“We have decided that we do need to change your sentence.” With those words, Lady Chief Justice Sue Carr delivered the Court of Appeal’s ruling on two teenagers convicted of multiple rapes, overturning the non-custodial sentences the trial court had originally imposed. After hearing arguments from the crown and the defence advocates, the court concluded the original sentences were unduly lenient, and increased them to four years’ detention in a young offender institution.
Courts of all levels can err when determining sentence. The appeal process exists to prevent excessively harsh or lenient sentences from being imposed. All common law jurisdictions (where law is derived from the English system of judge-made law, such as the US and Canada) allow defendants and the prosecution to appeal a sentence.
Trial courts, also known as “first instance” courts, can make mistakes – even when they follow detailed sentencing guidelines as is the case in England and Wales and Scotland. Miscarriages of justice can arise from excessively severe or excessively lenient sentences.
The Unduly Lenient Sentence (ULS) scheme in England and Wales accords the attorney general the opportunity to appeal sentences on the grounds that they were manifestly too lenient.
Originally enacted in 1989, the scheme is restricted to certain serious offences, including murder, manslaughter, rape, robbery and some child sex and child cruelty offences. Certain serious fraud, drug and terrorism-related offences are also included. If a sentence is imposed for a crime included in the scheme, the attorney general may ask the Court of Appeal for a sentence review. The court must first give leave to appeal. If leave is granted, the court will hear submissions on behalf of the attorney general, and also the offenders on whom the sentence was imposed.
In considering whether to amend the sentence, the court applies a high standard. If the court simply has the view that the sentence was somewhat lenient, this is insufficient to interfere with the trial court’s decision. The court must distinguish between a sentence that is less than the appeal court would have imposed, and one which is likely to be “unduly lenient”.
In referring the Fordingbridge case, Attorney General Richard Hermer said: “There has understandably been a huge amount of public interest, and concern, at this horrific case.”
Involving the public
The ULS scheme in England and Wales has a unique aspect not found in other countries. Crime victims or many members of the public can ask the attorney general’s office to examine sentences handed down by crown courts within six months of sentencing under the scheme (recently increased from 28 days), as long as the offence falls within the remit of the scheme. No other common law country allows members of the public to request a sentence review.
If a victim or other member of public requests a review, this does not guarantee the court of appeal will conduct a review. The decision to refer a sentence rests wholly with the attorney general – few referrals from victims or the public ultimately result in a review by the court of appeal.
Legal scholars are divided on the merits of allowing members of the public to request a sentence review.
Critics argue that the public seldom has sufficient knowledge of the case to reach an informed decision as to whether a given sentence is too lenient. News accounts of a sentence are often inaccurate, omitting important details of the case that may justify what appears to be a very lenient sentence.
There is also the risk of raising expectations that may not be fulfilled. How do victims feel when they seek a review of a sentence, only to learn that the attorney general has declined to refer the case to the Court of Appeal?
Defenders of public input argue that this feature permits greater democratic engagement with the sentencing process and encourages victim participation in the court system. As such, it may enhance public and victim satisfaction with sentencing overall. Advocates note that the decision to refer a sentence lies ultimately with the attorney general, so there is no danger of “victim-driven” justice.
Every year, several thousand defendants appeal their sentence. The number of attorney general references under the ULS is, by comparison, still relatively low – only a few hundred applications. But of these, almost all are granted leave (proceed to a review) – suggesting the court usually agrees that a review was appropriate.
In terms of outcomes, the court of appeal increased the sentence in approximately two-thirds of all cases referred by the attorney general that it agrees to review.
The ULS scheme has yet to be the subject of any formal review, and there is very little research on the issue. Many questions remain. For example, should the range of offences covered by the scheme be expanded? And most importantly, are victims – or the sentencing process more generally – better off by allowing this engagement with the appeal process?
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