Unduly Lenient Sentence
Once a sentencing exercise has been concluded, that is not necessarily the end of matters. If the sentence is particularly low it can be referred to the Court of Appeal.
On 27th October 2023, Adil Iqbal was before the Court of Appeal having previously received a sentence of 12 years for Causing Death by Dangerous Driving. Following a change in legislation, the maximum sentence for the offence was increased to life imprisonment.
https://www.theguardian.com/uk-news/2023/oct/13/man-killed-pregnant-woman-m66-crash-jail-term-increased-adil-iqbal
A sentence can be referred to the Court of Appeal by the Attorney General’s Officer where it is considered that the case is unduly lenient. A review will be carried out by the Law Officers and if they consider the sentence appears unduly lenient, they can ask the Court of Appeal to review the sentence.
What are the Criteria?
In order to be referred, the sentence must meet the following three criteria as set out in Sections 35 and 36 of the Criminal Justice Act 1988:
- Is passed in respect of an offence within the unduly lenient sentence scheme,
- Is referred within 28 days of sentence being passed, and
- Appears to be unduly lenient.
In order to be referred, the offence must either be indictable only or they must be included by way of reference in other legislation. It is important to note that if one offence for which an offender is sentenced is eligible for referral, the entire sentencing exercise can be referred. There are a number of offences which are eligible, these include:
- Terrorism offences;
- Serious sexual offences;
- Sexual offences relating to children and vulnerable people.
A referral to the Court of Appeal must be made within 28 days of the date of sentence (Paragraph 1, Schedule 3 Criminal Justice Act 1988). The 28-day time limit is absolute. There is no power to extend the time limit or to apply for leave to refer out-of-time. The period is calculated using calendar days, not business days. It runs from the day following the sentence, so it will end on the same day of the week, four weeks later.
What does Unduly Lenient mean?
A sentence is considered to be unduly lenient where the sentence falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate (Attorney General's Reference No 4 of 1989 [1990] 1 WLR 41, Lord Lane CJ). This could be equated to the concept of unreasonableness in matters of judicial review.
It has also been held that the scheme is designed to tackle where there is a “gross error” or public confidence will be undermined if the sentence is not referred to the Court of Appeal.
What can the Court of Appeal do?
If the Court of Appeal rules that the sentence is not unduly lenient, then it will refuse the Law Officer’s application for leave to refer the sentence and the matter will be at an end. This will be done at an oral hearing and it is important to ensure legal representation is in place.
However, if the Court of Appeal finds that the sentence is unduly lenient, leave to refer will be granted. finds the sentence is unduly lenient, it will grant leave to refer the sentence. However, “even where [the court] considers that the sentence was unduly lenient, this court has a discretion as to whether to exercise its powers. to others for whose well-being the court ought to be concerned”: Attorney General's Reference No 4 of 1989 [1990] 1 WLR 41.
In deciding whether a sentence is unduly lenient or not, the Court of Appeal may only consider the material which was before the sentencing judge.
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