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 Powers of the courts - appeals against sentences 
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Appeals against sentences

Court of Appeal guidelines

The Court of Appeal is the final court of appeal against harsh or unduly lenient sentences and from time to time gives guidelines on sentences.


The Court of Appeal will not normally interfere unless the sentence was wrong in law, was wrong in principle or was manifestly excessive or unduly lenient.


This leaves the vast majority of sentences without review, a sentence may be lenient or harsh but not sufficiently so to warrant the CofA to intervene.  Arguably this means that not all convicts are treated with the same rigour of the law, although many believe that the majority of sentences are undeniably correct.


Prosecution appeal

The Attorney General can refer unduly lenient sentences passed for some either-way and all indictable offences under sections 35 and 36 of the Criminal Justice Act 1988 to the Court of Appeal, with the leave of that Court, where he considers that a sentence imposed in the Crown Court was unduly lenient.


The Criminal Justice Act 1988 (Reviews of Sentencing) Order 2003 extends the range of offences where the Attorney General can use his powers:

Racially or religiously aggravated assaults;

Racially or religiously aggravated criminal damage;

Racially or religiously aggravated public order offences;

Racially or religiously aggravated harassment.

The Criminal Justice Act 1988 (Reviews of Sentencing) Order 2006 further extends the list to include:

Making threats to kill;
Cruelty to a child;
Certain serious and complex frauds;
Certain sexual offences;
Certain offences in relation to the illegal importation of controlled drugs or indecent material;
The production, supply or possession with intent to supply of controlled drugs or the cultivation of cannabis;
The racially or religiously aggravated form of the following offences: assaults, criminal damage, public order offences or aggravated harassment.

Who can ask the Attorney General to consider referring a sentence to the Court of Appeal?

Requests to consider referring a sentence can come from:

  • the prosecuting authority;

  • the victim or victim's family;

  • MPS;

  • Peers;

  • pressure groups;

  • members of the public

The Law Officers will consider all requests where a sentence can be referred, provided they are received within time.


What is the procedure for making a request to the Attorney General to consider referring a sentence?

There is a strict time limit of 28 days from the date of sentence for the Attorney General to apply to the Court of Appeal to refer a sentence.


There is no power to extend the 28-day period. The request can either be made to the prosecuting authority that brought the case or directly to the Attorney's office.


When will a sentence be considered unduly lenient?

The Court of Appeal has said that a sentence is unduly lenient where "it 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 number 4 of 1989 (1990))


Therefore in order for the Attorney to refer it to the Court of Appeal it must be not just low but "manifestly not sufficiently severe" (Attorney General's Reference numbers 31, 45, 43, 42, 50 and 51 of 2003 [2004]).


Even then, the Court has a wide discretion as to whether or not to interfere in such cases. Where the Court does consider that a sentence was unduly lenient, they will not replace the sentence with that which they considered should have been passed at first instance.


This is because the Court takes into account the fact that the offender has been put through the sentencing process a second time and gives a discount for this element of "double jeopardy".

This means that it is only where the sentence passed is significantly below the sentence any' Judge could have passed that the Court of Appeal will interfere.


Defence appeal

The defence may appeal against a sentence which is considered too harsh, naturally defendants never appeal against an unduly lenient sentence.


The Court of Appeal will only interfere if the sentence is outside a range of acceptable sentencing.


Contrary to popular belief the Court of Appeal has no power to increase sentences on appeal, but can effectively add a period if the appeal is without merit.


R (Clift) v Secretary of State for the Home Department [2006] HL

[Sentencing -  different treatment for prisoners to be deported is not lawful]

The House of Lords considered the role of the Home Secretary in sentencing in conjoined appeals.  The role of the Home Secretary has been progressively reduced.


Held: The Home Secretary’s power to confirm (or not) the parole board's decision to release on licence long-term prisoners subject to deportation  was discriminatory and contravened the The European Convention on Human Rights.


R v Secretary of State for the Home Department Ex parte Hindley (2000) HL


Whole case here

[Sentencing - life imprisonment – Murder – Myra Hindley]

H, convicted of a series of child murders, appealed against the dismissal of her application for judicial review of a decision taken by the Home Secretary in 1990 that she should serve a whole life sentence, subsequently re-affirmed in 1997.


H contended that under the Murder (Abolition of Death Penalty Act) 1965 it was intended that a prisoner would be released after a finite period of imprisonment, that the policy currently practiced in relation to whole life tariffs was Wednesbury unreasonable and that a whole life sentence amounted to an unlawful increase of the tariff imposed in 1985.


The court held that there was nothing unlawful in requiring detention of a prisoner until death where the crime committed was so wicked, that the Home Secretary's continued willingness to reconsider his decision meant that his discretion had not been unlawfully fettered and that the 1985 decision had been provisional.


Appeal dismissed

Appeals with no merit

If a defendant appeals against sentence and / or conviction and his appeal has no merit he can (in custodial cases) effectively be given extra time to serve, this would typically be 28 days on a 2 year sentence (section 29 of the Criminal Appeal Act 1968).


The appeal is first heard before a single judge and if the single judge rejects the appeal and the defendant persists then the 'extra' time can be added.  (What actually happens is, a period is not counted as having been served).


Some useful examples are to be found in the case of  R v Hart (2006) CA

Trago Mills, civil action for shoplifters

[Sentencing – shoplifting – contributions to security costs]

Trago Mills, who own a chain of superstores in the West Country, operate a civil recovery scheme under which shoplifters are forced to pay £80 towards the cost of catching their fellow thieves.   It has been shown that the threat of a large bill is a greater deterrent than a small fine and a criminal conviction.


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