AG’s Reference Refused
The Registrar of Criminal Appeals instructed Abigail, who led Junior Counsel, to respond to an Attorney General’s Reference.
The Court declined to interfere with the sentences, having granted the Attorney General leave to bring the application.
The overall sentence passed of 9 years and 3 months was not increased: [2025] EWCA Crim 1462.
The indictment for trial, which occupied four weeks, featured two unconnected complainants and offences of rape, abduction, and serious assaults.
Giving the Court’s judgment, Lord Justice Edis, Vice President of the Court of Appeal Criminal Division, observed (at [38]): ‘We have received helpful written and oral submissions […], and we have reflected carefully on them.’
At [46] the Court clarified what it expects of the Prosecution at sentence in cases of this type: ‘[W]e would make it clear that the Prosecution has an obligation to ensure that courts do not proceed in a way which is legally flawed. […] [W]here a judge proposes to sentence somebody who has been convicted of an offence of rape, and to make a determination as to dangerousness without seeking a pre-sentence report, particularly where that person has relevant previous convictions and has been subject to a lengthy previous sentence, it is an error of law which arises. In those circumstances, in our judgment the prosecutor has an obligation to make a submission about the impact of section 30 of the Sentencing Code, and about the need for a pre-sentence report. […]’
Whilst (at [48]) ‘the matter may well have been more finely balanced than the judge appears to have thought’, the Court concluded (at [49]) ‘after anxious consideration and reviewing the material which the judge had, we have concluded that we should not hold that this was a case where he should, on that material, have found the offender to be dangerous’.
The Court considered the scope and limitations of its powers to interfere with sentence. Having done so (at [50]), the Court dismissed the Attorney General’s substantive application. ‘We must remind ourselves that the judge had not only the material to which we have already referred, but also extensive experience of the offender himself, having observed the trial over which he presided and during which the offender gave evidence. We arrive at this conclusion with some hesitation, because the truth of it may be that, after proper investigation, it might have emerged that the offender is indeed dangerous. We ourselves certainly do not find that he was not. This is a court of review, however, and we have, as we have said, concluded that on the material which he had available to him, the determination which the judge made was one which was open to him.’
