|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.
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
Racially or religiously aggravated harassment.
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 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
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
When will a sentence be considered unduly
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
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
The defence may appeal against a sentence which is
considered too harsh, naturally defendants never appeal against an unduly
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  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
R v Secretary of State for the Home Department Ex parte
Hindley (2000) HL
[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.
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
Some useful examples are to be found in the case of
R v Hart
Trago Mills, civil action for shoplifters
[Sentencing – shoplifting – contributions to security
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.