Unduly Concerned

Just as 2015 started with an unnecessary and potentially counterproductive idea for criminal justice reform – Lord Leveson’s suggestion that courts ask for fewer probation reports before imposing sentence- so has 2016. This year it’s the Attorney General arguing that his power to find sentences unduly lenient should be extended to a wider range of offences, notwithstanding the fact that his office cannot cope with the workload generated by the existing scheme.  To help with this, a pilot programme has  been announced to allow a wider range of prosecutors to conduct appeals into unduly lenient sentences on behalf of the Government- details of the costs involved in this have not been given.

Under the existing scheme, the number of sentences considered by the Attorney General’s Office has increased by 97% since 2010, up from 342 sentences to 674 in 2014. During the same period, referrals of cases found unduly lenient to the Court of Appeal rose 35%, from 90 to 122.  It’s not surprising that the success rate of complaints has fallen. Anyone at all can ask for a sentence to be reviewed - they don’t have to be involved in the case and only one person needs to ask. A quick email from any member of the public can trigger a review provided it’s sent within 28 days.

It’s true that the Conservative manifesto contained a proposal to enable a wider range of sentences to be challenged “to tackle those cases where judges get it wrong”. But with the resource pressures faced by the courts and prisons is this really a priority for the justice system?

Back in 2014, then Attorney-General Dominic Grieve seemed to think not, reminding Parliament that “the principle enunciated originally was that only a small number of cases in specified and very serious offences would ever be referred”. Last year his successor seemed much more enthusiastic about tackling anomalies in the kinds of offences which can be reviewed in order to boost public confidence. Today he declared that “It’s vital that the public are able to legally challenge custodial sentences and to make sure offences are being properly punished”.

If anything, there is a case that the Government should be looking to limit the way the scheme operates. Perhaps where the victim of the crime or someone else with a locus in the case has well founded concerns there is a case for review. But the problem with sentencing as a whole is less that it is too lenient and more that it’s too harsh.

 The Sentencing Council’s Crown Court Survey- now disbanded- found that in 2014 in assault and burglary cases, more sentences were above the recommended range than below it. Courts are under a legislative duty to impose a sentence within the offence range specified by sentencing guidelines, unless it is in the interests of justice to depart from this.  The vast majority of cases fall within the range but with burglary 3% of cases were above the range with less than 0.5% below it.

Of course a sentenced offender can appeal and a prosecution right to appeal could be seen to even up the scales.  But as Grieve said “there needs to be finality in sentencing and, of course, if many more cases are referred, that will place burdens both on the Court of Appeal in considering them and on my office in making the assessment”. It’s a burden the system could do without.