The Unduly Lenient Sentence Scheme: When a Sentence Can Be Increased by the Court of Appeal

What Is an Unduly Lenient Sentence?

A sentence may be unduly lenient where it falls outside the range of sentences that a judge could reasonably have imposed after applying the law, sentencing guidelines and relevant facts.

If the Court of Appeal accepts the referral and finds the sentence unduly lenient, it may replace the original sentence with a different one that the Crown Court had power to pass.

Instead, the question is whether the sentencing judge made a clear error in principle or imposed a sentence that is manifestly inadequate given the seriousness of the offence. 

Examples of potential errors include: 

• Failing to apply the correct sentencing guidelines 
• Giving excessive weight to mitigating factors 
• Overlooking significant aggravating factors 
• Misinterpreting relevant law or evidence 

Where such errors occur, the sentence may be considered unduly lenient.

The Legal Basis for the Unduly Lenient Sentence Scheme

The Unduly Lenient Sentence Scheme was introduced under the Criminal Justice Act 1988.  

If the Court of Appeal accepts the referral and finds the sentence unduly lenient, it may replace the original sentence with a different one that the Crown Court had power to pass.

The scheme was introduced to maintain public confidence in the criminal justice system and ensure that serious offences receive appropriate punishment.  

The scheme is limited. It does not apply to every offence, and referrals must be made within a strict time limit.

Which Offences Can Be Referred to the Court of Appeal?

Not all offences fall within the scope of the Unduly Lenient Sentence Scheme. 

The scheme generally applies to: 

• Serious indictable offences heard in the Crown Court 
• Certain specified either-way offences 

Examples often include: 

• Serious sexual offences 
• Violent offences 
• Serious fraud and financial crime 
• Terrorism offences 
• Child cruelty offences 

Whether a case qualifies depends on the offence, the court and the legislation in force.

What Happens After a Sentence Is Referred?

If the Attorney General or Solicitor General refers a sentence, the case goes to the Court of Appeal.

At the hearing, the Court of Appeal will consider: 

• The original sentencing remarks 
• The relevant sentencing guidelines 
• The circumstances of the offence 
• Aggravating and mitigating factors 

Both the prosecution and the defence may make submissions. 

The defence can argue that the original sentence was within the proper range and should not be increased.

How the Court of Appeal Decides Whether a Sentence Is Unduly Lenient

The Court of Appeal applies a strict legal test. 

The question is whether the sentence imposed by the trial judge fell outside the range of sentences which could reasonably have been imposed.  

The question is whether the sentence was outside the range reasonably open to the sentencing judge.

Possible outcomes include: 

Sentence Increased

If the Court of Appeal decides the sentence was unduly lenient, it may increase the sentence.

Sentence Unchanged

If the Court of Appeal decides the sentence was within the proper range, it will not increase it.

Rare Outcomes

In exceptional cases, the court may substitute a different form of sentence if this is necessary to correct an error in principle.

How a Criminal Defence Solicitor Can Help

An Unduly Lenient Sentence referral can be serious. A defendant may face the risk of a longer sentence after the original sentencing hearing has already taken place.

Experienced criminal defence solicitors can assist by: 

• Analysing the original sentencing decision 
• Preparing detailed legal submissions 
• Identifying errors in the Attorney General’s arguments 
• Presenting mitigation before the Court of Appeal 

The defence will usually focus on showing that the sentencing judge applied the law properly and imposed a sentence that was reasonably open on the facts.

Speak to Experienced Criminal Defence Solicitors

If your sentence has been referred, or you have been told that a referral may be made, legal advice should be taken urgently.

The timetable is short, and the Court of Appeal will consider detailed legal arguments about the sentence.

Our Serious and Complex Crimes solicitors can review the referral, advise on the risks and prepare your response.

Contact our team today to discuss your situation and obtain expert legal guidance.