The Unduly Lenient Sentence Referral Scheme – A Politicised Process?

Is the unduly lenient sentence referral scheme in need of reform? Some commentators, responding to statistics contained in a recent press release (More victims and their families get justice) from the Attorney General’s Office, which has responsibility for referring requests for sentence reviews to the Court of Appeal, seem to think so.

The press release notes that 137 offenders had their sentence increased in 2017 (out of 173 who were referred to the Court of Appeal). In the overall context of those progressing through the Crown Courts each year (approximately 80,000 in 2017), this is only a small number. However, the total number of requests directed to the Attorney General’s Office increased from 837 in 2016 to 943 in 2017. What is behind this increase and is it a cause for concern?

Increased publicity and the politicisation of sentencing

One school of thought takes the view that, perhaps as a consequence of increasing press examination, including through online reporting, sentencing is becoming a more populist exercise that is worryingly vulnerable to political motivations. The Attorney General combines the roles of Chief Legal Advisor to the Crown and Superintendent of prosecuting authorities with that of being a Government Minister. When compared to Lord Chancellor and the Home Secretary whose quasi-judicial functions have been the subjects of various reforms, the Attorney General’s function begins to look like something of an anachronism.

Unduly Lenient Sentence Scheme

Unduly Lenient Sentence Scheme

The role of the Attorney General’s Office in reviewing unduly lenient sentences

Although it is not the job of the Attorney General’s Office to determine whether a sentence should be increased, it does have responsibility for deciding whether or not to refer a request for a review to the Court of Appeal – and this is forming a large chunk of its workload. If the upward trend in requests for referrals continues, this situation is likely to escalate.

Some commentators have already posed the question of whether the Attorney General’s Office ought to have the role of deciding whether or not to refer on to the Court of Appeal. At the first instance it is the Judge overseeing the criminal proceedings who is considered best placed to determine the sentence to be attached to any guilty verdict. The traditional independence of the judiciary is preserved by the Sentencing Guidelines, which provide the structure within which the Judge arrives at the verdict while also allowing for the exercise of judicial discretion. Why, then, is it appropriate for a government minister – emphatically not a political neutral figure – to determine whether or not a sentence should be referred to the Court of Appeal?

If the number of requests for review received by the Attorney General’s Office continues to rise, calls to safeguard the process from political interference (whether real or perceived) may also increase. Resolving this problem may necessitate putting responsibility into the hands of the Crown Prosecution Service. Alternatively, a new independent non-executive – and thus politically neutral body – could be tasked with reviewing these requests. Of course, opting for one of these methods might not immediately affect the number of requests for review but it should ensure that the sentencing process remains free of any suggestion of political or populist taint at every stage of the process.

Article supplied by Clifford Johnston & Co

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