Guardians of the public interest
Solicitor General Edward Garnier QC MP discusses the role of the Law Officers in referring a sentence which is considered to be unduly lenient to the Court of Appeal 

The Law Officers (the Attorney General, Dominic Grieve QC MP, and I) have a wide variety of powers, from assisting charities to prosecuting the media for contempt, but none is more high profile than the power under the Criminal Justice Act 1988 to refer a case to the Court of Appeal where the sentence is considered to be unduly lenient.
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Counsel Magazine
The test for referral

In broad terms, the test is whether a sentence falls outside the range that a judge, taking into account any relevant sentencing guidance and all other appropriate considerations, could reasonably impose. Just because a sentence may be lenient does not give grounds for challenge – it must be unduly so.

There is usually media coverage, particularly in the locality of the crime, when we are called upon to look at a high profile case, more when it is referred to the Court of Appeal for its consideration, and even more if we decide not to refer. Although we are aware of public sentiment, we cannot allow ourselves to be driven by it, even when a tabloid campaign is in full flow. We are limited in what we can do by the law and it is our duty to respect those limits.

Whilst it may seem that those cases which hit the papers are examined, in most weeks one or two sentences go to the Court of Appeal which haven’t made headlines; smaller stories but hugely important to those involved.

The statistics

The Attorney General and I have been in office only eight months but what do the past statistics tell us? From 2001 to 2009, 723 offenders had their sentences increased. Previous Law Officers have been asked to examine as many as 420 offenders’ sentences in one single year – although usually the figure is much lower. On average well under half of those offenders drawn to our attention will have their sentences referred to the Court of Appeal. That figure needs to be compared to the 80,000-plus sentences passed in the Crown Court each year and puts in perspective concerns about the abilities of judges to sentence defendants appropriately. The media has on occasions tried to pick out judges for criticism but most of it is unfair and unjustified.

The law and the courts recognise – and as a Crown Court Recorder myself I am only too aware – that sentencing is perhaps the most difficult part of a Crown Court judge’s work. But even if the Law Officers are only requested to examine a tiny fraction of the sentences passed each year, it is right that there is a means by which anyone, especially victims or their families, can have apparently lenient sentences re-examined.

The constraints

The majority of referrals come to us from the Crown Prosecution Service (“CPS”) area in which the prosecution took place. The CPS lawyers are usually well placed to assess whether the sentence in a given case was out of line, but it is open to any individual or organisation including charities, pressure groups and MPs, to bring a sentence which troubles them to our attention.

If there is a perception that the Law Officers will refer a sentence to the court once a critical mass of requests is reached, it is an erroneous one. Only those crimes specified by the Criminal Justice Act 1988 are eligible for sentence review. Rape and murder are obvious examples, but the scheme includes all crimes triable only in the Crown Court with certain specific “either way” offences sentenced in the Crown Court.

We also keep an eye on cases ourselves and it is not unheard of to ask for the case papers simultaneously to a request from a member of the public. We are concerned with the law and practice of sentencing, not with the numbers complaining so only one letter could suffice to start the process.

There is another important constraint bearing upon us: the sentence must be referred to us within 28 days of being imposed in the Crown Court. This time limit is set by statute and we have no discretion to extend it.

Sentencing policy is for the Ministry of Justice, but the Law Officers’ role, although limited to examining unduly lenient sentences, means that we have to engage in a complex consideration of the defendant’s previous offending, case law, the impact of the offence on the victim and the prospects of rehabilitation for the offender.

We publish the number of sentences we do or do not refer to the Court of Appeal but we deliberately do not set targets. We assess each case on its merits and so does the Court of Appeal, which may find a sentence unduly lenient but decide that it is not appropriate to alter it – perhaps because of developments since the sentence was passed, such as where an offender has shown good progress in complying with a community based penalty and it is believed that this would be disrupted by placing them in custody at this stage.

Sometimes the court can issue new guidance for sentencing particular types of offence. For example, the last Attorney General, Baroness Scotland QC, referred two cases to the Court of Appeal in December 2009 after which the court stated stricter penalties should be applied to so-called “one punch manslaughter” in cases of manslaughter where death was a result of unlawful violence.

The process

The clock starts ticking as soon as a sentence is passed and frequently a good deal of work is done by the CPS area before the case reaches us.

The Attorney General’s Office has fewer than 50 staff but within that number are some highly experienced lawyers with prosecution experience with the right knowledge and expertise to offer the Law Officers advice and recommendations on whether a sentence under consideration is in law unduly lenient.

The CPS papers provide a full summary of the case, the sentences handed down, a transcript of the sentencing remarks, a victim impact statement and some analysis from prosecution counsel. Experienced Treasury counsel – not involved in the case – are also usually instructed to provide the Law Officers with advice.

We inform ourselves of all the factors to be taken into account in assessing the sentence, the aggravating features and those relied on in mitigation and try to consider the sentencing exercise afresh with reference to case law and any similar sentences.

No one other than the Attorney General and I have the authority to refer an unduly lenient setence case to the Court of Appeal. Our office and the CPS keep families informed of the date of the Court of Appeal hearing so they can attend if they wish. The cases rarely take more than an hour or so. Treasury Counsel present the case but the Law Officers – other duties permitting – can appear in person as I did on 21 October. It is the duty of counsel to explain the procedure to the victim or family at the hearing, provide reassurance and, when appropriate, explain why the sentence was not increased.

Beyond that, it is my practice, as it is with the current Attorney General – and has been with the previous Law Officers – to write to victims, family members or other interested parties if we decide we cannot refer a sentence to the Court of Appeal.

We never forget that all crimes of this kind mean that somewhere there is a victim, a grieving family or a damaged individual.

Edward Garnier QC MP is the Solicitor General

case studies: sentence reviews

Case study one: referred

In September 2010 the human trafficking case of Vasile Oaches and Vasile Maris (pictured) was heard by Lord Justice Hooper. The offenders had lured a 19-year-old Romanian woman to the UK with the prospect of a decent job. Once here she was required to work as a street prostitute and the offenders took her earnings.

On behalf of the Attorney General, Edward Brown QC asked the court to look at the total sentence and the total criminality involved, a continuing criminal enterprise which, although it included different activities at different stages, began by the victim being deceived in Romania and ended by her being coerced into prostitution in the UK.

Both defendants had been convicted of trafficking into the UK for sexual exploitation and controlling prostitution for gain. The sentences for the former offence were increased from 30 months’ imprisonment (Oaches) and 24 months (Maris) to 4 years and 3 years respectively.

Case study two: not referred

In August the Attorney General decided not to refer the sentences imposed on young offenders Leon Elcock and Hamza Lyzai (pictured) for the manslaughter of Ekram Haque, who they attacked outside a mosque in Tooting, South London. The case was labelled a “happy slapping” incident. The victim died from head injuries sustained after falling from the attack. It was a shocking case, not least because it happened in front of the victim’s granddaughter and aroused a great deal of public feeling. The sentencing judge lifted the ban on naming the defendants in order to warn others.

Having pleaded guilty to manslaughter, Elcock and Lyzai had been given sentences of four and half years and three and a half years detention respectively. There was some media coverage, especially within London, suggesting that the sentences be reviewed and correspondence to the Attorney General’s Office.

The Attorney General received advice from Treasury Counsel who prosecuted the case as well as independent counsel as to whether any reference would increase the term, and taking into account all these views decided it was within the reasonable discretion of the judge to impose the sentences he did.

The family was kept informed of the decision and in a statement to the press, the Attorney General said that after looking at all the factors involved, he did not consider the terms to be unduly lenient and therefore concluded that the Court of Appeal would be highly unlikely to increase the sentences.