Prosecution Appeals Against Sentence: The First Five Years
| DOI | http://doi.org/10.1111/j.1468-2230.1994.tb01972.x |
| Published date | 01 September 1994 |
| Author | Stephen Shute |
| Date | 01 September 1994 |
Prosecution Appeals Against Sentence: The First
Five Years
Stephen Shute
*
Introduction
The United Kingdom was slow to recognise the advantages of a prosecutorial right
of appeal against unduly lenient sentences. As long ago as 1892, the idea had been
supported by the judiciary in a report to the Lord Chancellor,’ but when the
Criminal Appeal Act 1907 gave defendants the right to appeal against over-severe
sentences, reciprocal rights of appeal were not granted to the prosecution.2
Indeed,
so
outlandish did the notion seem to many British lawyers that, over half a
century later, the campaign group Justice was able to assert confidently: ‘we are
not aware of any demand for such a right from any responsible source, nor do we
recommend it.’3 Within a few years, however, opinions began to change. In the
early 1970s, Parliament allowed the prosecution to appeal against acquittals4
and, by the mid-l980s, public opinion
-
so
often a catalyst for reform in the
criminal justice field
-
had swung in favour of a parallel restructuring
of
sentencing. This was prompted in large part by the extensive publicity given to
eccentric sentences such as the f2,000 fine imposed at Ipswich Crown Court by
Judge Richards on a businessman convicted of raping a hitchhiker who the judge
claimed had been ‘guilty of a great deal of contributory negligence’ in thumbing a
lift home,5 the 12-month sentence (eight months of which was suspended)
imposed by Judge Price at Leeds Crown Court on a man who raped and indecently
assaulted a six-year-old girl6 and the 18-month suspended sentence passed for
attempted rape in 1983 by Judge Argyle QC.’ Leading academics were also
advocating reform. Two important articles, written in 1972 and 1987, warned of
~ ~ ~~ ~~
*Fellow of Corpus Christi College, Oxford.
The author would like to thank Roger Hood for his helpful comments
on
an earlier draft of this article.
1
See
Report ofthe Judges
to
the Lord Chancellor
1892
(1 894 (127)
LXXI),
which proposed that in cases
of ‘extreme
or
systematic inadequacy
of
sentence’ the Attorney General should be allowed to apply for
an increase in sentence whether the accused had appealed
or
not.
2
After public concern at the conviction
on
dubious identification evidence
of
Adolf
Beck,
the statute
also gave defendants the right to appeal against conviction.
3
Criminal Appeals
(1964)
para
99.
The Interdepartmental Committee
on
the Court of Appeal (the
Donovan Committee) (Cmnd
2755),
which reported in
1965,
was also against granting a right of
appeal to the prosecution, arguing (para
196)
that ‘it would be a complete departure from
our
tradition
that the prosecutor takes
no
part,
or
the minimum part, in the sentencing process.’
4
See
s
36
of the Criminal Justice Act
1972,
which allowed the Attorney General to refer to the Court of
Appeal any point of law arising out of the acquittal of a defendant tried
on
indictment.
5
See
The Times,
6
January
1982.
The Labour MP Jack Ashley was
so
concerned by this
case
(see
The
Times,
12
January
1982)
that he resolved to reintroduce his Bill to allow the prosecution to appeal
against excessively lenient sentences which had been defeated in the House of Commons by
293
votes
to
30
in
1978
(see HC Deb vol
944,
cols
242-250, 14
February
1978).
6
See
The Times,
15
and
16
December
1982.
The sentence prompted the Conservative MP Anthony
Nelson to ask a question about the case
in
the House of Commons. For
Mrs
Thatcher’s reply and the
Speaker’s subsequent intervention,
see
HC Deb
vol
34,
cols
123- 124, 14
December
1982.
7
See
7he Daily Express,
3
December
1983
and
The Guardian,
6
December
1983.
This case was
also
discussed in the House
of
Commons. For the
Labour
MP Dale Campbell-Savours’ question and the
Solicitor General’s reply, see HC Deb vol
50,
col
13,
5
December
1983.
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the dangers of allowing manifestly inadequate sentences to stand.8 Unduly lenient
sentences, it was argued, damaged public confidence
in
the criminal justice
system, dulled the deterrent effect of criminal sanctions, left the public perilously
exposed to dangerous offenders, weakened the morale of the police, tempted
disgruntled victims to take the law into their own hands and made a coherent
sentencing policy harder to a~hieve.~ When senior members of the judiciary
-
echoing the approach taken by their brethren nearly a century earlier
-
added their
weight to the reform proposals,’0 legislation became inevitable and, after one
false start,
I
a system of prosecutorial appeal against sentence finally reached the
statute book with the enactment of section 36 of the Criminal Justice Act 1988.12
Like its companion scheme of appeal against acquittal, section 36 did not give
the prosecution unfettered access to the Criminal Division of the Court of Appeal.
Instead, as a way of curbing possible excessive prosecutorial zeal and ensuring that
unwarranted appeals were not brought, the section required all appeals to be
instigated by the Attorney General.13 Similar concerns about a possible abuse of
the section lay behind four other restrictions placed on the 1988 scheme. First,
only Crown Court sentences were brought within its purview. Second, the
Attorney General’s power of referral was confined to ‘indictable only’ offences,
with sentences for summary offences and for offences triable either way excluded
from the scheme.I4 Third, the power of referral applied solely to
unduly
lenient
sentences: merely lenient sentences were exempted. Fourth, the Attorney General
was required to obtain leave from the Court of Appeal before a case could be
brought to a full hearing. Once a case reached that stage, however, the Court was
granted more extensive powers than in relation to appeals against acquittal.
Whereas under the 1972 Act the Court’s decision could not affect the actual
outcome of the case, the 1988 Act allowed the referred sentence
to
be quashed and
replaced with any sentence that the Crown Court had the power to pass. The Court
8
See Thomas, ‘Increasing Sentences
on
Appeal
-
A
Re-Examination’
[1972]
Crim LR
288,
and
Spencer, ‘Do We Need a Prosecution Appeal Against Sentence?’
(19871
Crim LR
724.
9
See also the Australian case of
H
v
Osenkowski
(1982)
5
Australian Criminal Reports
394,
where King
CJ
argued (at p
394)
that the proper role for prosecution appeals against sentence was ‘to enable the
courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic
views of individual judges as to particular crimes
or
types of crimes to be corrected, and occasionally
to
correct a sentence which is
so
disproportionate to the seriousness of the crime as to shock the public
conscience.
’
10
Lord Lane, Lord Denning, Lord Hailsham and Lord Ackner all spoke
in
favour of change
in
debates in
the House of Lords (HL Deb
~01489,
cols
326, 330, 334
and
337, 26
October
1987).
Lord Roskill
also supported reform (see HL. Deb vol
486,
col
1284, 27
April
1987).
11
The Government’s first attempt at reform, clause
22
of the Prosecution of Offences Bill, was defeated
by
140
votes to
98
at the committee stage of the House of Lords in January
1985
(see HL Deb
vol459,
cols
386-406, 24
January
1985).
This clause, like the
1972
scheme for appeal against acquittals,
would have given the Court of Appeal an advisory role only, leaving the offender’s sentence
unaffected by the appeal.
12
The scheme established by
s
36
extends to England, Wales and Northern Ireland. A system of
prosecutorial appeal against sentence in Scotland arrived somewhat belatedly with the enactment of
s
42
of the Prisoners and Criminal Proceedings (Scotland) Act
1993.
13
s
36(1)
states: ‘If it appears to the Attorney General
-
(a) that the sentencing of a
person
in
a
proceeding in the Crown Court has
been
unduly lenient; and
(b)
that the case is one to which this Part
of this Act applies, he may, with the leave of the Court of Appeal, refer the case to them for them to
review the sentencing of that person; and
on
such a reference the Court of Appeal may
-
(i) quash any
sentence passed
on
him in the proceeding and (ii) in place of it pass such sentence as they think
appropriate for the case and
IS
the court below had power to pass when dealing with him.’ Under
s
36(9)(a),
when the section is applied in Northern Ireland, any reference to the Attorney General is to
be construed as a reference to the Attorney General for Northern Ireland. The section was
implemented by the Criminal Justice Act
1988
(Commencement No
5)
Order
1989,
SI
1989
No
I.
14
See
s
35(3)
of the Criminal Justice Act
1988.
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