Tag Archives: court of appeal

News

Additions to unduly lenient sentence appeals

The prosecution, via the Attorney General, has the right to ask the Court of Appeal to consider whether sentences for certain offences are unduly lenient.

unduly lenient sentence

How does the scheme work?

Anyone can ask the Attorney General to consider whether a case has resulted in an unduly lenient sentence. If the Attorney agrees an appeal will be lodged within 28 days of that sentence and the court will consider the matter.

This scheme is essential protection against sentences that are too lenient.

We have previously posted about the scheme here.

Can it be used for any offence?

There is a list of offences that the unduly lenient sentence scheme applies to.  It is a relatively extensive list, but the government has announced that further offences are soon to be added to it.

How often are appeals lodged?

The Attorney General does not invite the court to interfere lightly.  Even though around 1,000 requests for a review are made each year only a fraction are referred to the court.  Typically between 100 and 150 sentences are increased each year.

In all cases where an appeal is heard, we will fight extremely hard to prevent any increase in sentence.

unduly lenient sentence

What offences are to be added to the list?

The following offences will be added:

  • Abuse of position of trust: sexual activity with a child (s.16 Sexual Offences Act 2003),
  • Abuse of position of trust: causing or inciting a child to engage in sexual activity (s.17 Sexual Offences Act 2003)
  • Abuse of position of trust: sexual activity in the presence of a child (s.18 Sexual Offences Act 2003)
  • Abuse of position of trust: causing a child to watch a sexual act (s.19 Sexual Offences Act 2003)
  • Inciting a child family member to engage in sexual activity (s.26 Sexual Offences Act 2003)
  • Sexual activity with a person with a mental disorder impeding choice (s.30 Sexual Offences Act 2003)
  • Causing or inciting a person, with a mental disorder impeding choice, to engage in sexual activity (s.31 Sexual Offences Act 2003)
  • Engaging in sexual activity in the presence of a person with a mental disorder impeding choice (s.32 Sexual Offences Act 2003)
  • Causing a person, with a mental disorder impeding choice, to watch a sexual act (s.33 Sexual Offences Act 2003)
  • Possession of indecent photograph of a child (s.160 Criminal Justice Act 1988)
  • Taking, possessing, distributing, publishing Indecent Photographs of Children (s.1 Protection of Children Act 1978)
  • Harassment: putting people in fear of violence (s.4 Protection from Harassment Act 1997)
  • Stalking involving fear of violence or serious alarm or distress (s.4A Protection from Harassment Act 1997)
  • Controlling or Coercive Behaviour in an Intimate or Family Relationship (s.76 Serious Crime Act 2017).

How we can help

If you have instructed VHS Fletchers in your case after your sentencing we will give you immediate advice if we have concerns that there may be a complaint that you have received an unduly lenient sentence.  Unfortunately, the process is out of our hands however and we have no control over whether or not a reference is made.

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.  Thorough preparation can make all the difference as to whether or not the court of appeal interferes with your sentence.

If you face an appeal on the basis that you received an unduly lenient sentence or are concerned about any aspect of criminal law or sentencing then do not hesitate to contact your nearest office to speak to a criminal law specialist.

attorney general's reference unduly lenient sentence

Alternatively you can use the contact form below.

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News

Proposals for a new sentencing code

Few people would disagree with the suggestion that sentencing law in England and Wales is a complete mess. The provisions that govern how a defendant is to be sentenced are both complex and disparate and to be found across a significant number of statutes.  The proposal is to replace the variety of provisions with a new sentencing code.

sentencing code

Why does this matter?

Research has shown that thousands of sentencing errors are made each year.  Many end up going completely undetected. Sometimes the mistakes make little difference in practice, but often the failure leads to unlawful sentences being imposed.

sentencing codeThe complexity of the statutory provisions is only one consideration.  There is also a large body of case law that mjust be taken into account. Again, we see many errors, most notably concerning protective orders where conditions imposed are often draconian and unnecessary.

Sentencing errors can lead to a failure to protect victims as well as unlawful or inappropriate sentences for defendants.  Any appeal proceedings that follow to put matters right will be costly.  Ironically the Court of Appeal often makes mistakes itself.

So, what is being proposed?

The Law Commission has proposed a ‘Sentencing Code’.  This will be a single Act of Parliament that will place all sentencing provisions in one place.

To achieve this, a two-stage process will take place:

  1. Minor amendments to existing statutes will be made to ‘tidy up’ the statute book.
  2. Immediately afterwards the provisions will be consolidated into one Act of Parliament (‘the sweep’).

This clean sweep of law will then lead to a single consolidated statutory provision resulting in a sentencing code that can be further amended in the future.

It is important to note that this procedure is a consolidating procedure  Apart from minor changes to legislation there will be no material change to existing law. There will be no increases to the existing sentences available to courts.

Will the sentencing code make a difference?

sentencing code
The Court of Appeal

Given the effect of this is merely to move sentencing law into one single statute, it is a reasonable question to ask whether this will make a difference.

The Law Commission carried out extensive testing of the proposals.  It was demonstrated that having a single reference point for sentencing leads to fewer errors. Errors will continue to be made, for all manner of reasons, but we should see a massive reduction.

When will these changes happen?

The first piece of legislation was laid in the House of Lords last week, and the provisions could be law in a matter of months. Much will depend on the legislative timetable and the uncertainty of the political situation at the present time.

When the relevant legislation is enacted, there will need to be a period of training for lawyers and judges before the new statute takes effect so it seems unlikely that the provisions will come into effect before mid 2020 at the earliest.

What happens until then?

Until that time we will continue to be alert on your behalf.

Our lawyers take great care to ensure lawful and proportionate sentences are passed and will not hesitate to take corrective action where that is required.

We prefer to work hard to avoid mistakes in the first place to avoid problems later.  As a result all of our advocates are highly trained in the complexities of sentencing law. Our ethos is  that we must ‘get it right first-time’.

If, however, you believe that your sentence before either the Magistrates’ Court or Crown Court was unlawful or excessive then please contact us immediately.

Contact a specialist criminal lawyer

The earlier we are involved in your case, the greater the opportunity for us to ensure that everything goes right at each step of your case.

If you are arrested or know that the police wish to speak to you about a criminal offence then make sure you insist on your right to free and independent legal advice.

The advantages of such early advice legal advice can be found here.

This will allow us to make sure that you are doing the right thing by answering police questions or exercising your right to silence.

If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case.

Legal aid may well be available to fund your defence at court.

We have offices across the East Midlands and will happily travel across the country to provide representation for all football related offences.

new sentencing code
VHS Fletchers offices across the East Midlands

Alternatively you can contact us using the form below.

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News

An appeal to the Court of Appeal against a Crown Court sentence

It is possible to appeal against a Crown Court sentence to the Court of Appeal.  The appeal process can be complicated depending on the individual case, so this article can only ever outline the basics of the appeal process.

If you require advice in relation to your specific appeal then our contact information can be found here.

You should know the range of sentences likely in your case

In cases that we deal with on behalf of clients facing Crown Court proceedings we will have ensured that all of our clients are given an early indication of the likely sentence range.   This advice will include the potential sentence depending on whether there is a guilty plea or conviction after trial.

appeal against a crown court sentenceIn some cases we will be able to be relatively precise as to what might be expected.  In others cases, however, the range can be quite broad.  In some rare cases it can be ‘anyone’s guess’ only because the case is so unique.  Generally speaking, mainly where there are sentencing guidelines in place, we are very good at preparing our clients for the likely outcome.

Unfortunately, things do not always go to plan. For example, evidence may change during the case making it a lot more serious than originally thought.  Of course, some clients receive the benefit of the evidence changing in a way that favours them.  Sometimes the Judge may take a different view of the case, or, and this happens despite what appear to be clear sentencing guidelines, the Judge falls into error and makes a mistake when sentencing.

First steps in an appeal against a sentence

In all cases, following sentence, there should be clear advice on appeal. This will normally be given verbally, but you can have it in appeal against a crown court sentencewriting if you request that. In more complex cases it is usual for the advocate to set out in writing why an appeal is or is not appropriate.

If your Crown Court advocate is able to provide a positive advice on appeal, then you will have the opportunity to discuss that with us.  We will hen take the necessary next steps on your behalf.

In cases where an appeal is not thought to be viable, again we will provide full advice to ensure that you understand the reasons for this decision.

What are the grounds for appeal against a Crown Court sentence?

appeal against a crown court sentence to court of appealThere is a margin of appreciation in sentencing.  This means that the Court of Appeal will not interfere merely because it would have chosen to sentence differently.

There are, perhaps surprisingly, thirteen distinct grounds for appeal.  They break down conveniently into two broad labels.  For the Court of Appeal to intervene the Crown Court sentence must be either

  • Wrong in principle; or,
  • Manifestly excessive

All appeals are considered initially by a Single Judge.  They will decide whether the case appears to have merit or not. If that Judge refuses leave to appeal on the basis that they believe the case is not properly arguable we will discuss the next steps with you.

If I am told not to appeal against a Crown Court sentence, can I ignore that advice?

A person can chose to ignore the advice received.  Any such decision should be discussed with us in advance because there are risks in proceeding with an appeal that is without merit.

The Court of Appeal can impose costs.  In some cases it will also make a ‘loss of time direction’.  This means that a release from prison at the end of any sentence will be delayed.  This is delay is often in the region of 14 to 42 days.

How long will the appeal take?

The length of time will depend on the complexity of the case and the listing requirements of the court.  Priority is also likely to be given to those facing shorter sentences that can be successfully appealed.  In some cases where a person has received a short prison sentence, there is a procedure to expedite an appeal.  In some cases, these can be heard within a few days.

Aside from such cases, appeals against a Crown Court sentence will be typically heard within six months of being lodged with the court.

Can I get bail pending an appeal against a Crown Court Sentence?

Bail is seldom granted in cases before the Court of Appeal.  The usual remedy to any injustice is for the Court to expedite the appeal hearing in cases where this approach is merited.

Where will the appeal be heard?

Most appeals are held at the Court of Appeal in London, although appeal against a crown court sentenceoccasionally the court sits at regional Crown Court centres. If you are in custody, you will typically be present via video-link, or if on bail you can attend the hearing in person.

Court of Appeal judges will hear the case, and you will be represented by an advocate at the hearing. In some cases, the prosecution is also present, but not always.

When will I find out the result of my appeal?

In most cases, the result is announced at the end of the hearing. If complex issues are involved, then the decision might take a few weeks longer.

If I wasn’t represented by VHS Fletchers can you advise on appeal?

The simple answer is ‘Yes’.  We would be happy to discuss your case. In some cases, legal aid will be available for the provision of this advice.  This will be subject to a means and merits test.

Contact a Criminal Law Specialist

Whether you wish to discuss an appeal against a Crown Court sentence or wish any advice relating to any matter of criminal law then please contact your nearest office.

Alternatively, use the contact form below.

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News

Attorney General’s Reference of an Unduly Lenient Sentence

Can My Sentence Be Increased?

The sentencing process is the beginning of the end for many defendants.   They can receive and accept their punishment and prepare to move on with their lives at the conclusion of any sentence imposed.  For some, however, the anguish is not over as an appeal against the length or type of sentence might be looming because it is arguably an unduly lenient sentence.

Who Can Appeal?

attorney general's reference unduly lenient sentenceThe Attorney General and the Solicitor General have the power to apply for leave to appeal sentences for some offences to the Court of Appeal.  This will be where the sentence is viewed as ‘unduly lenient’.

The Attorney General may become aware of any given case in different ways.  it might be because the prosecution has referred it for consideration.  Alternatively it might be because any other person, such as the victim or a member of the public, has brought it to their attention.

What Offences Does This Apply To?

There is a long list of offences which may be referred for consideration by the Court of Appeal.

  • Any offence triable only on indictment.  These will include, for example, murder or robbery. The provision also includes youths who are tried before the Youth Court for indictable only offences.  More and more frequently, this will include serious sexual offences.
  • A range of offences that are sentenced in the Crown Court.  These will include offences of violence, sexual offences, drugs, immigration, slavery and trafficking.
  • A range of terrorism 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.  There is no power available to extend this time limit.

What Happens If There Is an Appeal?

attorney general's reference unduly lenient sentenceThe Court will apply a three stage procedure when considering an unduly lenient sentence. The court has expressed its role as follows:

‘We first of all consider the question of whether to grant such leave. It is important in approaching such matters to understand the safeguards that Parliament thought were appropriate to build in to the departure from what was then the law that there no question of increasing a sentence arose to the new procedures that enabled such a reference to be made.

Those new procedures required a number of steps to be taken before any such sentence could be increased. The first was that the Attorney General had to consider the matter and decide for himself whether he considered the sentence to be unduly lenient.

The second was that he then had to exercise his discretion as to whether there should be a reference because he was given a power to refer and there was no requirement that he should do so.

The third matter was that the court then had itself to consider whether to accept and grant leave for the referral.

Thereafter the court has to consider whether it considers the sentence to be unduly lenient and the final safeguard is that the court has to determine for itself whether, even if it does consider it unduly lenient, it would be right in the exercise of its discretion to increase that sentence. Each one of those steps was clearly a step that Parliament thought to be a necessary safeguard in changing the law.’

What Is an Unduly Lenient Sentence?

It will not be easy to spot such a sentence.  This is because the sentencing exercise is always fact specific. In cases where there are sentencing guidelines in place it may be easier to identify unduly lenient sentences.  This will not always be the case however.  The task is often much more difficult when there are no guidelines.  Alternatively it may be a case where there is particularly powerful mitigation.

The Court of Appeal test for undue leniency is:

‘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.’

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

If you have instructed VHS Fletchers in your case after your sentencing we will give you immediate advice if we have concerns that there may be a complaint that you have received an unduly lenient sentence.  Unfortunately, the process is out of our hands however and we have no control over whether or not a reference is made.

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.  Thorough preparation can make all the difference as to whether or not the court of appeal interferes with your sentence.

If you face an appeal on the basis that you received an unduly lenient sentence or are concerned about any aspect of criminal law or sentencing then do not hesitate to contact your nearest office to speak to a criminal law specialist.

attorney general's reference unduly lenient sentence

Alternatively you can use the contact form below.

Contact