For most defendants the sentencing process is the beginning of the end when the case is drawing to a close and where they receive and accept their punishment and begin to move on with their lives.
But for some the pain and torment may not be over as an appeal may be looming.
Who Can Appeal?
The Attorney General (and Solicitor General) has the power to apply for leave to appeal sentences for some offences to the Court of Appeal where he or she is of the opinion that the sentence is ‘unduly lenient’.
The Attorney General may become aware of the case because the Crown Prosecution Service or other prosecuting authority has referred it for consideration, or because any other person has brought it to their attention, such as a victim or deceased family members.
What Offences Does This Apply To?
Most criminal offences sentenced in the Crown Court can be referred for consideration, it also applies to youths tried summarily in the Youth Court for indictable only offences.
A range of offences, sentenced in the Crown Court, including sexual, drugs and robbery offences.
Is There a Time Limit?
A notice of appeal must be filed with the Court of Appeal no later than 28 days after the sentencing hearing. You should note that there is no power to extend this limit so if you are not contacted within 28 days and informed that your case has been referred then you can assume it has not.
What Happens If There Is an Appeal?
There are several steps that are taken.
- The Attorney General decides whether the case is “unduly lenient”
- He exercises his discretion as to whether the case ought to be referred.
- The court considers whether to grant leave (or permission) to appeal.
- The court then considers whether the sentence was unduly lenient.
- Finally, even the court considers the sentence unduly lenient. It then decides whether it would be right in the exercise of its discretion to increase the sentence – see below.
What Is an Unduly Lenient Sentence?
It is not easy to spot such a sentence, as the sentencing exercise is always fact specific. Where there are sentencing guidelines in place it may be easier to identify unduly lenient sentences, but not always. The task is often much more difficult when there are no guidelines, or there is particularly powerful mitigation.
The Court of Appeal deemed that a sentence is unduly lenient:
‘…where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate. In that connection, regard must of course be had to reported cases and in particular to the guidance given by this Court from time to time in the so-called guideline cases’.
(Attorney General’s Reference No 4 of 1989 11 Cr. App. R. (S) 517 – Lord Lane CJ).
What Happens If a Sentence Is Found to Be Unduly Lenient?
Where the Court considers the sentence unduly lenient, it has a discretion as to whether to exercise its powers:
‘Without attempting an exhaustive definition of the circumstances in which this court might refuse to increase an unduly lenient sentence, we mention one obvious instance: where, in the light of events since the trial it appears either that the sentence can be justified or that to increase it would be unfair to the offender or detrimental to others for whose well-being the court ought to be concerned’
Next Steps
After sentencing, your legal team should give you a preliminary indication as to whether your sentence is likely or not to be appealed, but remember that ultimately, they have no control over this part of the process.
In the event of an appeal, a great deal of work can be done on your behalf to prepare your case for this next stage and thorough preparation can make all the difference.
If you are concerned about any aspect of criminal law or sentencing, then do not hesitate to contact us online or call us on 0161 827 9500 we are available 24 hours.