Every so often, like most people, I sit down to have a quiet read of my newspaper and, having scanned a court report on the prosecution of a serious crime, suddenly find myself outraged by what appears to be a let-off for the criminal. ‘Litter-picking’ instead of ‘locked-up’. ‘Fine’ instead of ‘fixed-term prison sentence’.
Somewhat surprisingly, it is now 30 years since the law was changed to allow the Attorney-General (the government’s chief legal adviser) to refer a case to the Court of Appeal if she or he thinks the criminal has been given an ‘unduly lenient sentence’. Less surprisingly, “it has made my blood boil” is not one of the legal reasons for referral, although it might provide the initiative to do something about it rather than just explode with exasperation.
There was considerable opposition to this legal change, mainly because the procedure offends against the principle of double jeopardy, the legal principle which says a person cannot be tried for the same crime twice.
It’s a widely adopted principle – for example, in the USA it is written into the Constitution as the Fifth Amendment - designed to protect against judicial tyranny in which citizens could be repeatedly prosecuted for the same offence however often a jury had found them innocent. But, as with many such principles, it is the ‘exceptions that prove the rule’.
There were clearly cases where "new, compelling, reliable and substantial evidence" had come to light and it would be outrageous for individuals to remain unprosecuted of very serious criminal offences just because they had been acquitted at a previous trial when that evidence had not been available.
I’m pleased to say that, in 2005, the Labour government – with prominent leadership of the initiative by my good friend David Blunkett – changed the law to allow the possibility of a second prosecution. Despite all the loud opposition, the sky has not fallen down and the sun has not stopped shining. I would be very surprised, if now, anyone would want to reverse the changes.
The highest profile example of the new law in practice was the renewed prosecution and successful conviction of two of the murderers of Stephen Lawrence, an innocent young man, with his whole life ahead of him, who was brutally attacked and stabbed to death just because he was black. There could have been no better example to illustrate why the change in the law was right.
When considering sentences after convictions for serious criminal offences, judges are required to pay regard to sentencing guidelines, determined by a Sentencing Council. Of course, there are many factors to be taken in to account in determining the proper sentence in respect of a particular crime and a particular criminal and, for the most part, the judges get it right.
But, it’s when they don’t that our hackles rise.
Only certain types of cases can be reviewed – they are ones like convictions for murder, rape, robbery, serious fraud or drugs-related, child cruelty, hate and terror crimes.
But, you may be surprised to learn that anyone can ask for a sentence to be reviewed. You don’t have to be involved in the case. Only one person needs to ask for the Attorney-General to act. But you have just 28 days after sentencing to make your complaint. [You can find out more at https://www.gov.uk/ask-crown-
In fact, more people are making challenges under the Unduly Lenient Sentence scheme than ever before. Last year, 943 referrals were made to the Attorney-General’s Office, compared with 837 the year before. Just to put this in context, there were more than 80,000 cases in the Crown Courts last year.
Of these, the Attorney-General referred 173 cases to the Court of Appeal, compared with 190 in 2016. Of those, 137 sentences (79%) were increased compared with 141 (74%) the year before. A record number (58) of sentences for rape and sexual offences were increased by senior judges last year because they were too lenient.
The Court of Appeal will only act in relation to a sentence only where it is unduly lenient (not simply lenient), because it falls outside the range of the sentencing guidelines.
So, next time you find your hackles rising and your blood boiling because you think a criminal has got off far too easily, and with a sentence less than the guidelines suggest, don’t just explode in exasperation, write straightaway to the Attorney-General. You might make history.