Further thought should be given to the attorney general’s role.
This week we learned from the Attorney General’s Office that 137 offenders had their sentence increased in 2017 under the unduly lenient sentence referral scheme. The scheme allows the victims of crime, their families or any member of the public to ask for a review of sentences they believe are too low.
A total of 173 sentences were referred to the Court of Appeal in 2017. Furthermore, the attorney general received 943 requests for referrals, a 12% increase on the number of requests submitted the previous year.
Interestingly, the number of cases successfully referred to the Court of Appeal in 2017 was lower than the previous year and the number of sentences altered by the Court of Appeal in 2017 was also lower than in 2016.
What is clear from these statistics is that reviewing complaints of unduly lenient sentences is becoming an increasing part of the Attorney General’s Office portfolio. Perhaps further thought should be given to this aspect of the attorney general’s role.
Under the current regime anybody (even if they are unconnected with the case) can request that the attorney general reviews a sentence. Given the record number of complaints, this is likely to become an increasing burden on the workload of the attorney general.
As the attorney general recognises ‘a sentencing exercise is not an exact science’. The unduly lenient procedure, by its nature, allows for the sentencing process to be deconstructed and a new sentence imposed by different judges rigidly applying the sentencing guidelines. The process entails a more scientific approach to sentencing. In some ways this can be seen to undermine the discretion of the original sentencing judge.
Of particular concern to criminal defence lawyers like myself is that sentencing decisions are becoming increasingly politicised – and this is partly because the decision as to whether or not to refer a sentence to the Court of Appeal rests with the attorney general, a minister and member of parliament.
One potential solution to avoid this would be for the referral role to be assumed by an independent non-executive agency which could provide an impartial review of the circumstances of the offence and sentence. This would have the benefit of a politically neutral body, unconnected to the Crown or prosecuting authorities, providing an impartial opinion on the propriety of sentences.
Alternatively, the decision could be vested solely with the Crown Prosecution Service, which holds an interest in ensuring that unduly lenient sentences are challenged. After all, the decision as to whether or not to refer a sentence to the Court of Appeal does not require ministerial oversight and could be made by a senior lawyer, not a politician.
Either way, the statistics released from the Attorney General’s Office highlight an important trend and an area crying out for reform. A change in responsibility for overseeing the unduly lenient sentence referral scheme would also have the benefit of allowing the attorney general to focus on being the chief legal adviser to the Crown - and on delivering much needed reforms to the criminal justice system.
Nick Dent is a criminal defence lawyer at Kingsley Napley LLP