The Court of Appeal is to review the sentences given to three teenage boys convicted of the rape of two girls in Hampshire. The judge’s original decision had prompted a public outcry and a rare intervention from the prime minister.
The boys, two of whom were 15 and one 14 at the time of sentencing, were given youth rehabilitation orders and walked free from court despite having 10 rape convictions between them. The judge said he wanted to “avoid criminalising these children unnecessarily” and support their reintegration into society.
But former safeguarding minister Jess Phillips said the sentences were “unduly lenient” while Keir Starmer, a former director of public prosecutions, said “there are questions about the sentence”. The case has highlighted the discretionary power the judiciary holds.
How much leeway do judges have?
Legislation sets maximum, and sometimes minimum, sentences for criminal offences based on the type, seriousness and circumstances of the crime. “But the law is written in a way that gives judges and magistrates considerable discretion when it comes to sentencing,” said the Sentencing Council for England and Wales.
Sentencing guidelines set by the Council help identify what type and length of sentence should be imposed to make sure a consistent approach is taken across all courts and crimes.
By law, judges and magistrates must sentence according to the guidelines, “unless it would be unjust to do so”, said the Council. However, they have the “discretion to depart from sentencing guidelines if they think it would be in the interest of justice to do so, given all the circumstances of a particular case”.
When deciding on a sentence, the judge or magistrate will consider things like “your age, if you have a criminal record, if you pleaded guilty or not guilty”, said Gov.uk. While they must follow sentencing guidelines, “they may also look at decisions made by the Court of Appeal in previous cases – this is called ‘case law’”.
“Judges never publicly comment on cases they oversee because to do so would potentially undermine the words they have used in court,” said the BBC, “but they always have to show in court the reasons why they have sentenced a defendant the way they did”.
How is it different for young offenders?
“While the seriousness of the offence will be the starting point,” said the Sentencing Council, when sentencing children or those aged under 18 at the date of the finding of guilt, the approach should be “individualistic and focused on the child or young person, as opposed to offence focused”.
There is an emphasis on rehabilitation “where possible”. The court should also “consider the effect the sentence is likely to have on the child or young person (both positive and negative) as well as any underlying factors contributing to the offending behaviour”.
Both domestic and international laws dictate that a custodial sentence should always be a “measure of last resort” for children and young people. Statute provides that a custodial sentence “may only be imposed when the offence is so serious that no other sanction is appropriate”.
Can a sentence be reconsidered?
The unduly lenient sentence scheme allows any member of the public to refer a sentence to the attorney general. The government’s top legal adviser then asks prosecutors to “advise whether it is in line with expectations, taking into account the discretion that judges have, or completely at odds with what would have happened in comparable cases”, said the BBC.
If the attorney general decides the sentence was “out of line, he will refer it to the Court of Appeal where three senior judges will look at what happened in a public hearing and rule on whether the sentence was right or unduly lenient”.
The right to appeal against a sentence “remains restricted to serious crimes tried in the crown court, such as murder, manslaughter, robbery, rape, stalking and most child sexual abuse offences”, excluding “hundreds of other offences, including some sexual crimes, causing death by careless driving and burglary”, said The Guardian.
The law was changed in April to extend the 28-day limit to submit a formal request for a review after an offender is sentenced to six months. It followed a campaign by relatives of murder victims who argued they were not aware of the scheme or had missed the deadline.
How much leeway does the judiciary have and can decisions be reconsidered?
