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28 August 2019

The Conservative Party’s long awaited amendment to the ULS

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By Sangeeta Bedi

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It comes as no surprise that the issue of the unduly lenient sentences scheme (the ‘ULS’) is once again subject to amendment, as reported by the Daily Telegraph on 13 August 2019 (“Victims of stalking and abuse get right to appeal ‘lenient’ jail sentences”).  The Conservative Party have consistently said that they would extend the scope of the scheme, including this promise in their campaign manifestos in both 2015 and 2017.  Indeed, the Solicitor General has suffered much criticism from his political colleagues for failing to act swiftly enough in changing it.

The ULS scheme, created by the Criminal Justice Act 1988, is currently designed so that any person can write to the Attorney General and ask them to consider whether a sentence was unduly lenient.  It is not, as the Telegraph suggest, only the victim who has this right, as a request can be made by the CPS, an MP or indeed any member of the public.  It is also not an appeal but a request to the Attorney General to review the sentence.  It is for the Attorney General to decide whether to refer the matter to the Court of Appeal to consider this further.

The word “unduly” is key; it is not sufficient for the sentence to merely be “lenient”. The sentence must be such that it falls outside of the range of sentences which the judge, applying his or her mind to all the relevant factors, could reasonably consider appropriate. If the Attorney General believes that this test would be met they then issue proceedings to the Court of Appeal to consider whether indeed the sentence was ‘unduly lenient’. In 2017, the Parliamentary Briefing confirmed that, at that time, only 14% of such appeals were successful.

A press release by the Telegraph on 13 August 2019  suggested that the new proposal will include all offences where “any jail term [is] imposed”.  The Act does allow for further offences to be added to these specified offences by way of statutory instrument, however, this is limited to either way offences only. This would be a massive extension to the principle of the ULS, particularly if it included summary only offences, for example.  The ULS has always been reserved for serious cases, consisting of indictable only sentences, and some specified either-way offences.

When the scheme was created it was believed that the ULS should only be reserved to a small number of cases. The Conservative party have consistently stated that the original approach left some “anomalies” as it included some, but not all, either way offences. In 2017, the Conservative party took steps to incorporate certain terrorist offences into the scheme.  It was therefore not previously foreseen that all offences susceptible to a “jail term” would be incorporated into the ULS, the Attorney General, commenting in 2016, for example that there needs to be a clear line “between cases within the scheme and those outside in a logical and easily understandable place”.  This was not indicative of a sweeping amendment to allow the majority of criminal cases.

The concerns  held by defence lawyers of the ULS scheme, as set out in the Parliamentary Briefing of 2017, will largely remain the same. Mainly, there is the fear that it is allowing the prosecution the right to a ‘second bite of the cherry’ to deal with defendants.  Sentencing is not an exact science but guidelines and case law is meant to act as a guide to those carrying out this task and there should be some sense of finality for those facing their fate.  I also believe that there is also an inherent risk that the credibility of the judiciary will be tarnished.  In 2016, the Attorney General commented that “we are talking about a very small minority of cases where judges err in this way”. Hopefully the current political arena does not skew this mentality.

If the Telegraph is correct, some of the offences proposed to be included in the extended ULS is also concerning. It lists:  “Careless driving, domestic abuse in the form of coercive and controlling behaviour, stalking and possession of indecent child images”.  These proposed offences, largely driven it seems through social and public pressures (for example the possession offence arising from the Vanessa George case), are very much victim-led offences.  Therefore, it is foreseeable, if the ULS was to apply to such offences, there would be regular attempts for sentences to be reviewed in such cases.  Whilst these victims may feel unsatisfied with the sentence passed, this may not always mean that the sentence in itself was unduly lenient.  Whilst several individuals may therefore complain, in most cases they are seldom likely to be successful, in which case there will be unnecessary delay and distress caused to all involved.

Resource pressures must also be considered.  The Attorney General’s office is required to deal with each request, and make the referral, if it sees it right to do so, all within 28 days of the initial sentence being handed down.  If all either-way offences are to be included, this is likely to hugely increase the burden on the Attorney General’s office and may ultimately impact on their ability to do this role properly within the strict time constraints in place.

The fact that the Attorney General’s role is a political one is also a concern; the concern being that greater public pressures may ultimately impact on his decision to refer cases to the Court of Appeal.  The Court of Appeal will still have to grant permission to the Attorney General to appeal, but is likely to face criticism or lack of public support for failing to take an active role in a ‘new and improved’ ULS scheme. It will be interesting to see how the scheme is ultimately amended and whether this substantively deals with the public criticisms of it. Indeed, its amendments may be an indicator of how the ULS will be used in practice.  Will it be used as a political tool to ensure the goodwill of the public or is its extension truly necessary in the interests of justice?

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