Unduly Lenient Sentences

Updated 22 November 2019|Legal Guidance

Contents

This legal guidance deals with referrals to the Attorney General of sentences considered to be unduly lenient by virtue of sections 35 and 36 of the Criminal Justice Act 1988. Unless indicated otherwise, reference in the guidance of sections, paragraphs or schedules are to the 1988 Act.

In addition, there is the ULS Infographic which provides a pictorial overview of the process.

Power to refer

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

  • was passed in respect of an offence to which Part IV of the Act applies;
  • was passed in a proceeding in the Crown Court; and
  • appears to be unduly lenient.

Responsibility of CCP

Every CCP is required by the Director to take personal responsibility for ensuring that all unduly lenient sentencing (ULS) submissions made by their Area are of the highest quality and submitted expeditiously.  

Timeliness

A referral to the Court of Appeal must be made within 28 days of the date of sentence (Criminal Justice Act 1988, Paragraph 1, Schedule 3).

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 from the day following the sentence, so it will end on the same day of the week, four weeks later. Where there is likely to be a submission close to the end of the time limit, the ULS Team in the Appeals Unit in the Special Crime and Counter Terrorism Division and the Attorney General's Office (AGO) should be contacted at the earliest opportunity.

When submitting papers to the ULS Team and AGO, it is important for Areas to consider public and non-working days, particularly over the Christmas and Easter period.

Please ensure that if the case has missed the time limit, or is not referable, a short note should be submitted to the AGO setting out what contact there has been with any interested party, for example whether there has been a meeting or whether one is proposed, addressing concerns raised and providing sufficient information for a letter to be drafted by the AGO to the interested party.

56-Day Slip Rule

The Crown Court has the power to alter a sentence or other order made by the Crown Court within 56 days of the date on which it was made (Section 155 Powers of Criminal Courts (Sentencing) Act 2000, as amended by section 47 and schedule 8 paragraph 28 Criminal Justice and Immigration Act 2008).

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 has been omitted or a mandatory minimum sentence or term has not been applied.

However, in such cases, CPS Areas should ensure that the court addresses the error under the slip rule well within 28 days of sentence because of the need to remain within the absolute time limit for a referral to be made (See Timeliness above).

In such circumstances, Areas should contact the ULS Team and the AGO at an early stage to discuss and agree the approach.  

How referrals arise

Unduly lenient sentence referrals 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;
  • media coverage may prompt the Area to consider the case;
  • the Attorney General may also be contacted directly, by MPs, peers, pressure groups or members of the public. In those cases, the AGO will request papers from the Area with casework responsibility for the case.

How the decision is made

Parliament imposed strict safeguards in the 1988 Criminal Justice Act when changing the law from the previous position when there was no question of increasing a sentence.

The Attorney General must consider the case personally and decide whether a particular sentence is unduly lenient in accordance with section 36(1)(a). That condition may be satisfied if the judge has erred in law as to his/her powers of sentencing (section 36(2)) to the extent that the resulting sentence is unduly lenient. The Attorney General must exercise his/her discretion in respect of the individual case.

In Attorney General's Reference No 14 of 2003 (R v Sheppard TLR 18 April 2003) leave was refused because the Attorney General was not fully in the picture as to the nature of the case under consideration, and his discretion had therefore been exercised on a false basis.

It is vital that the papers submitted make the Attorney General aware of any agreed basis of plea. Any agreed basis that differs from the evidence in the prosecution file should have been reduced to writing and endorsed by the advocates, in accordance with the Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise.

The Consolidated Criminal Practice Direction provides essential information on the procedure to be followed in the Crown Court.  

Offences subject to review

The offences capable of review under Part IV of the Act are:

  • offences triable only on indictment; or
  • other offences specified by order.

The first category includes the following common offences by virtue of Schedule 1 paragraph 28 Magistrates' Courts Act 1980:

  • burglary comprising the commission of, or an intention to commit, an offence which is triable only on indictment (such as s18 GBH for example);
  • burglary in a dwelling if any person in the dwelling was subjected to violence or the threat of violence.

The first category also includes the following offences:

  • A third or subsequent domestic (dwelling) burglary (section 111(4) Powers of Criminal Courts (Sentencing) Act 2000).
  • A third or subsequent class A drug trafficking offence (Section 110(4) Powers of Criminal Courts (Sentencing) Act 2000).

The second category offences are set out in the Criminal Justice Act 1988 (Reviews of Sentencing) Order 2006. This has been amended by the Criminal Justice Act 1988 (Reviews of Sentencing) (Amendment) order 2012 which came into force on 6 August 2012. From 13 May 2013 this was further amended to include section 59A of the Sexual Offences Act 2003 (as amended). The Criminal Justice Act 1988 (Reviews of Sentencing) (Amendment) Order 2014 came into force on 21 July 2014 and added the offences of holding a person in slavery or servitude and requiring a person to perform forced or compulsory labour under section 71 of the Coroners and Justice Act 2009 to the list, as well as attempt, incitement and encouraging or assisting in relation to the section 71 offences.

See Annex A for the full list of offences in the order.

A third category of offences are set out in the Criminal Justice Act 1988 (Reviews of Sentencing) Order 2019 which came into force on 19 November 2019. This Order amends the Reviews of Sentencing Order by adding in nine further sexual offences set out in the Sexual Offences Act 2003 (sections 16, 17, 18, 19, 26, 30, 31, 32 and 33) two offences concerning indecent photographs of children (section 160 of the Criminal Justice Act 1988 and section 1 Protection of Children Act 1978), two offences concerning harassment and stalking (section 4 and section 4A of the Protection from Harassment Act 1997), and the offence of coercive and controlling behaviour in an intimate or family relationship (section 76 of the Serious Crime Act 2015). The Order also adds in the attempt to commit, and the incitement, encouragement or assistance in the commission of, the two modern slavery offences to paragraph 2 of Schedule 1 via 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.

See Annex A for the full list of offences in the order.

Prosecutors need to exercise caution where an offence may be both indictable only or either way depending on the different circumstances. For example, the offence of assisting an offender (section 4 Criminal law Act 1967) is indictable only and therefore referable as a ULS, when the offence to which it relates is indictable only, but is otherwise triable either way (section 17(1) and Schedule 1 of the Magistrates' Courts Act 1980).  

Sentences subject to review

Only the sentences listed below are capable of review:

  • sentences passed in the Crown Court for indictable only offences;
  • sentences passed in the Crown Court for specified either way offences committed for trial;
  • sentences passed in the Crown Court for specified either way offences committed for sentence by a magistrates' court;
  • sentences passed in the Crown Court committed from the youth court as a grave crime;
  • the minimum term of an indeterminate sentence.

Sentences passed in the Youth Court for indictable only or specified either way offences are not subject to review. The power to review applies only to a sentence passed in a proceeding in the Crown Court.

Some offenders may be subject to a minimum sentence provision (for example in relation to a third offence of domestic burglary). A failure by the court to impose the statutory minimum may lead to the sentence being regarded as unduly lenient. The circumstances of the offence itself may also be such that imposition of the statutory minimum (or even a sentence above the statutory minimum) could be regarded as unduly lenient.  

Multiple sentences

Once there is a qualifying offence, all sentences passed on an offender in the same proceedings can be referred.

If an offender has been sentenced for two or more matters, the sentences are to be treated as having been passed in the same proceedings if:

  • they are passed on the same day; or
  • they are passed on different days but the court in passing them states that it is treating them as one sentence.

The Attorney may therefore refer all such sentences to the Court of Appeal, even where one or more of them on their own could not be referred. The court may increase the sentence for all the offences.

See section 36(3) of the Criminal Justice Act 1988 combined with section 10 of the Criminal Appeal Act 1968.  

Deferred sentences

A reference should be considered at the moment the sentence is deferred, not at the end of the deferment period when a sentence is finally imposed.

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. In that connection, regard must of course be had to reported cases and in particular to the guidance given by this Court from time to time in the so-called guideline cases.'

It is important to note that the judgment continues:

'However it must always be remembered that sentencing is an art rather than a science; that the trial judge is particularly well placed to assess the weight to be given to various competing considerations; and that leniency itself is not a vice. That mercy should season justice is a proposition as soundly based in law as in literature.' (Attorney General's Reference No 4 of 1989 11 Cr. App. R. (S) 517 - Lord Lane CJ.)

There must have been some error of principle in the judge's sentence, such that, in the absence of the sentence being altered by the Court, public confidence would be damaged. The court should only grant leave in exceptional circumstances, and not in borderline cases. (Attorney General's Reference No 5 of 1989 11 Cr. App. R. (S) 489 - Lord Lane CJ.)

This includes cases where judges err in law as to their powers of sentencing (section 36(2) of the Criminal Justice Act 1988) or fail to impose a sentence required by the following provisions:

  • minimum sentence for certain firearms offences (section 51 of the Firearms Act 1968);
  • minimum of seven years for third Class A drug trafficking offence (section 110(2) of the Powers of Criminal Courts (Sentencing) Act 2000 ('PCCSA'));
  • minimum of three years for third domestic burglary (section 111(2) of the Powers of Criminal Courts (Sentencing) Act 2000);
  • life sentence or detention for life for serious offences (section 225(2) and 226(2) of the Criminal Justice Act 2003).

Section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 (life sentence for second serious offence) has now been repealed but offences committed before 4th April 2005 can still be referred even if the date of sentence is after that date. See:

R v Edwards, Attorney General's Reference No 60 of 2012 [2012] EWCA Crim 2746 held that the procedure for referring cases under section 36 of the Criminal Justice Act 1988 is designed to deal with cases where judges have fallen into gross error, where errors of principle have been made and unduly lenient sentences have been imposed as a result.  

Double Jeopardy

When assessing the likelihood of the sentence being increased, account should be taken of what the Court of Appeal has called the "double jeopardy discount". This is the reduction in sentence the court may make for the fact that an offender is being sentenced a second time.

The court considered the principle in the key case of Attorney General's References No. 14 and 15 of 2006 (Webster and French) - link here. The Court held that double jeopardy is but one aspect of the court's task when considering whether and how to intervene where an unduly lenient sentence has been imposed; where an offender had no responsibility for the undue leniency, justice required that some regard (the degree to which being fact-specific) should be had to the distress and anxiety experienced by the offender; these were likely to be particularly great where a custodial sentence was imposed in place of a non-custodial sentence, where a custodial sentence had been completed, where the offender was young and immature or where he was about to be released, and in such cases discounts for double jeopardy should tend to be near the upper end of the range (generally at about 30 per cent). Distress and anxiety are much less significant where a lengthy period of imprisonment was still to be served and in such cases double jeopardy was of limited application and in some cases could properly not be taken into account (this being discretionary).

However, where a reference relates to the determination of a minimum term in relation to a mandatory life sentence (section 269(2) Criminal Justice Act 2003) the Court of Appeal shall not, in deciding what order is appropriate, make any allowance for the fact that the person to whom it relates is being sentenced for a second time.

Advice to the Attorney General from the prosecuting advocate should cover an assessment of the double jeopardy discount.

[Note: Section 46 of the Criminal Justice and Immigration Act 2008 extends the prohibition on applying the 'double jeopardy rule' to discretionary life sentence and other indeterminate sentence cases. It was not in force with respect to England and Wales at the time this guidance was published. If you are dealing with such a case you should check whether s46 has been fully implemented.] 

The Referral

Part 41 of the Criminal Procedure Rules 2015 which came into force on 5 October 2015, sets out the procedure to be followed. It requires the written reference to contain specific information about the case. Please see link below for CPR 2015:

http://www.legislation.gov.uk/uksi/2015/1490/contents/made

The information must include the name of the defendant, date and place of the Crown Court decision, relevant verdict and sentence. The CPS case papers must therefore include all these details in a clearly accessible and accurate form.

Details of defence solicitors and judge should also be included.

The further detail required for a submission to the ULS Unit, Special Crime and Counter Terrorism Division is set out below. The submission should be sent to the Unit within 10 days of the date of sentence. This is to allow sufficient time for the ULS Unit and then the AGO to consider the referral within the absolute time limit of 28 days from date of sentence.   

Required documentation

Abridged report

There may be occasions when the CPS does not consider the sentence to be unduly lenient but it is necessary to prepare a referral for a decision to be made by the Attorney General.

This may occur when:

  • interested parties, including victims or the bereaved or an MP, contact the CPS concerning the sentence;
  • media interest makes it appropriate, or
  • a request to refer the sentence is made direct to the Attorney General.

An abridged report should set out:

  • the offences;
  • the facts of the case;
  • the age of the offender;
  • whether there was a guilty plea and at what stage it was entered;
  • details of any basis of plea;
  • the sentence (including orders and any reporting restrictions, if any);
  • relevant mitigating/aggravating factors;
  • any other issues relevant to sentencing such as delay;
  • any other unusual features of the case such as whether the judge was explicitly exercising his prerogative of mercy;
  • a note of sentencing remarks; and
  • trial advocate's or HCA's advice on sentence making reference to relevant Sentencing Council guidelines and decided cases;
  • any views of the DCCP regarding sentence;
  • contact details for the prosecution advocate, and;

Full report

If the case is suitable for referral, two copies of a full report should be submitted to the ULS Team. The following information should be included in a full report:

  • covering letter confirming CCP's authorisation to refer;
  • prosecuting advocate's advice on sentence making reference to relevant Sentencing Council guidelines and decided cases;
  • indictments and TICs;
  • agreed basis of plea;
  • case summaries or note of prosecution opening (guilty pleas);
  • transcripts;
  • discussions in chambers or in open court on sentencing;
  • sentence indications (in Goodyear cases);
  • sentencing hearing, including opening, mitigation and sentencing remarks;
  • plea and sentence document (PSD);
  • antecedents;
  • pre-sentence and other reports (psychiatric/medical);
  • character references and written material submitted in mitigation;
  • period spent in custody;
  • victim personal statements;
  • statements and exhibits and relevant DVDs (subject to security);
  • complaints received regarding sentence;
  • details of media coverage;
  • 'texts' and section 73 Serious Organised Crime And Police Act 2005 ('SOCPA') material (subject to PII and security procedures) or any other material that has a bearing on the sentence and was seen by the judge – see separate guidance on handling and security issues);
  • any other relevant material, including reporting restrictions; and
  • contact details for the prosecution advocate. 

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.

In multi-handed cases this information should be available in respect of all offenders - not just for those offenders where the CPS considers the sentence to be unduly lenient. The Law Officers need to consider all the sentences in relation to each other as well as in relation to relevant guidelines or authorities. 

CCP authorisation

The CCP, or if the authority has been so delegated by the CCP, the DCCP should confirm that:

  • the prosecution advocate's advice and the papers have been considered;
  • the advice and papers deal with all relevant matters (see: Annex B: Unduly Lenient Sentence – Instructions and Template for the Prosecution Advocate);
  • the views of the advocate are endorsed.
  • the prosecution advocate has confirmed that they wish to be instructed in the ULS

If the CCP/DCCP has any concerns about how the prosecution advocate conducted the sentence hearing, that would prevent them from conducting the ULS, they must identify this in their report.

It is essential that the CCP/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.

Notwithstanding the authorisation of the CCP/DCCP, the Law Officers will decide which advocates should conduct the proceedings on a case by case basis.

The ULS Team will also be responsible for the payment of fees (see 'Fees' below). 

Advice on sentence

The prosecution advocate or the HCA should draft an advice (in accordance with the template provided to CCP/DCCPs making reference to relevant Sentencing Council guidelines and decided cases.

The AGO's Guidance sets out in detail what should be included within this advice, as well as a template to be used.

The advocate who prepares the advice must ensure full and accurate information is given on all earlier hearings that may be relevant to sentence. If necessary this should be checked by any other advocate or HCA in attendance at the earlier hearings.

A table in the form recommended by the Court of Appeal, as set out below, must be included in the advice.

Count on Indictment

Offence

Pleaded guilty or convicted

Sentence Imposed

Concurrent or Consecutive

Maximum Sentence

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total sentence

 

Minimum term if applicable

 

Time to count towards sentence under section 240/240A of the Criminal Justice Act 2003

 

Other relevant orders

 

When an advocate is considering what authority, if any, to cite for a proposition, only an authority which establishes the principle should be cited. In R v Erskine; R v Williams [2009] EWCA Crim 1425 the Court of Appeal issued a strong direction about lengthy citation of authorities in appeals against conviction or sentence.

Reference should not be made to authorities, which do no more than either (a) illustrate the principle or (b) restate it. Advocates must be able to justify the citation of each authority relied on or included in the bundle. The court is most unlikely to be prepared to look at an authority which does no more than illustrate or restate an established proposition. The Lord Chief Justice made it clear that this approach would be rigidly applied.

Indictments and TICs

A copy of all indictments and allegations before the court should be included, not just those for which a review of the sentence is being considered. This must include any offences committed to the Crown Court under Section 41 Criminal Justice Act 1988 and any TICs. It should be made clear if the offender accepted any of the counts as specimen counts.

A copy of the signed indictment showing any amendments, should be obtained from the Court. 

Basis of plea

It is vital that the Attorney General is aware of any agreed basis of plea. (See How the decision is made above).

Any agreed basis of plea should have been reduced to writing and endorsed by the advocates, in accordance with the Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise.

Case summaries

Summaries prepared before trial may not be an accurate reflection of the trial. Any deviation from the original summary must be set out in prosecuting advocate's advice.  

Transcripts

A transcript of the sentence hearing (opening, mitigation and sentencing remarks) and any discussions in chambers or in open court relating to sentence must be provided. Where sentence or basis of plea was discussed at any earlier hearing transcripts of that hearing should also be obtained.

If, in contravention of Court of Appeal guidance, no shorthand note was kept of a sentencing indication, the prosecuting advocate should provide a comprehensive and accurate note of the discussions and give an explanation of the circumstances of the discussions.

Do not delay a submission waiting for a transcript as it can be submitted to the ULS Team when it is received. If any of the relevant transcripts are not available, the prosecuting advocate should supply written notes of what was said relevant to sentencing.

The ULS Team must be kept informed of any delay in obtaining a transcript.  

Sentence indications

Where the judge gave a sentencing indication in accordance with R v Goodyear, the prosecution advocate or the HCA should have reminded the judge that this did not affect the power of the Attorney General to refer any sentencing decision as unduly lenient. In any event, the prosecution advocate should not have said anything which might have created the impression that the sentence indication had the support or approval of the Crown. See Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise and R v Goodyear [2005] EWCA Crim 888.  

Plea and sentence document (PSD)

Where the prosecutor provided the court with a PSD you should include it with the papers.

A PSD is not required in every case sentenced by the Crown Court - only where it is likely to assist the court because the issues are complex or unfamiliar. (See Sentencing - Overview elsewhere in legal guidance for further information and guidance on when a PSD is required and what it should contain).

If there is no PSD with the file you should make further enquiries as to what information the prosecutor gave to the court about sentence, unless the case was neither complex nor contained unfamiliar issues.  

Pre-sentence and other reports

A procedure has been agreed between the CPS and the Ministry of Justice whereby the CPS is provided with copies of the reports, which of course are sensitive and confidential. The CCP should write to the relevant Crown Court Administrator requesting the reports.

The reports should only be used for the ULS procedure and should be destroyed at the conclusion of the case. 

Mitigation

The papers should reflect everything submitted in mitigation. If counsel is not at court during sentence it is important that the CPS representative makes an accurate note.

If written material submitted in mitigation is not available from the Crown Court it will not normally be appropriate to approach the offender's solicitors for a copy.

A written summary of what is known of the material should be included in the papers. If an application to refer the sentence is made, the AGO will write to the offender's solicitors inviting them to make the outstanding material available.  

Statements and exhibits

Areas should liaise with the ULS Team and AGO on a case by case basis.

In cases with numerous statements and exhibits it is preferable to rely on a comprehensive case summary.

After the referral

Once the referral has been made to the Attorney General, the AGO is responsible for lodging the application and reference and whether Treasury Counsel should now be instructed. AGO will inform CPS and the other interested parties (including the offender's solicitors), of the Attorney's decision.

The application must be lodged within the statutory 28 day time limit.

To ensure that cases are progressed in a timely way, the Registrar of Criminal Appeals has directed that the factual basis of the draft reference must be agreed with prosecution counsel within 7 days of the application being lodged with the court. The defendant's legal representative is directed to agree the factual content within 14 days of the draft being agreed by prosecution counsel.

Once the application has been lodged the ULS Team will be responsible for responding to any requests for additional information and Area will be responsible for keeping interested parties locally advised, including victims or the family of a victim. The ULS Team do not provide Area with a copy of the Draft Reference because the factual element of it is agreed directly between Treasury Counsel and Prosecution Trial Counsel.

The Court of Appeal will normally list cases where a defendant has received a custodial sentence of 18 months imprisonment or less or a non-custodial sentence within 5 weeks of the draft reference being lodged with the Court of Appeal. Cases where a defendant has been sentenced to a custodial sentence of more than 18 months will normally be listed within 7 weeks.

The Law Officers have discretion to withdraw a case if new information comes to light. They are responsible for doing so and notifying any interested parties.

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.  

Responding to interested parties

When the CPS decide not to refer a case to the AGO after a complaint about the sentence, care should be taken in responding and time will be of the essence. If the matter is referable the interested party should immediately be told they can contact the AGO direct and the 28 day time limit must be emphasised. They should be advised to contact AGO as soon as possible to enable the AGO to obtain the necessary papers for the Attorney General to make an informed decision before the time expires.

Handling media enquiries

Area Communication Managers will handle local queries.

HQ Press Office must be notified of any case in which media enquiries are raised and be kept informed by the Area.

Once the AGO are involved, their press officer will deal in liaison with HQ press office.  

Annex A: Qualifying Offences

Offences within Part IV Criminal Justice Act 1988

Indictable only offences

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:

Paragraph 28 Schedule 1 Magistrates' Courts Act 1980

  • Burglary comprising the commission of, or an intention to commit, an offence which is triable only on indictment.
  • Burglary committed in a dwelling and any person in the dwelling is subjected to violence or the threat of violence.

Powers of Criminal Courts (Sentencing) Act 1980

  • Offences attracting a minimum sentence for third offences of burglary and drug trafficking (sections 110(4) and 111(4)).

Offences specified by order (s35 (3)(b)(ii))

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:
    • an offence under section 16 of the Offences against the Person Act 1861 (threats to kill);
    • an offence under section 5(1) of the Criminal Law Amendment Act 1885 (defilement of a girl between 14 and 17);
    • an offence under section 1 of the Children and Young Persons Act 1933 (cruelty to persons under 16) or section 20 of the Children and Young Persons Act (Northern Ireland) 1968 (cruelty to persons under 16);
    • an offence under section 6 of the Sexual Offences Act 1956 (unlawful sexual intercourse with a girl under 16), section 14 or 15 of that Act (indecent assault on a woman or on a man), section 52 of the Offences against the Person Act 1861 (indecent assault upon a female), or Article 21 of the Criminal Justice (Northern Ireland) Order 2003 (indecent assault on a male);
    • an offence under section 1 of the Indecency with Children Act 1960 or section 22 of the Children and Young Persons Act (Northern Ireland) 1968 (indecent conduct with a child);
    • an offence under section 4(2) or (3) (production or supply of a controlled drug), section 5(3) (possession of a controlled drug with intent to supply) or section 6(2) (cultivation of cannabis plant) of the Misuse of Drugs Act 1971;
    • an offence under section 54 of the Criminal Law Act 1977 or Article 9 of the Criminal Justice (Northern Ireland) Order 1980 (inciting a girl under 16 to have incestuous sexual intercourse);
    • an offence under section 50(2) or (3), section 68(2) or section 170(1) or (2) of the Customs and Excise Management Act 1979, insofar as those offences are in connection with a prohibition or restriction on importation or exportation of either:
      • a controlled drug within the meaning of section 2 of the Misuse of Drugs Act 1971, such prohibition or restriction having effect by virtue of section 3 of that Act; or
      • (an article prohibited by virtue of section 42 of the Customs Consolidation Act 1876 but only insofar as it relates to or depicts a person under the age of 16;
    • offences under sections 29 to 32 of the Crime and Disorder Act 1998 (racially or religiously aggravated assaults; racially or religiously aggravated criminal damage; racially or religiously aggravated public order offences; racially or religiously aggravated harassment etc).
  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 adds cases tried on indictment following the giving of a notice by a designated authority under section 51B of the Crime and Disorder Act 1998 (notices in serious and complex fraud cases). It also adds to the 2006 Order offences involving trafficking people for exploitation under section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. Paragraph 4 of Schedule 1 to the 2006 Order is extended to include offences of encouraging or assisting under section 44 or 45 of the Serious Crime Act 2007.

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

This Order amends the Reviews of Sentencing Order by adding in nine further sexual offences set out in the Sexual Offences Act 2003, two offences concerning indecent photographs of children, two offences concerning harassment and stalking, and the offence of coercive and controlling behaviour in an intimate or family relationship. The offences are:

  • 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 (Criminal Justice Act 1988, s.160)
  • 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 (Protection from Harassment Act 1997, 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 in the attempt to commit, and the incitement, encouragement or assistance in the commission of, the two modern slavery offences to paragraph 2 of Schedule 1 via 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: Instructions for Advocates

Unduly Lenient Sentences - Instructions and Template for Prosecution Advocates

Counsel will know that there is a mandatory time limit of 28 days in which to apply for a reference. If he takes the view that the sentence should be appealed he must contact the CPS unit manager as a matter of urgency to discuss the matter and agree time scales.

Counsel will need to draft an advice in the format set out hereunder and ensure that the following issues are carefully considered.

If counsel appeared at the sentence hearings, but was not the advocate who appeared when the guilty plea was entered, or alternatively, not the advocate at trial, it is incumbent on counsel to provide full and accurate information in relation to the matters set out below. If necessary, the matters should be checked by counsel with the advocate or advocates previously instructed.

The following headings set out the issues to be considered:

1. Sentence

In the event of a guilty plea

  • Any relevant discussion as to plea or sentence with judge in chambers or open court with particular attention paid to the stance taken by the prosecution.
  • Any relevant discussion with the defence as to how the facts were to be opened.
  • Any basis of plea.
  • The history of the case, particularly the date of and the stage at which the plea or pleas were entered - if an offender pleaded guilty it is important to know if on an earlier occasion the offender had pleaded not guilty to the same count.
  • If the offender offered a guilty plea which was only accepted at a late stage, this should be made clear.
  • Any comments made by judge during course of opening or mitigation relevant to sentence.

Full note of the sentencing remarks, including any ancillary orders.

2. Facts

  • How the case was opened.
  • Whether the counts on the indictment were expressed and accepted to be specimens.
  • Whether there were any disputes on the significance of the evidence and any inferences to be drawn from it, and the resolution of these.

In the event of a conviction following trial

  • How the case was opened to the jury.
  • Whether the offender gave evidence and called other evidence (if so what was its nature e.g. witnesses as to fact or character evidence).
  • Whether the evidence left to the jury differed to the evidence in the witness statements.
  • Whether the judge expressed any views relevant to sentence in the course of the trial or the summing up

3. Aggravating Features

4. Summary of the Mitigation and Mitigating Features

A note of any unusual circumstances of the offender and any indication that the sentencing judge was exercising his prerogative of mercy

5. Antecedents

  • Offender's date of birth.
  • Summary of any text, victim personal statement, personal letter from the offender, character evidence/references, pre-sentence report, psychiatric or medical report or other documents relevant to sentence. If copies of these have not been obtained, please highlight their existence so that copies can be requested.
  • Any convictions.

6. Sentencing Range

Any sentencing guidelines or authorities to which reference was made and a copy of any note on sentencing provided to the Court.

7. Miscellaneous

  • Evidence, submissions and findings during any Newton hearings;
  • A full note thereof

8. Conclusion

The reasons why it is considered that the sentence is unduly lenient and the range of sentence it is suggested should have been applied citing relevant authorities.

  • Whether the Court of Appeal, taking into consideration the way in which the case was presented in the Crown Court, is likely to interfere with the decision of the lower court.

In all cases: 

  • Detail of any other offences and offenders dealt with on the same occasion and sentence.
  • Name of Crown Court and sentencing judge.
  • Details of trial/plea advocate's chambers address and telephone number, mobile telephone and email address.
  • Defence counsel's name and chambers

A table in the form recommended by the Court of Appeal, as set out below, must be included in the advice.

Count on Indictment

Offence

Pleaded guilty or convicted

Sentence Imposed

Concurrent or Consecutive

Maximum Sentence

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total sentence

 

Minimum term if applicable

 

Time to count towards sentence under section 240/240A of the Criminal Justice Act 2003

 

Other relevant orders