Criminal Justice (Sentencing etc) Bill

PART 4

UNDULY LENIENT SENTENCES

Cases to which this Part applies

20.—(1) This Part applies to any case falling within subsection (2) or (3).

(2) A case falls within this subsection where—

(a) a person is convicted on indictment of an offence, and

(b) the Crown Court passes a sentence on the person in respect of the offence.

(3) A case falls within this subsection where—

(a) on summary trial of an offence, a person is convicted of the offence,

(b) the offence is of a description specified in regulations made by the Department, and

(c) a court imposes a sentence on the person in respect of the offence.

(4) Regulations under subsection (3)(b) are subject to negative resolution.

(5) In this Part, “sentence” has the meaning given by section 47 but—

(a) also includes any recommendation as to the making of a deportation order made when dealing with the offender, and

(b) does not include—

(i) an interim hospital order under Part 3 of the Mental Health (Northern Ireland) Order 1986, or

(ii) an order under Article 31 of the Access to Justice (Northern Ireland) Order 2003.

Review of sentencing

21.—(1) If it appears to the Director of Public Prosecutions for Northern Ireland that—

(a) the sentencing of a person in a case has been unduly lenient, and

(b) the case is one to which this Part applies,

the Director may refer the case to the Court of Appeal to review the sentencing of that person.

(2) Without limiting subsection (1), the condition in paragraph

(a) of that subsection may be satisfied if it appears to the Director that the judge in the case— (a) erred in law as to the powers of sentencing available to the judge, or

(b) failed to impose a sentence falling to be imposed under—

(i) Article 70(2) of the Firearms (Northern Ireland) Order 2004,

(ii) paragraph 2(4), (5) or (5A) of Schedule 2 to the Violent Crime Reduction Act 2006, 12 Criminal Justice (Sentencing etc) Bill Part 4—Unduly lenient sentences

(iii) Article 13, 13A, 14 or 15A of the Criminal Justice (Northern Ireland) Order 2008, or

(iv) section 7(2) of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015.

(3) In subsection (2)(b), references to a sentence falling to be imposed under any of the provisions mentioned in that paragraph are to be read in accordance with Article 4(2) of the Criminal Justice (Northern Ireland) Order 2008

(4) Before referring a case, the Director must obtain the leave of the Court of Appeal.

(5) On a reference under subsection (1) the Court of Appeal may—

(a) quash any sentence passed on the person in the proceedings, and

(b) in place of it pass such sentence as the Court thinks appropriate for the case and as the court below had power to pass when dealing with the person.

(6) For the purposes of subsection (5)(a) any two or more sentences are to be treated as passed in the same proceedings if they would be so treated for the purposes of section 10(2) of the Criminal Appeal (Northern Ireland) Act 1980.

(7) Where a reference under subsection (1) relates to an order under Article 5(1) of the Life Sentences (Northern Ireland) Order 2001, in deciding what order under that Article is appropriate for the case, the Court of Appeal must not make any allowance for the fact that the person to whom the order relates is being sentenced for a second time.

(8) A judge must not sit as a member of the Court of Appeal on the hearing of, or determine any application in proceedings incidental or preliminary to, a reference under subsection (1) where the sentence to which the reference relates was passed by the judge.

Reference to the Supreme Court

22.—(1) This section applies where the Court of Appeal has concluded its review of a case referred to it under section 21(1).

(2) The Director of Public Prosecutions for Northern Ireland or the person to whose sentencing the reference relates may refer a point of law involved in any sentence passed on that person in the proceeding to the Supreme Court for its opinion.

(3) Where a point of law is referred to the Supreme Court, it must—

(a) consider the point and give its opinion on it, and

(b) either deal with the case or remit it to the Court of Appeal to be dealt with.

(4) A reference under subsection (2) may be made only with the leave of the Court of Appeal or the Supreme Court.

(5) Leave must not be granted unless—

(a) it is certified by the Court of Appeal that the point of law is of general public importance, and Criminal Justice (Sentencing etc) Bill 13 Part 4—Unduly lenient sentences

(b) it appears to the Court of Appeal or the Supreme Court (as the case may be) that the point is one which ought to be considered by the Supreme Court.

(6) For the purpose of dealing with a case under this section the Supreme Court may exercise any powers of the Court of Appeal.

Supplementary provision

23. Schedule 4 contains supplementary provision relating to reviews of sentencing and references to the Supreme Court under this Part.

SCHEDULE 4

UNDULY LENIENT SENTENCES: SUPPLEMENTARY 

1. Notice of an application for leave to refer a case to the Court of Appeal under section 21 must be given within the period of 28 days beginning with the day on which the sentence, or the last of the sentences, in the case is passed. 

2. If the Master (King’s Bench and Appeals) is given notice of a reference or application to the Court of Appeal under section 21, the Master must—

(a) take all necessary steps for obtaining a hearing of the reference or application, and

(b) obtain and lay before the Court in proper form all documents, exhibits and other things which appear necessary for the proper determination of the reference or application.

3. Rules of court may—

(a) enable a person to whose sentencing such a reference or application relates to obtain from the Master any documents or things, including copies or reproductions of documents, required for the reference or application, and

(b) authorise the Master to make charges for them in accordance with scales and rates fixed from time to time by the Department.

4.—(1) An application to the Court of Appeal for leave to refer a case to the Supreme Court under section 22 must be made within the period of 14 days beginning with the date on which the Court of Appeal concludes its review of the case. 

(2) An application to the Supreme Court for leave to refer a case to the Supreme Court under section 22 must be made within the period of 14 days beginning with the date on which the Court of Appeal concludes its review or refuses leave to refer the case to the Supreme Court.

5. The time during which a person whose case has been referred for review under section 21 is in custody pending its review and pending any reference to the Supreme Court under section 22 must be counted as part of the term of any sentence to which the person is for the time being subject.

6. Except as provided by paragraphs 7 and 8, a person whose sentencing is the subject of a reference to the Court of Appeal under section 21 is entitled to be present on the hearing of the reference, although the person may be in custody.

7. A person in custody is not entitled to be present unless the Court of Appeal gives the person leave to be present—

(a) on an application by the Director of Public Prosecutions for Northern Ireland for leave to refer a case, or

(b) under any proceedings preliminary or incidental to a reference.

8. The power of the Court of Appeal to pass sentence on a person may be exercised although the person is not present.

9. Except as provided for by paragraph 10, a person whose sentencing is the subject of a reference to the Supreme Court under section 22 and who is detained pending the hearing of that reference is not entitled to be present on the hearing of the reference or of any proceeding preliminary or incidental to the reference.

10. A person who is detained is entitled to be present where—

(a) an order of the Supreme Court authorises the person to be present, or

(b) the Supreme Court or the Court of Appeal, as the case may be, gives the person leave to be present.

11. The term of any sentence passed by the Court of Appeal or Supreme Court under section 21 or 22, as the case may be, must begin to run from the time when it would have begun to run if passed in the proceeding in relation to which the reference was made, unless the Court of Appeal or Supreme Court, as the case may be, otherwise direct.

12.—(1) Sub-paragraph (2) applies where on a reference to the Court of Appeal under section 21 or a reference to the Supreme Court under section 22 the person whose sentencing is the subject of the reference (“P”) appears by counsel for the purpose of presenting any argument to the Court of Appeal or the Supreme Court.

(2) P is entitled to the payment out of money provided by the Department of such funds as are reasonably sufficient to compensate P for expenses properly incurred by P for the purpose of being represented on the reference. 

(3) Any amount recoverable under this paragraph must be ascertained, as soon as practicable, by the Master (Taxing Office) or, as the case may be, under Supreme Court Rules.