Unduly lenient sentences: to be extended to lesser offences?

The 2015 Conservative Party manifesto contained a commitment “to tackle those cases where judges get it wrong, we will extend the scope of the unduly lenient scheme, so a wider range of sentences can be challenged”. In September 2015, the Attorney General, Jeremy Wright, stated “I am very much in favour of looking at an extension of the scheme…..and will do it as soon as I can”.

The law at present

Under sections 35 and 36 of the Criminal Justice Act 1988, the Attorney General can apply to the Court of Appeal to review sentence passed in the Crown Court in respect of certain serious offences which appears to be unduly lenient. Anyone has the right to request the Attorney to consider whether a case should be referred. As the government’s Complain about a low Crown Court sentence website makes clear, “anyone can ask – they don’t have to be involved in the case. Only one person need to ask for a sentence to be reviewed”.

Current safeguards

That a sentence passed by a judge can later be increased is a draconian measure, leaving defendants in a state of considerable uncertainty. Perhaps the most high profile recent example was the Court of Appeal doubling the 15 month sentence handed down to the former TV presenter Stuart Hall for a number of indecent assault charges.

The most significant safeguard is that the Attorney General must give consent for the matter to be referred to the Court Appeal, enabling complaints against reasonable sentences to be filtered out. The sentence of five years and nine months handed down to another former TV presenter, Rolf Harris, was not referred to the Court of Appeal despite 150 complaints.

Any appeal must be unduly lenient, and not simply lenient. A sentence was described as being unduly lenient in Attorney General’s Reference No 4 of 1989 11 Cr App R (S) 517: “where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate”.

This was expanded upon in the Attorney General’s Reference No 5 of 1989 11 Cr App R (S) 489, where there must be an error of principle in the judge’s sentence that, in the absence of the sentence being altered by the court, would damage public confidence. The test was an exceptional circumstance, rather than a borderline case. This would include cases where sentences passed were wrong in law, for example when a sentence was passed below the minimum required by a particular law.

Use of the power

Recent statistics on the extent of unduly lenient sentence referrals were published in the recent Review of unduly lenient sentences. The review revealed that in 2014, the Law Officers considered a total of 469 cases, of which 128 were referred to the Court of Appeal. Of those referred, 86% had their sentences increased. Over the past five years, the referrals have ranged from 80 to 120 per year, with between 70 and 85% resulting in a sentencing increase.

The Solicitor General, Robert Buckland, has stated that “criminals operating in London have had an extra 215 years added to their sentences since 2010 because of this scheme”.


Criticism can be made of the general provisions for appealing unduly lenient sentences. Although judges do get it wrong from time to time, any sentence is passed by a qualified and suitably experienced impartial individual with full knowledge of the facts, having heard all the evidence in the case. There is a concern when a reconsideration can be requested by an individual whose sole knowledge of the case is a report read in a newspaper, and the person deciding upon the referral is an elected official. This problem is of course exacerbated by the ability of an individual to pay to be represented in the process.

The Attorney is of course an important safeguard in excluding those cases not deemed to be unduly lenient. However, any expansion of the offences that can be considered must consequently result in an expansion of the number of cases considered by the law officers (469 from last year). Any increase will have resource implications for the Law Officers. Certainly, any expansion in the number of cases being considered by the Attorney should not correspond to an increase in the time taken for defendants to know the final outcome.

Finally, at present only the most serious crimes can be referred, and the Court of Appeal is asked to determine whether an existing prison sentence should be increased. Should lesser offences be considered for review, the Court of Appeal may be faced with deciding whether an individual sentenced to a community or suspended sentence should actually serve a period in custody. This development is fraught with problems, not least the uncertainty faced by an individual given a non-custodial sentence.

The Attorney has stated “it is better to make sure we have……worked through all the consequences before we bring something forward”. One would hope all of the above points will be clearly addressed.

Practical Law David Bacon

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