Bad Ref!
Are the number of
Attorney-General’s References
undermining their purpose?
Introduction
This article considers Attorney-General’s references for reviews of sentence. It will first look
at the development of the references scheme. Secondly, it will set out a brief guide to the
law and procedure relevant to references. Thirdly, it will consider whether the sheer volume
of references has undermined their original purpose.
Background
When Douglas Hurd, as Home Secretary, addressed MPs in the House of Commons during
the committee stage of the Criminal Justice Bill in 1988, he confidently predicted that there
would be “about a dozen” sentences reviewed in any given year. Getting reviews of
sentences onto the statute books was not an easy task and it met with considerable
opposition. The chief concern was that it would open the floodgates to unmeritorious
appeals and Mr Hurd’s prediction was no doubt intended to quell that fear. Yet it seems, with
the benefit of hindsight, that Mr Hurd was rather wrong and the opposition were rather right.
The Criminal Justice Act 1988 containing the relevant legislation received Royal Assent on
July 29, 1988, and was implemented on February 1, 1989.
In 2009 the Attorney General proceeded with 118 references to the Court of Appeal and
leave was granted in 102. The Court decided that 77 of these sentences were unduly lenient
and of these, 71 offenders saw their sentences increased by the Court of Appeal (66%).
Between 2001 and 2009 1,167 references were made to the Court of Appeal. That
averages at 130 per year - rather more than 12. Leave was granted in 998 of those cases.
855 of the sentences were found to be unduly lenient and, out of them, 723 of the sentences
were increased. 1
1
These statistics can be found on the Attorney-General’s website at www.attorneygeneral.gov.uk
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So, does this indicate that Attorney-General’s references are an essential part of the appeal
process which prevent serious miscarriages of justice? Or does it suggest that the
floodgates to unnecessary appeals have indeed been opened?
The Law
The Attorney-General may make references to the Court of Appeal for two reasons: (i)
where, after a person tried on indictment has been acquitted (in respect of the whole or part
of the indictment), he desires opinion on a point of law that has arisen in the case (s.36 of
the Criminal Justice Act 1972), or (ii) to request a review of sentence where it appears to him
that the sentencing of a person in the Crown Court has been unduly lenient (ss.35 and 36 of
the Criminal Justice Act 1988). This article will focus on the latter of these two types of
reference.
For completeness it should also be noted that, once the Court of Appeal have concluded
their review of a case referred to them, the Attorney General or the person to whose
sentencing the reference relates may refer a point of law involved in the in the sentence to
the Supreme Court for its opinion (s.36(5) CJA 1988).
Sentences which may be referred
The Attorney-General may refer cases (a) of a description specified in an order made under
s.35 CJA 1988 or (b) in which sentence is passed on a person (i) for an offence triable only
on indictment, or (ii) for an offence of a description specified in an order under that section
(s.35(3)).
It used to be that offences triable only on indictment could be the subject of references.
However, the statute has now been amended to incorporate some either-way offences and
combinations of offences. These are set out in the Criminal Justice Act (Reviews of
Sentencing) Order 2006 (S.I. 2006 No. 1116), Schedule 1.
Since the case of R. v. W., The Times, 16 March 1993, C.A. it has been determined that the
test for whether an offence is triable only on indictment for the purposes of s.35 rests on
whether it is so for an adult. It is irrelevant that a youth can be tried summarily on the same
offence.
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When sentences can be referred
A case may be referred where (i) it appears to the Attorney General that the sentencing of a
person in the Crown Court has been “unduly lenient”, (ii) where it is a case to which the Act
applies and (iii) where he has been granted leave by the Court of Appeal.
Powers of the Court of Appeal
The Court of Appeal will only review evidence that has been proved or admitted. It is not its
job to conduct a fact-finding exercise.
Having reviewed a sentence, the Court of Appeal then have the power to quash any
sentence passed and in place of it pass such a sentence as they think appropriate for the
case. This may not exceed the maximum penalty the Crown Court had available to it.
“Double Jeopardy”
Save for cases where an order was made under section 269(2) of the CJA 2003
(determination of minimum term in relation to mandatory life sentence) or under section
82A(2) of the Powers of Criminal Courts (Sentencing) Act 2000 (determination of minimum
term in relation to discretionary life sentences and certain other sentences), the Court of
Appeal has made a practice of allowing some discount for the “double jeopardy” of an
offender being sentenced twice for the same offence. Some guidance as to how this should
be applied was given in Attorney-General’s References (Nos 14 and 15 of 2006) [2007] 1 All
E.R. 718, C.A. Factors that will affect the amount of discount will include how much of a
custodial sentence a respondent has yet to serve, whether a custodial sentence is being
substituted for a non-custodial sentence and the age of the offender. At the upper end of the
range the discount will be at about 30 per cent.
Practitioners should be careful to ensure that the Court of Appeal does deal with this
principle where a sentence is increased having been found to be unduly lenient. It has
frequently been noted by the Editor of Criminal Law Week that judgments of the Court of
Appeal fail to mention the double jeopardy principle when dealing with references. It is thus
unknown whether it has been taken into account or not. It is submitted that a failure to
mention this is as fundamental as a judge in the Crown Court omitting to state that time
spent on remand will be taken into account. The difference with references is that there is
no appeal procedure from the Court of Appeal’s final decision.
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Procedure
The procedure to be followed for reviews of sentence are set out in Schedule 3 to the CJA
1988 and are supplemented by Part 70 of the Criminal Procedure Rules 2010.
In essence, notice of an application for leave to refer a case to the Court of Appeal under
section 36 must be given within 28 days from the day the sentence (or last of the sentences)
in the case was passed. The Registrar will then notify the defendant that the outcome of the
reference may make a difference to his sentence and may result in a more severe sentence.
The defendant will also be informed that he is entitled to serve a respondent’s notice. If he
chooses to do so (he only must do so if he wishes to make representations to the court or
the court so directs) it must be served on the Registrar and the Attorney General no more
than 14 after the application was served or after a direction to do so. The CPR also set out
the procedure where the Attorney General wants to vary or withdraw an application and
details the rights of respondents to attend hearings.
“Unduly Lenient”
Attorney-General’s Reference (No. 4 of 1989) [1990] 1 W.L.R. 41, C.A. set the threshold test
when determining which sentences may count as being “unduly lenient”. At page 45 Lord
Lane C.J. stated:
“The first thing to be observed is that it is explicit in the section that this Court may only
increase sentences which it concludes were unduly lenient. It cannot, we are confident, have
been the intention of Parliament to subject defendants to the risk of having their sentences
increased - with all the anxiety this naturally gives rise to - merely because in the opinion of
this court the sentence was less than the Court would have imposed. A sentence is unduly
lenient, we would hold, where it falls outside the range of sentences which the judge,
applying his mind to all the relevant factors, could reasonably consider appropriate …
However it must always be remembered that sentencing is an art rather than a science; that
the trial judge is particularly well placed to assess the weight to be given to various
competing considerations; and that leniency is not in itself a vice. That mercy should season
justice is a proposition as soundly based in law as it is in literature.”
However, the Court of Appeal has consistently hopped from foot to foot when deciding how
to apply that test. On one hand it seems eager to suppress the barrage of references that
have come its way. In R. v. Krivec (Att.-Gen.’s Reference No. 8 of 2007), The Times, April
27, 2007, C.A., for example, the Court of Appeal stated:
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“The oath taken by a judge to administer justice ‘without fear or favour, affection of ill-will’
extends to imposing what the judge concludes to be the appropriate sentence, without being
deterred by the fear of an Attorney’s reference. That is not to say that a judge should not pay
careful regard to sentencing guidelines, whether laid down by this court or by the Sentencing
Guidelines Council. But these are only guidelines. There will be cases where there is good
reason to depart significantly from the guidelines. In particular, this may be appropriate where
the facts of the offence diminish its seriousness in comparison to the norm, or where there is
particularly powerful personal mitigation. In such circumstances it is quite wrong for the judge to
refrain from imposing the sentence that he considers appropriate because of apprehension that
this may cause the Attorney General to intervene. We have no doubt that the Attorney General
recognises that a departure from the guidelines, even if it is substantial, is not of itself to justify
his intervention. The test for intervention is not leniency, but undue leniency. Leniency where
the facts justify it is to be commended, not condemned.”
Similar opinions can be found in the cases of Attorney-General’s Reference (No. 132 of
2001) (R. v. Johnson) [2003] 1 Cr.App.R.(S.) 190(41), C.A., (“…there is a line to be drawn,
and which should be borne in mind, between the leniency of a sentence in any given case
and a sentence which is ‘unduly’ lenient…” [at 24]), Attorney-General’s Reference (No. 16 of
2005) (R. v. Wilson) [2006] 1 Cr.App.R.(S.) 161(28), C.A. (“…the learned judge in passing
what he recognised was a lenient sentence, was exercising precisely that judgment and
discretion with which today judges are, generally, still endowed.” [at 20]), and R. v. Reynolds;
R. v. Lubwama; R. v. Webb; R. v. Honore; R. v. Slaney; R. v. Downing; R. v. Skerritt; R.
v. Thompson, The Times, March 21, 2007, C.A. (“And the function of section 36 of the 1988
Act is not to provide a general right of appeal to the prosecution. It is a means of ensuring by
judicious selection of cases, that issues of principle in relation to sentencing can be resolved,
and sentences corrected, in cases where public confidence in sentencing could otherwise be
undermined.” [at 17]).
Yet on other occasions the Court of Appeal has adopted a bizarre approach to the
interpretation of the test. In Attorney-General’s Reference (No. 192 of 2003) (R. v. James)
[2004] 2 Cr.App.R.(S.) 395(73), C.A., the Court found that a sentence of seven years’
imprisonment for manslaughter had been “entirely appropriate”. Yet, despite that conclusion,
the Court of Appeal substituted a custodial sentence of seven years with an extended
sentence of 21 months which meant that the respondent would be on license until seven
years from the date of the original sentence. It is submitted that this is not a case where the
original sentence was “unduly lenient” but actually fairly spot on. This view is supported by
the fact that the Court of Appeal commented that they had been minded to leave the
sentence well alone before hearing the respondent counsel’s submissions!
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Then there are cases where it seems that the meaning of “leniency” is entirely forgotten.
See, for example, Attorney-General’s Reference (No. 85 of 2003) (R. v. Eversham) [2004] 2
Cr.App.R.(S.) 371(68), C.A. where a 61-year-old of “excellent character” had his sentence
for an offence of death by dangerous driving increased from a suspended sentence of 12
months’ imprisonment suspended for two years to eight months’ immediate custody. This
was despite the fact that the nature of the dangerous driving had been a momentary loss of
attention, that the deceased was not wearing a seatbelt, that there had been a guilty plea at
the earliest opportunity, and that the respondent had suffered psychological and physical
injuries as a result of the incident.
Conclusions
The statistics indicate that a defendant who finds the sentence in his case referred to the
Court of Appeal should be nervous. The majority of references are given leave and the
majority of sentences are found to be unduly lenient and are increased.
There are many examples of the Court of Appeal objecting to the sheer number of
references that are made. However, this objection does not tally with the number of
sentences that are increased. If the Court of Appeal does think that a significant number of
references referred to it are unwarranted they should ensure that their dealings with them
reflect this.
It appears that the fears of the objectors to the introduction of Attorney-General’s references
may have been well-founded. There are undoubtedly safeguards in place i.e. the discretion
of the Attorney General to find that cases are unduly lenient and to decide to refer, and the
requirement of leave from the Court of Appeal. But was the Attorney General really using his
or her discretion appropriately when 1167 cases were referred between 2001 and 2009?
And can it really be correct that 855 sentences imposed during that period were unduly
lenient? It seems extraordinary that so many judges can have got it quite so wrong. If the
Attorney General and the Court of Appeal were right, what does this say about the judiciary?
In conclusion it is suggested that the problem in fact comes from an over-zealous AttorneyGeneral’s office taking this power much too far. The reference system was supposed to be a
safety net to protect the public from the odd mistake. Instead it has effectively become a
common appeal system in its own right.
Lydia Waine
Chambers of Michael Hubbard Q.C. and Karim Khail Q.C.
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