  • Transcript of summing up if relevant
  • Antecedents
  • Pre-sentence/psychiatric/ medical reports
  • Texts
  • Character references
  • Transcript of mitigation
  • Other mitigation
  • Period spent in custody
  • Sentencing remarks
  • Prosecution counsels or HCAs advice
  • Complaints received regarding sentence
  • Details of media coverage
  • Any other relevant material

Rules of Court require the written reference, signed personally by the Law Officer, to contain specific information about the case. The CPS case papers must therefore include all these details in a clearly accessible and accurate form. The information must include, the name of the offender, offence, date of conviction, sentence, date of sentence, details of defence solicitors, Crown Court and judge.

Indictments and TICs

A copy of all indictments and allegations before the court should be included, not just those for which a review of the sentence is being considered. This must include any offences committed to the Crown Court under Section 41 Criminal Justice Act 1988 and any TICs. It should be made clear if the offender accepted any of the counts as specimen counts.

Case Summaries

Summaries prepared before trial may not be an accurate reflection of the trial. Any deviation from the original summary must be set out in prosecuting counsels advice.

Statements and Exhibits

In cases with numerous statements and exhibits it is preferable to rely on a comprehensive case summary. Areas should liaise with SCD and AGO on a case by case basis.

Discussion in Chambers Relating to Plea or Sentence

A transcript of any such discussion must be provided. If, in contravention of Court of Appeal guidance, no short-hand note was kept, the prosecuting advocate should provide a comprehensive and accurate note of the discussions and give an explanation of the circumstances of the discussions.

Sentence Indications

Where it applies, the prosecution advocate or the HCA should have reminded the judge that the position of the Attorney General to refer any sentencing decision as unduly lenient was unaffected. In any event, the prosecution advocate should not have said anything which might have created the impression that the sentence indication had the support or approval of the Crown. (Attorney Generals Guidelines on the Acceptance of Pleas and the Prosecutors Role in the Sentencing Exercise. See also Goodyear [2005] 3 All ER. 117, CA)

Plea and Sentence Document (Issued by AG on 05/07)

The completed form should always be included with the papers where relevant.

Transcripts

If any of the relevant transcripts are not available, the prosecuting advocate should supply written notes of what was said, relevant to sentencing.

Pre-Sentence and Other Reports

A procedure has been agreed between the CPS and the Department of Constitutional Affairs whereby the CPS is provided with copies of the reports, which of course are sensitive and confidential. The CCP should write to the relevant Crown Court Administrator requesting the reports. The reports should only be used for the ULS procedure and should be destroyed at the conclusion of the case.

If written material submitted in mitigation is not available from the Crown Court it will not normally be appropriate to approach the offenders solicitors for a copy. A written summary of what is known of the material should be included in the papers. If an application to refer the sentence is made, the AGO will write to the offenders solicitors inviting them to make the outstanding material available.

Mitigation

The papers should reflect everything submitted in mitigation. If counsel is not at court during sentence it is important that the CPS representative makes an accurate note.

Prosecution Advocates or HCAs Advice

Counsel or the HCA should draft an advice in accordance with the template provided to CCPs on 24th November 2005.

Text Handling

The trial unit head is responsible for notifying the CCP of the existence and nature of any text, including third party texts and any other relevant, sensitive information given to the judge, which does not appear on the face of the text. This must be done before the decision is made to submit papers.

In cases in which there is a text the Area must alert the ULS Unit, Special Crime Division and the AGO to its existence and ensure that the text is faxed by the police on the Brent fax (a secure line). The ULS Unit will provide the text to Treasury Counsel. The text will be destroyed when the case is concluded.

No mention of a text should be made in writing in the submission. If the advice of prosecution counsel refers to the text the Area should liaise with the ULS Unit as to how the papers are to be delivered.

Area Comments

The CCP or a prosecutor with the CCPs authority should indicate that prosecuting counsels or the HCAs advice and the papers have been considered and the views are endorsed.

Treasury counsel will be instructed by the ULS Unit to advise and draft a reference. The Unit will also be responsible for the payment of Treasury Counsels fees.

Role of the AGO

The AGO is responsible for lodging the application and reference. They will also notify the Law Officers decision to the CPS and to the other interested parties, including the offenders solicitors.

The Law Officers have a discretion to withdraw cases when new information comes to light and are responsible for doing so and notifying interested parties.

Once the application has been lodged the ULS Unit will be responsible for responding to any requests for additional information and Area will be responsible for keeping interested parties locally advised.

The victim or family of the victim may attend the hearing and a representative of the ULS Unit, AGO or counsel will provide them with assistance. It will not be necessary for an Area representative to attend the hearing. The Unit will provide the result of the hearing to the Area at the completion of the case.

Responding to Interested Parties

When the CPS decide not to refer a case after a complaint about the sentence, care should be taken in responding and time will be of the essence. If the matter is referable the interested party should immediately be told they can contact the AGO direct and the 28 day time limit must be emphasised.

The response should not assert that the sentence is not regarded as being unduly lenient since that is for the Law Officers to decide and may be seen to fetter the Law Officers discretion. The response should simply say that the CPS has decided that the case does not warrant being submitted to the Attorney with a view to a reference.

When the CPS receives a complaint and decides to submit papers to the Law Officers, the CPS may wish to send a holding reply (which avoids comment on the merits of the sentence) and the AGO will send a substantive reply once a Law Officer has taken a decision on whether to refer.

Handling Media Enquiries

Area Press and Publicity Officers will handle local queries. HQ Press Office must be notified of any case in which media enquiries are raised and be kept informed by the Area. Once the AGO are involved, their press officer will deal in liaison with HQ press office.