Unduly lenient sentences in England and Wales
One Person Can Ask For A Review And A Thousand Signatures Carry No Extra Votes.
A judge announces a prison term. Someone following the case thinks the sentence cannot possibly reflect the harm described in court. A petition starts circulating. In England and Wales there is a much more direct route for questioning certain Crown Court sentences. Any member of the public can ask the Attorney General's Office to examine an eligible sentence under the Unduly Lenient Sentence scheme. Only one request is needed.
An increase requires several further decisions. The sentence must fall within the scheme. A Law Officer must consider there is a proper basis for referring it. The Court of Appeal must grant permission and decide whether the original sentence was unduly lenient. Even a referral can end with the original sentence standing. The difference between each of these stages matters when a headline says a sentence is “under review”.
Who Can Ask And Which Cases Qualify?
Someone asking for a review need not be the victim, a relative, a witness or a lawyer. The ability of a stranger to raise a concern is a deliberate feature of the scheme. It also means the victim need not organise a campaign or undertake the burden of starting proceedings personally for an apparent sentencing error to receive attention.
The scheme covers certain serious offences sentenced in the Crown Court in England and Wales. Murder, rape and robbery are familiar examples. There are also specified offences that fall within the scheme through legislation. A Crown Court venue by itself is insufficient. Identifying the exact offence on which sentence was passed is more useful than relying on a newspaper's broad description of what the defendant did.
A jury might have heard several allegations and convicted on some while acquitting on others. The sentencing judge must proceed on the convictions and the proper factual basis of sentence. A person reading all the evidence in an extensive trial report can easily form a view of the whole story that includes material the court cannot treat as a proved offence. A review of the sentence cannot convert an acquittal on one count into punishment for that count.
For the same reason, this route does not answer a complaint about a charging decision or the way a police investigation was conducted. Those questions can be consequential without being sentencing questions. The first useful sentence of a request identifies the offender, the offence, the sentencing court and the date. It gives the reviewing office an actual decision it can locate and examine.
The Twenty-Eight-Day Deadline
The government's public service gives the deadline as 11.59pm on the twenty-eighth day after sentencing. Weekends and bank holidays count. It advises people to send the request as early as possible because the office needs time to examine the case. Waiting to see whether public concern gains momentum has a practical disadvantage. It uses up days that might be needed to obtain the sentencing material and consider a referral.
A person who has already seen an announcement that a case is being considered can check the list linked from the government's service. The official guidance asks people to avoid duplicating requests. One properly identified case can be considered regardless of whether a petition acquires a hundred signatures or a hundred thousand. Neither the number of forms received nor the volume of a social media argument changes the statutory test.
Timing also explains why the word appeal can cause confusion. A defendant considering a challenge to conviction or sentence has a different procedure. A member of the public using the unduly lenient scheme is asking a Law Officer to make a decision. The public applicant cannot personally put on a gown, take over the prosecution or demand a hearing before the Court of Appeal by paying a fee.
How Low Is Unduly Low?
Sentencing allows judges a range of lawful judgement. An appellate judge might have given a longer term if responsible for the original hearing. That difference alone does not establish undue leniency. The question is whether the sentence fell outside what the sentencing judge could reasonably impose in the circumstances. A relevant error of principle can supply a reason, as can a sentence outside the permissible range.
Imagine a guideline covering a broad category of cases. Two defendants could fall within the same category while differing in culpability, harm or significant mitigation. Selecting a term below a commentator's preferred figure may be an entirely legitimate exercise of discretion. A case in which a judge used powers the law did not give them, or proceeded on a materially incorrect understanding of the guideline, raises a different issue.
The starting point in a guideline is particularly vulnerable to misunderstanding. It is a place from which a judge works, applying the relevant facts and the remaining steps in the sentencing exercise. It does not become an automatic minimum because an infographic has printed it in bold. Nor does the highest available statutory penalty establish the ordinary sentence for every instance of the offence.
Multiple counts create another recurring difficulty. Some sentences run concurrently and others consecutively, subject to the overall assessment of totality. Adding every individual term can give a headline number the court never imposed. Conversely, reporting only the term on one count can obscure the effect of the others. A fair review starts by working out what the whole order actually does.
Which Documents Change The Picture?
Sentencing remarks are valuable because they identify the judge's reasoning in the particular case. A reader can often see which facts were accepted, how offences were grouped and what account was taken of mitigation. A short report may accurately state the term of imprisonment while having room for only one of several reasons the court gave. The omitted reasoning is precisely what a legal review needs.
The difference between a headline sentence and release arrangements is also important. Release may depend on the offence, the sentence type, legislation and individual circumstances. A reader alarmed by a calculation about potential time spent in custody may be objecting to a statutory release rule. A referral examines the sentence imposed in the court's legal framework. It cannot rewrite that framework to produce a preferred release date.
Consider two ways to describe the same concern. “This person deserves more” expresses a judgement about punishment. “The judge appears to have treated two separate episodes as a single incident when assessing the total term” identifies a proposition that can be checked against the remarks and the record. The second can turn out to be wrong. Its advantage is that somebody can explain why.
There is no need for a member of the public to invent a legal argument or claim access to material they have never seen. The office can assess a clearly identified concern against the proper papers. An accurate short description of what seems wrong is more useful than attributing concealed motives to the judge or restating allegations as facts after a jury has rejected them.
Who Can Change The Sentence?
Section 36 of the Criminal Justice Act 1988 supplies the statutory route. The Attorney General, acting through the Law Officers' functions, can refer an eligible sentence with the leave of the Court of Appeal. A minister announcing that a case is being examined has not personally increased a prisoner's term. The distinction protects the court's role even where political or public interest is intense.
The Court of Appeal can decline to hear the case, leave the sentence unchanged or increase it where the legal requirements are met. The matter concerns sentencing for the offence already established. It is no opportunity to reopen the trial so that disappointed observers can introduce a new allegation or ask fresh jurors to decide guilt again. A report that describes a referral as a second prosecution is describing the wrong process.
Imagine three items appearing on successive days. The first says the office has received requests. The second says a Law Officer has referred the case. The third gives the ruling of the Court of Appeal. Only the last can report an increased sentence. Until then it is possible to explain the public concern, identify the potential issue and say exactly what decision remains outstanding. The most important words in the story may be who has acted and what that person has power to do.
