Frequently Asked Questions

Which offences can be referred to the Court of Appeal?

The power to refer is restricted to the most serious offences. It applies to all offences which are indictable only i.e. those that can only be tried in the Crown Court. It also applies to a number of offences that are triable in both the Crown and Magistrates Court and which the Home Secretary has specified by order should be subject to the Attorney General's power to refer. The Criminal Justice Act 1988 (Review of Sentencing) Order 2006 extends the power to refer to:

	Making threats to kill;
	Cruelty to a child;
	Certain serious and complex frauds;
	Certain sexual offences;
	Certain offences in relation to the illegal importation of controlled drugs or indecent material;
	The production, supply or possession with intent to supply of controlled drugs or the cultivation of cannabis;
	The racially or religiously aggravated form of the following offences: assaults, criminal damage, public order offences or aggravated harassment.

Attempting to commit or inciting the commission of all of these offences will also be within the Attorney's power to refer. It is also possible to refer the minimum term fixed before a prisoner convicted of murder and serving a life sentence can be considered for release.

Who can ask the Attorney General to consider referring a sentence to the Court of Appeal?

Requests to consider referring a sentence come from the prosecuting authority, the victim or victim's family, MPs, Peers, pressure groups or members of the public. The Law Officers will consider all requests where a sentence can be referred, provided they are received within time.

What is the procedure for making a request to the Attorney General to consider referring a sentence?

There is a strict time limit of 28 days from the date of sentence for the Attorney General to apply to the Court of Appeal to refer a sentence. It is therefore imperative that any request to consider referring a sentence is made to this office well within those 28 days, in order for the papers to be obtained and counsel's advice sought where appropriate. There is no power to extend the 28-day period.

The request should be made in writing or by email correspondenceunit@attorneygeneral.gsi.gov.uk specifying the name of the defendant, date of sentence, Crown Court and offence(s), and the name and contact address for the person seeking the review.

When will a sentence be considered unduly lenient?

The Court of Appeal has said that 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". (Attorney General's Reference number 4 of 1989 (1990) 90 CR App R 366) Therefore in order for the Attorney to refer it to the Court of Appeal it must be not just low but "manifestly not sufficiently severe" (Attorney General's Reference numbers 31, 45, 43, 42, 50 and 51 of 2003 [2004] EWCA Crim). Even then, the Court has a wide discretion as to whether or not to interfere in such cases. Where the Court does consider that a sentence was unduly lenient, they will not replace the sentence with that which they considered should have been passed at first instance.

This is because the Court takes into account the fact that the offender has been put through the sentencing process a second time and gives a discount for this element of "double jeopardy". This means that it is only where the sentence passed is significantly below the sentence any Judge could have passed that the Court of Appeal will interfere.