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Jean-Yves Gilg

Editor, Solicitors Journal

Consideration of unduly lenient sentences

Consideration of unduly lenient sentences


Celia Marr discusses the extent of the Court of Appeal's power when passing new sentences, recent legislation on psychoactive substances, and the proposed Criminal Finances Bill

In Attorney General's Reference (No 79/2015), the Criminal Division of the Court of Appeal considered what new material it was able to take into account in passing a new sentence where the initial sentence was found to be unduly lenient.

The facts of the case were as follows. The victim was assaulted as she walked home at night. The defendant was wearing a full burka, so his identity was hidden. The defendant struck the victim's head and eye with a rock carried in a plastic bag and then tried to strangle her. Approximately two months later, the defendant was arrested, having been seen in a similar disguise, and was found to be carrying a hammer in a plastic bag. He pleaded guilty to attempted grievous bodily harm with intent (contrary to section 1(1) of the Criminal Attempts Act 1981) and to carrying an offensive weapon (contrary to section 1(1) of the Prevention of Crime Act 1953). Sentencing proceeded on the basis that the attack on the victim resulted from a chance encounter, and the defendant was sentenced to a total of four years and four months' imprisonment.

Subsequently, however, it came to light that the defendant was known to the victim and that the victim had been deliberately targeted as a result of a previous argument between them. The issues for determination were:

  • Whether the initial sentence had been unduly lenient; and

  • If so, whether, in passing a new sentence, the Court of Appeal had the power to take into consideration the new evidence that the defendant had deliberately misled the court, specifically targeted the victim, and committed prior violence against the same victim, as features of the offending.

Adverse material

Having considered the case and concluded that the original sentence was unduly lenient, the court considered the second issue. As a starting point, in giving judgment the court observed that 'it is beyond doubt that very frequently material is placed before this court to justify a conclusion that the offender need not be dealt with more severely by reason of material not available to the judge such as his progress in custody since the passage of the original sentence. Material in his favour is considered, but the issue which arises is whether material that is adverse to the offender can be considered.'

In considering this question, the court referenced the decision in Attorney General's Reference (No 74/2010), in which Lord Justice Hooper, giving the judgment, stated that 'we take the view that we do have the power to take into account matters adverse to the defendant when deciding what is the appropriate sentence'. The Court of Appeal noted that the point had not been fully argued in that case, adding that 'the proposition, however, has now been the subject of argument before us and, in our judgment, turns upon the proper construction of section 36(1)(b)(ii) of the [Criminal Justice Act 1988]'. The Court of Appeal agreed with Hooper LJ's comments and rejected the case made on behalf of the defendant that the court could only consider features which mitigated the impact of the sentence already passed.

The court ruled that, on a proper reading, the authority to review a sentence granted by section 36 of the 1988 Act empowered a court to declare a sentence to be unduly lenient. Once such a declaration had been made, the court should then pass a sentence commensurate with all of the circumstances, including any material adverse to the defendant that was not available to the original sentencing judge. The Court of Appeal stated that 'in our judgment it is beyond question that this court must… proceed on the up?to?date information'.Accordingly, having found the original sentence to be unduly lenient and taking into account the newly availably material, the original sentence was quashed and substituted for a total extended sentence of seven years, with an extended licence period of four years.

Psychoactive substances

The Psychoactive Substances Act 2016 came into force on 26 May 2016, making it an offence to produce, supply, offer to supply, possess with intent to supply, possess on custodial premises, import, or export psychoactive substances - that is, any substance intended for human consumption that is capable of producing a psychoactive effect. The maximum sentence on conviction will be seven years' imprisonment.

Psychoactive substances are defined in section 1 of the Act as any substance that 'is capable of producing a psychoactive effect in a person who consumes it' and is not an 'exempted substance', which are listed in schedule 1 to the Act. Legitimate substances, such as food, alcohol, tobacco, nicotine, caffeine, and medical products, are exempt from the scope of the offence, as well as controlled drugs, which continue to be regulated by the Misuse of Drugs Act 1971.

After consultation, the Advisory Council on the Misuse of Drugs decided that alkyl nitrites (more commonly known as poppers) do not fall
within the scope of the current definition of psychoactive substances as set out in the Act. Meanwhile, guidance to retailers warns that they should be cautious of the sale of nitrous oxide (commonly referred to as laughing gas), which has several legitimate uses, where they are concerned that the intention of the customer is to stimulate a 'legal high'.

The Act also includes provision for civil sanctions, including prohibition notices and premises notices, to enable the police and local authorities to adopt a graded response to the supply of psychoactive substances in appropriate cases. Finally, the Act provides powers to stop and search persons, vehicles, and vessels, enter and search premises in accordance with a warrant, and seize and destroy psychoactive substances.

The Act has already come under fire for being difficult both to interpret and to enforce. It is by no means clear at this stage what substances will be treated as falling within its remit. The Association of Chief Police Officers (ACPO) has stated that a 'legal high' should be 'treated like a controlled drug until proven otherwise' and further guidance from ACPO is expected to follow.

The Act has been described by some as draconian and has also been criticised as likely to have relatively little impact. Estimated at somewhere between ten and 100 a year, the number of deaths caused by 'legal highs' is significantly less than those caused by alcohol and by substances governed by the Misuse of Drugs Act.

Criminal Finances Bill

In the aftermath of the Panama Papers scandal and following the Anti-Corruption Summit which took place in London in May, the 2016 Queen's Speech announced the introduction of the Criminal Finances Bill, which is aimed at tackling corruption, money laundering, and tax evasion. Its stated purpose is 'to allow the government to recoup more criminal assets by reforming the law on proceeds of crime, including strengthening enforcement powers'.

The main elements of the Bill will be 'the introduction of a criminal offence for corporations who fail to stop their staff facilitating tax evasion', 'improving the operation of the Suspicious Activity Reports regime to encourage better use of public and private sector resources against the highest threats', and 'providing the National Crime Agency with new powers'. It remains to be seen how this legislation will be drafted and whether it will have the intended effect.

Celia Marr is an associate at Peters & Peters Solicitors @PetersandPeters