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Unduly Lenient Sentences

Updated 9 March 2021: Revised 18 September 2023|Legal Guidance

Introduction

The Unduly Lenient Sentence (ULS) scheme allows anyone to ask for certain Crown Court sentences to be reviewed by the Attorney General’s Office (AGO) if they think the sentence is too lenient. The review is ultimately conducted by the Law Officers (Attorney General or Solicitor General) and if they consider the sentence appears unduly lenient, they can ask the Court of Appeal to review the sentence.

This prosecution guidance sets out the CPS role and responsibilities in respect of unduly lenient sentences. A CPS Area is responsible for preparing an initial report for the Law Officers, which is approved by a CCP or DCCP. It is then submitted to the CPS Appeals and Review Unit (ARU), to take forward the referral to the AGO.

The terms “referral” and “reference” in this guidance are used to indicate, respectively, a request to the AGO to review the sentence, and a reference to the Court of Appeal for the court to review the sentence.

Requests by members of the public to the AGO for review should be sent to ULS.Referrals@attorneygeneral.gov.uk.

Power to refer

Sections 35 and 36 of the Criminal Justice Act 1988 empower the Law Officers, who must personally make the decision, to apply to the Court of Appeal for leave to refer for review any sentence which:

  • is passed in respect of an offence within the unduly lenient sentence scheme,
  • is referred within 28 days of sentence being passed, and
  • appears to be unduly lenient.

Each of these criteria will be considered in turn.

Offences within the scheme

Only sentences passed in the Crown Court in respect of (1) offences triable only on indictment, or (2) those offences added to the scheme by subsequent order, may be referred to the Court of Appeal. See Annex A for further detail.

If the offender is sentenced for an offence which is within the scheme, then all of the sentences imposed on the offender, including for offences not within the scheme, can be reviewed by the Court of Appeal: Clews [2019] EWCA Crim 769. This applies to sentences imposed on the same day or sentences imposed on different days if the court in passing them states that it is treating them as one sentence: section 36(3) of the Criminal Justice Act 1988 combined with section 10 of the Criminal Appeal Act 1968.

Timeliness

A referral to the Court of Appeal must be made within 28 days of the date of sentence (Paragraph 1, Schedule 3 Criminal Justice Act 1988). The 28-day time limit is absolute. There is no power to extend the time limit or to apply for leave to refer out-of-time.

The period is calculated using calendar days, not business days. It runs from the day following the sentence, so it will end on the same day of the week, four weeks later. The 28-day deadline may therefore fall on a non-working day, for instance over the Christmas or Easter period. The dates for submission of a report by the CPS, and when a Law Officer must make a decision, will therefore need to be brought forward.

If the decision to defer a sentence is considered to be unduly lenient, it is good practice to make the application when the sentence is deferred. However, the court does not lack jurisdiction to review a sentence imposed once the deferred period has expired in respect of an unduly lenient sentence then imposed: Ferreira [2021] EWCA Crim 537.

Meaning of 'Unduly Lenient'

The ULS regime applies only to sentences that are unduly lenient and not to sentences that are simply lenient. 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 No 4 of 1989 [1990] 1 WLR 41, Lord Lane CJ).

In Attorney General’s Reference Nos 3 and 5 of 1989 (1990) 90 Cr App R 358 the court agreed with submissions that to allow a reference there must have been some error of principle in the judge's sentence; that, in the absence of the sentence being altered by the court, public confidence would be damaged; and that the court should only grant leave in exceptional circumstances, and not in borderline cases.

In Edwards [2012] EWCA Crim 2746 the Court held that the scheme is designed to deal with cases where judges have fallen into gross error.

Errors of principle and gross errors

An error in applying the guidelines issued by the Sentencing Council may meet these criteria. For instance, mis-categorisation of the case, failing to adjust the sentence to reflect the balance of aggravating and mitigating factors (whether failing properly to take into account the former or attaching too great a weight to the latter), permitting too great a discount for a guilty plea or failing to reflect totality in sentence. The error must nonetheless be one of principle, not simply that there are grounds to say the judge could have or ought to have taken a different approach, but that they fell into error in the approach they took. The error must also be a gross one, and therefore not simply have materially affected the sentence, but taken it outside the range of reasonable sentences.

An error as to law may also meet these criteria. For instance, a failure to impose a minimum sentence or to apply another aspect of sentencing law. Again, the error must be one of principle, not simply something there are good grounds for saying the judge could have or ought to have done, but that they fell into error in their approach. Again, the error must be gross, and not simply materially affect the sentence but take it outside the range of reasonable sentences.

An error in the assessment of dangerousness, and therefore in either not imposing a life sentence, or an extended sentence, may meet the criteria. Again, an error of principle and a gross error should be demonstrated. The court will have due regard to the ability of the judge first-hand to assess the offender who appears before them and will not interfere with the judge’s determination unless it is satisfied that the judge failed to consider and address the relevant issues. See, for example, Habte [2020] EWCA Crim 1720, and also Valants [2021] EWCA Crim 1233 for the court’s acknowledgment that the court would be prepared to make a finding of dangerousness in an “obvious” case, notwithstanding proceedings in the court below.

The 56-day “slip rule”

This is a time limit as to when the hearing must take place as distinct from the 28-day limit to refer a case to the Court of Appeal. The ULS regime should not be used when it is more appropriate to apply the 56-day slip rule to correct an unlawful sentence, for example, when a mandatory order or sentence has not been imposed. The CPS may identify such cases in their report to the AGO and should seek a listing before the original judge within 28 days so that the Law Officers can be informed of the outcome of that hearing before making their decision. The AGO may also identify cases in which such a hearing may be appropriate and draw them to the attention of the CPS. In either case, a prompt listing and discussion of the way forward are important.

Discretion to interfere with sentence

If the court finds the sentence imposed is not unduly lenient, it will refuse the Law Officer leave to refer the sentence.

If the court finds the sentence is unduly lenient, it will grant leave to refer the sentence. However, “even where [the court] considers that the sentence was unduly lenient, this court has a discretion as to whether to exercise its powers. Without attempting an exhaustive definition of the circumstances in which this court might refuse to increase an unduly lenient sentence, we mention one obvious instance: where in the light of events since the trial it appears either that the sentence can be justified or that to increase it would be unfair to the offender or detrimental to others for whose well-being the court ought to be concerned”: Attorney General's Reference No 4 of 1989 [1990] 1 WLR 41.

The Court of Appeal no longer takes into account, as a matter of course, the fact that the offender is being re-sentenced for the purposes of assessing undue leniency or deciding whether or not to exercise the discretion (“double jeopardy”). In some rare cases however, this may be a relevant factor. For instance, where the Law Officers are taking a different approach to the prosecution it may sometimes be relevant depending on the extent of, and reasons for, the departure. In other cases, it may be linked to other factors, for instance the objectives of sentencing children and young people, or the prospect of placing an offender at liberty into custody.

In deciding whether a sentence is unduly lenient or not, the Court of Appeal may only consider the material which was before the sentencing judge. However, if the sentence is unduly lenient, the Court of Appeal may consider other material in determining whether to exercise its discretion to increase the sentence or not – whether that fresh material tends in favour of, or against, interfering with the sentence.

How Referrals Arise

Unduly lenient sentence referrals to the AGO can arise in a number of ways:

  • Areas may consider the sentence unduly lenient;
  • interested parties including victims or the bereaved may contact the CPS;
  • the Attorney General may also be contacted directly, by victims (or their family members), MPs, peers, pressure groups or members of the public. In those cases, the AGO will request papers from the CPS Area with casework responsibility for the case.

Upon receipt of a referral, the AGO will check whether the sentence includes an offence in the scheme, and whether the referral is within 28 days of sentence. If it is, the AGO will ask for a report from the CPS. The CPS should provide an abridged report if it considers the sentence is not potentially unduly lenient and a full report if the CPS agrees that the sentence is potentially unduly lenient. A CPS report template found at Annex B can be used for either an abridged or full report.

CPS Referral

A request to review an unduly lenient sentence from the CPS should be referred expeditiously. The AGO will likely seek Treasury Counsel’s advice and need sufficient time for that to be prepared and considered. A CPS referral should be received by the AGO no later than 10 calendar days after sentence.

If one offender is referred, the CPS and the AGO should consider the sentences imposed on all. A discussion may be necessary about the most proportionate way of doing so, for both abridged and full reports: there may be clear reasons why sentencing differed according to the offender, or there may be common considerations which apply across all. For a full report, the CPS will make it clear which offenders’ sentences it considers to be unduly lenient.

Where a victim or a member of the public raise concerns about a sentence with the CPS, rather than the AGO, the CPS should:

  • provide the AGO contact email address to raise those concerns with the AGO direct;
  • emphasise the time limit for doing so;
  • if possible, explain the CPS view of the sentence so the victim or member of the public can consider whether it merits contacting the AGO. The CPS will often be able to explain what happened at the sentencing hearing and the sentencing framework and can assist with the merits of referring.

The decision as to make a reference however is one for the Law Officers and the AGO therefore is the appropriate point of contact, not the CPS.

This includes the police or the prosecuting advocate if, after discussion as part of the prosecution team, there remains a difference of opinion about the sentence imposed. Ultimately it is a matter for the DCCP to decide on behalf of the CPS, provided the points above have been communicating to the police or the prosecuting advocate.

If there are likely to be difficulties with the CPS providing a full report within 10 calendar days of sentencing being passed, or an abridged report within the timescale provided by the AGO, the ULS Team in the Appeals and Review Unit in the Special Crime and Counter Terrorism Division and the Attorney General's Office (AGO) should be contacted at the earliest opportunity. Where possible the AGO will typically provide the CPS 7 calendar days to complete a report. Members of the public and victims sometimes refer matters to the AGO very close to the 28 day time limit and accordingly the timescales permitted for the CPS to prepare a report may be very tight.

Referral to the AGO

Alternatively, victims, their representatives, MPs or a member of the public may contact the AGO to make a referral.

Cases with reporting restrictions

In some cases, reporting restrictions mean that a sentence cannot be reported upon. For instance, where the defendant is tried and sentenced from some offences, but will go on to face trial for others. Or, where some offenders are sentenced but the trial of co-defendants is pending. The arrangement by which the CPS would automatically refer such cases to the AGO has ceased. Nonetheless it is important that careful consideration is given at the time of sentence – not waiting for subsequent trials – as to whether to refer the sentence to the AGO. When it becomes possible to report the sentence, the CPS may want to be clear that it considered the sentences imposed at the time because the time limit for any referral will since have lapsed.

Required documentation

A template for both an abridged and full report can be found at Annex B. The following information should be included:

  • Indictment(s)
  • Prosecution counsel’s advice on sentencing
  • Prosecution sentencing note
  • Antecedents
  • Victim personal statement(s)
  • Offender character references
  • Pre-sentence report(s)
  • Basis of plea
  • Sentencing remarks/Sentencing transcript (if available)
  • Other relevant documents

The report should also indicate if there is further relevant material which needs to be considered by the AGO (but which should not be detailed in the report) – this would include a “text” or an agreement pursuant to section 74 Sentencing Act 2020 or any other material that has a bearing on the sentence and was seen by the judge – (see Annex D below for handling and security issues).

The report must also include details of issues or difficulties with the conduct of the case in the Crown Court that may result in criticism of the prosecution or may have an impact on the decision to refer, including issues of delay resulting in an abuse of process argument, prosecution failure to comply with disclosure obligations or a challenge to the original decision to prosecute or proceed with the prosecution. The report must cover whether the prosecution gave the court appropriate assistance at sentence and highlight anything which may have had a bearing on a potentially unduly lenient sentence being passed.

Prosecution advocates should be paid by Areas for their advice on sentence. This falls outside the main hearing free remuneration and the advocate is paid the GFS rate for their advocate level upon receipt of a detailed electronic record of the work involved.

DCCP authorisation of an Abridged or Full Report

As part of the approval process for both an abridged or full report, the DCCP or above should confirm that:

It is essential that the DCCP considers the sentence in the light of any basis of plea and the way the case was presented at court and should ensure they have been properly briefed on this issue, when assessing the sentence against the relevant Sentencing Council guideline(s).

Some decisions are finely balanced. Given the timescale however, it is important that a report is submitted promptly while identifying to the AGO the borderline decision, combining a clear CPS recommendation to refer or not to refer, with acknowledgment that further reflection or information may be required in the remaining time.

It is particularly important that the CPS refers cases it considers to be unduly lenient even if at the same time it highlights factors for the AGO to consider as to whether the court is likely to exercise its discretion to interfere with the sentence imposed.

After the CPS report

The AGO will brief the Law Officers and decide whether to obtain Treasury Counsel’s advice in doing so. While both pieces of advice are subject to Legal Professional Privilege, when the decision has been made feedback can be sought by the CPS in discussion with the AGO about the principal considerations in a decision to refer or not to refer.

The Law Officers are not bound to adopt the approach made by the prosecution in the Crown Court, including any concessions at to the approach the sentencing judge should take or submissions on the law or fact, provided there is a “proper and substantial justification” for doing so: Stewart [2016] EWCA Crim 2238.

If the case is referred, two matters are of note before the hearing at the Court of Appeal. First, a Final Reference containing agreed facts and the Law Officer submissions must be prepared. Treasury Counsel draft this and seek to agree a common factual background for the court to consider, first with prosecution counsel, and then defence counsel. The AGO has responsibility for this process; prosecuting advocates should note their responsibilities in this regard, to assist Treasury Counsel to provide the Court of Appeal with a full and accurate Final Reference. This document should also indicate clearly any departure from the approach taken by the prosecution. This document can be made available to the CPS once finalised and a hearing date set. Second, the Reference may be reviewed in the light of any further information which comes to light. The Law Officers may withdraw a Reference. This may be necessary where limited time was available to take the decision to refer and with the benefit of further time and advice the case is no longer suitable for a reference.

The victim or family of the victim may attend the hearing and a representative of the ULS Team, AGO or counsel will provide them with assistance at court. It will not be necessary for an Area representative to attend the hearing. The ULS Team will provide the result of the hearing to the Area at the completion of the case. Attendance remotely via CPS is possible but the ULS team should be informed in advance so that appropriate authorisation can be sought from the court.

Media Enquiries

The AGO Press Office will take the lead in responding to unduly lenient sentence enquiries, whether they are offences in scheme or not, within time or out of time, and the stage the Law Officer decision-making process has reached. They will liaise with the CPS Press Office as appropriate.

Annex A: Offences within the unduly lenient sentence scheme

There are two broad categories:

  • all offences triable only on indictment; and
  • all either way offences sentenced in the Crown Court and specified by an order.

All offences triable only on indictment

Part IV applies to all offences triable only on indictment (s35(3)(b)(i)). This includes those either way offences made indictable only by virtue of the following provisions:

An offence which is triable only on indictment when committed by an adult (e.g. rape) is “an offence triable only on indictment” notwithstanding that, by virtue of section 24 of the MCA 1980, a person under the age of 18 years may be tried summarily: Attorney General’s Reference (No. 3 of 1993) (R v W) (1994) 98 Cr App R 84, CA.

Either way offences sentenced in the Crown Court and specified by an order

The relevant orders are as follows:

The Criminal Justice Act 1988 (Reviews of Sentencing) Order 2006

Schedule 1 Descriptions of cases to which Part IV of the Criminal Justice Act 1988 is to apply:

1. Any case tried on indictment:

  • following a notice of transfer given under section 4 of the Criminal Justice Act 1987 (notices of transfer and designated authorities) by an authority designated for that purpose under subsection (2) of that section; or
  • in which one or more of the counts in respect of which sentence is passed relates to a charge which was dismissed under section 6(1) of the Criminal Justice Act 1987 (applications for dismissal) and on which further proceedings were brought by means of preferment of a voluntary bill of indictment.

2. Any case in which sentence is passed on a person for one of the following offences:

3. To the extent that Part IV of the Criminal Justice Act 1988 does not apply by virtue of section 35(3)(b)(i), any case in which sentence is passed on a person for an offence under one of the following sections of the Sexual Offences Act 2003:

  • section 3 (sexual assault);
  • section 4 (causing a person to engage in sexual activity without consent);
  • section 7 (sexual assault of a child under 13);
  • section 8 (causing or inciting a child under 13 to engage in sexual activity);
  • section 9 (sexual activity with a child);
  • section 10 (causing or inciting a child to engage in sexual activity);
  • section 11 (engaging in sexual activity in the presence of a child);
  • section 12 (causing a child to watch a sexual act);
  • section 14 (arranging or facilitating commission of a child sex offence);
  • section 15 (meeting a child following sexual grooming etc);
  • section 25 (sexual activity with a child family member);
  • section 47 (paying for sexual services of a child);
  • section 48 (causing or inciting child prostitution or pornography);
  • section 49 (controlling a child prostitute or a child involved in pornography);
  • section 50 (arranging or facilitating child prostitution or pornography);
  • section 52 (causing or inciting prostitution for gain);
  • section 57 (trafficking into the UK for sexual exploitation);
  • section 58 (trafficking within the UK for sexual exploitation);
  • section 59 (trafficking out of the UK for sexual exploitation);
  • section 61 (administering a substance with intent).

4. Any case in which sentence is passed on a person for attempting to commit or inciting the commission of an offence set out in paragraph 2(a) to (h) or paragraph 3.

The Criminal Justice Act 1988 (Reviews of sentencing) (Amendment) Order 2012/1833

This order added:

The Criminal Justice Act 1988 (Reviews of Sentencing) (Amendment) Order 2017/751

This order adds the following offences under the following to the scheme:

  • section 11 or section 12 of the Terrorism Act 2000(“the 2000 Act”) (offences relating to proscribed organisations);
  • sections 15 to 18 of the 2000 Act (offences relating to terrorist property);
  • section 38B of the 2000 Act (failure to disclose information about acts of terrorism);
  • section 54 of the 2000 Act (weapons training);
  • sections 57 to 58A of the 2000 Act (possessing things, collecting information and eliciting, publishing or communicating information about members of the armed forces etc for the purposes of terrorism);
  • section 113 of the Anti-Terrorism, Crime and Security Act 2001 (use of noxious substances or things to cause harm or intimidate);
  • section 1 or section 2 of the Terrorism Act 2006 (encouragement of terrorism);
  • section 6 or section 8 of the Terrorism Act 2006 (training for terrorism).
  • Any case in which sentence is passed on a person for one of the following:
  • where there is jurisdiction in England and Wales by virtue of any of sections 63B to 63D of the 2000 Act (extra-territorial jurisdiction in respect of certain offences committed outside the United Kingdom for the purposes of terrorism etc).

The Criminal Justice Act 1988 (Reviews of Sentencing) (Amendment) Order 2017/1328

This order adds the following offences to the scheme:

  • Offences contrary to section 19, section 21A, section 21D and section 39 of the Terrorism Act 2000 (disclosure of information: duty; failure to disclose: regulated sector; tipping off: regulated sector; disclosure of information)

The offences contrary to:

The Criminal Justice Act 1988 (Reviews of Sentencing) (Amendment) Order 2019/1397

This Order adds the following offences to the scheme:

  • Abuse of position of trust: sexual activity with a child (s.16, Sexual Offences Act 2003);
  • Abuse of position of trust: causing or inciting a child to engage in sexual activity (s.17, Sexual Offences Act 2003);
  • Abuse of position of trust: sexual activity in the presence of a child (s.18, Sexual Offences Act 2003);
  • Abuse of position of trust: causing a child to watch a sexual act (s.19, Sexual Offences Act 2003);
  • Inciting a child family member to engage in sexual activity (s.26, Sexual Offences Act 2003);
  • Sexual activity with a person with a mental disorder impeding choice (s.30, Sexual Offences Act 2003);
  • Causing or inciting a person, with a mental disorder impeding choice, to engage in sexual activity (s.31, Sexual Offences Act 2003);
  • Engaging in sexual activity in the presence of a person with a mental disorder impeding choice (s.32, Sexual Offences Act 2003);
  • Causing a person, with a mental disorder impeding choice, to watch a sexual act (s.33, Sexual Offences Act 2003);
  • Possession of indecent photograph of a child (s.160, Criminal Justice Act 1988)
  • Taking, possessing, distributing, publishing Indecent Photographs of Children (s.1 Protection of Children Act 1978);
  • Harassment: putting people in fear of violence (s.4, Protection from Harassment Act 1997);
  • Stalking involving fear of violence or serious alarm or distress (s.4A, Protection from Harassment Act 1997); and
  • Controlling or Coercive Behaviour in an Intimate or Family Relationship (s.76, Serious Crime Act 2015).

This Order also brings within the ULS Scheme attempts to commit these offences, and the incitement, encouragement or assistance in the commission of these offences.

The Order also rectifies two previous oversights. It adds the inchoate offences, of attempting to commit, inciting the commission of, and encouraging or assisting an offence of, to the relevant modern slavery offences that were added to paragraph 2 of Schedule 1 of the Criminal Justice Act 1988 (Reviews of Sentencing) Order 2006 by the Modern Slavery Act 2015 (Consequential Amendments) Regulations 2015. The Order also clarifies that the offence of causing racially or religiously aggravated harassment, alarm or distress under section 31(1)(c) of the Crime and Disorder Act 1998 is not in scope of the scheme, as it is a summary-only offence.

Annex B: Abridged or full report template

A Full/Abridged report template is available.

Annex C: Template for Prosecution Counsel’s advice on sentence

A template for Prosecution Counsel's advice on sentence is available.

Annex D: 'Texts' and SOCPA Agreements

Procedure for handling sensitive material relevant to sentencing

It is important that the Attorney General's Office is provided with all the information to which the sentencing judge had access, so as to enable an informed decision to be made. This may include the existence of a “text” or an agreement pursuant to section 74 Sentencing Act 2020.

Reference to any sensitive material must not be made in any email or other document, including for example any advice from Counsel, concerning a potentially unduly lenient sentence. A reference may be made to further information which will need to be taken into account, without specifying what it is. Care should be taken to ensure that any relevant telephone conversations take place privately and without any risk they could be overheard.

The prosecuting advocate who dealt with the sentence hearing must ensure that, along with their advice, they alert the CPS to the existence of any sensitive material. Any lawyer who endorsed or reviewed the text or entered into a section 74 Sentencing Act 2020 agreement should ensure the DCCP providing a report to the AGO is aware of the same.

The AGO must ensure the Criminal Appeal Office (CAO) at the Court of Appeal is informed of the existence of such material, again without direct reference in writing but instead by telephone. The AGO will discuss with the CAO lawyer how this material should be brought to the attention of the court.

'Texts' and Sentencing Act 2020 agreements must be treated as sensitive material and in most cases should be classified as 'SECRET'.


 

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