Summary of Approved Judgment
Factual and Procedural Background
This opinion concerns two applications by the Solicitor General under section 36 of the Criminal Justice Act 1988 (leave to refer sentences as unduly lenient) in respect of two respondents, each a foreign national who was removed from the jurisdiction under the Early Removal Scheme before the hearing of the applications. The applications were listed together before the Court of Appeal (Criminal Division), constituted by Judge Baker, Judge Bryan and Judge Bourne, following sentencing in the Crown Court at The City.
First Respondent (convicted at The City Crown Court on two counts of sexual assault) was sentenced to an effective 30 months' imprisonment. Following service of Home Office stage 1 and stage 2 removal paperwork and a signed disclaimer opting for voluntary removal under the Early Removal Scheme, he was removed from prison and deported abroad prior to conclusion of the unduly lenient process. The Solicitor General applied for leave to refer his sentence; the Respondent's legal representatives filed a Respondent's Notice opposing the application.
Second Respondent (convicted at The City Crown Court after guilty pleas to multiple counts including robbery and related offences) was sentenced to an effective 3 years' imprisonment. A similar sequence occurred: stage 1/2 removal paperwork, a signed declaration consenting to voluntary removal, authorisation of removal by the relevant prison governor under the Early Removal Scheme, and deportation abroad before the unduly lenient application was concluded. The Solicitor General applied for leave to refer his sentence and a Respondent's Notice was filed.
The central procedural issue was whether, and in what circumstances, the Court of Appeal should proceed with unduly lenient applications where the offender has been removed from the jurisdiction under the Early Removal Scheme prior to the hearing.
Legal Issues Presented
- Whether the Court of Appeal may and should hear an application under section 36 CJA 1988 where the offender, a foreign national, is not present because they have been removed from the United Kingdom under the Early Removal Scheme (section 260 CJA 2003).
- If the court may proceed, what fairness safeguards and practical considerations (including availability of representation and prison reports, and the limited scope of material for deciding undue leniency) determine whether a fair hearing can be held in the offender's absence?
Arguments of the Parties
Applicant (The Solicitor General) — Attorney Faure Walker / Attorney Holt
- The court should proceed to hear the applications despite the respondents' absence because the determination of undue leniency is made on the material that was before the sentencing judges and counsel for the respondents remain instructed and able to protect their clients' interests.
- Each respondent signed documentation opting into the Early Removal Scheme; that conduct supports an inference that they did not wish to be present for the references.
- There is strong public interest in proceeding to maintain public confidence in sentencing and to ensure that, should a respondent return to the jurisdiction, any increased sentence would be enforceable.
First Respondent — Attorney Witcher / Attorney Dodson
- Opposed the application for leave: submitted the original sentence was appropriate and that the sentencing judge had properly considered the material available at first instance.
- Sought to rely on the trial judge's position as being particularly well placed; noted that written mitigation and PSR had been before the sentencing judge.
- Observed chronology indicating limited or delayed notification from appeal office/prison and implied issues with timing of removal.
Second Respondent — Attorney Tanner
- Argued it would be wrong in principle to proceed where the respondent's absence resulted from erroneous deportation by the State; fairness concerns arise if removal was not voluntary or informed.
- Submitted that those acting on his behalf had limited or no subsequent contact with him and had not received express instructions to continue representation after removal; therefore the inference of voluntary waiver is unsafe.
- Contended there is no practical utility or public interest in proceeding because any increased sentence cannot be served while the respondent remains outside the jurisdiction.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Attorney-General's Reference No 132 of 2001 (Bryn Dorian Johnson) [2002] EWCA Crim 1418 |
Purpose of the unduly lenient scheme: to allay public concern and preserve public confidence where a judge departs substantially from sentencing norms. |
Quoted to explain the public interest underpinning the unduly lenient scheme and the rationale for the Attorney General/Solicitor General making references. |
| Attorney General's Reference No 4 of 1989 [1989] 11 Cr App R (S) 517 |
Foundational principles: a sentence is unduly lenient where it falls outside the range which a sentencing judge could reasonably consider; sentencing is an art and first instance judge is well placed to assess weight. |
Applied to emphasise the narrow remit of section 36 and the standard for finding undue leniency. |
| Attorney-General's Reference (Egan) [2022] EWCA Crim 1751 |
Summarised principles for section 36: (1) judge at first instance is well placed; (2) unduly lenient only if outside reasonable range; (3) leave should be granted only in exceptional cases; (4) section 36 targets gross error. |
Used to frame the standard the court must apply when considering whether the original sentences were unduly lenient. |
| Attorney General's Reference (No 79 of 2015) (R v Nguyen) [2016] EWCA Crim 448 |
When deciding whether to increase a sentence after declaring it unduly lenient, the court may take into account additional material not available to the sentencing judge (distinguishing stages). |
Adopted to explain that, while undue leniency is judged by material before the sentencing judge, the discretionary decision whether to increase may consider later material. |
| Attorney General's Reference No 19/2005 B (W) [2006] EWCA Crim 785 |
Limits on relying upon further evidence not placed before the sentencing judge when deciding whether the original sentence was unduly lenient. |
Referenced to stress that the declaration of undue leniency depends on original material and that new evidence cannot be used to set aside that threshold. |
| Attorney General's Reference No 84/2009 R v Quain [2010] EWCA Crim 1879 |
Followed previous authority regarding limits on new material for deciding undue leniency. |
Cited to show continuity of principle on reliance upon material before the sentencing judge for the undue leniency determination. |
| Attorney General's Reference No 74/2010 R v Pearson [2011] EWCA Crim 873 |
Confirmed the court's power to take into account matters adverse to the defendant when deciding the appropriate sentence after quashing an unduly lenient sentence. |
Relied upon to justify that, upon quashing for undue leniency, the court may proceed on up-to-date information when fixing a substitute sentence. |
| R v Hayward, Jones & Purvis [2001] EWCA Crim 168 |
Principles guiding whether a trial or hearing should proceed in the absence of a defendant (waiver, discretion, fairness, representation). |
Applied analogously to assess whether unduly lenient references can proceed fairly when the offender is absent due to removal. |
| R v Jones [2002] UKHL 5 |
Endorsed the Hayward principles; emphasised caution in exercising discretion to proceed in absence and value of representation. |
Used to underline that the discretion to proceed must be exercised with great care and that representation provides important safeguards. |
| R v Gavin & Tasie [2010] EWCA Crim 2727 |
Distinguished voluntary and involuntary deportation in relation to hearings in absence; discretion may be more readily exercised for sentencing matters than for trials on guilt. |
Relied upon to support the proposition that absent hearings in sentencing contexts may be permissible, and that voluntary removal may bar complaint by the absent defendant. |
| R v Bilalaj [2023] EWCA Crim 254 |
Considered whether to proceed with an unduly lenient application where the offender had been voluntarily deported prior to the hearing; court proceeded where representation was able to protect interests. |
Referred to as the only directly similar authority and as supportive of proceeding where absent defendant remains represented and the circumstances permit a fair hearing. |
| R v Maxwell [2010] UKSC 48 |
Categories of abuse of process supporting a stay (including where a fair hearing cannot take place). |
Invoked to explain that a stay would be appropriate if the court cannot secure a fair hearing; the court found no deliberate manipulation here and so did not stay on that basis. |
Court's Reasoning and Analysis
The court first set out the statutory framework: Part IV CJA 1988 (section 36 and Schedule 3) governing unduly lenient references; the UK Borders Act 2007 provisions requiring deportation of certain foreign criminals; and section 260 CJA 2003 providing the Early Removal Scheme and its operation (including calculation of minimum pre-removal custodial period). The court also summarised relevant guidance (Prison Service Instruction "The Early Removal Scheme" and Home Office guidance) describing expected practice that removal should not occur while an unduly lenient reference is outstanding and that prisons should normally not approve ERS removal where there are outstanding unduly lenient references.
The court found, on the facts before it, that the governors who authorised the removals of the two respondents under the Early Removal Scheme ought not to have done so and that procedural oversight had occurred: the relevant guidance envisaged that removal should not proceed while an unduly lenient application was pending. The court noted both respondents had signed disclaimers and documents opting for voluntary removal.
Turning to fairness and the statutory right to be present (Schedule 3 paragraph 6), the court applied principles from R v Hayward, Jones & Purvis and R v Jones concerning trials/hearings in absence. It identified the central question as whether, despite absence, the respondents could have a fair hearing of the unduly lenient applications. The court observed:
- The threshold question of undue leniency is to be decided on material available to the sentencing judge; that task is narrowly confined.
- The principal additional material at the review stage is usually a prison report about progress in custody; that is of limited value to the threshold question.
- Both respondents remained legally represented by the lawyers who acted at sentence; there was no suggestion they had withdrawn instructions; representation mitigates fairness concerns.
- Where removal was voluntary and informed, the court may more readily proceed (following Gavin/Tasie and Bilalaj); where removal was involuntary the court should be more cautious.
- The public interest in maintaining confidence in sentencing and ensuring enforceability of correct sentences on return supports proceeding where a fair hearing can be secured.
Applying these considerations to the two cases before it, and given the limited scope of material relevant to deciding whether the original sentences were unduly lenient, the court concluded that a fair hearing could be held in the respondents' absence because both had representation able to advance their positions and the matters needed for the threshold decision were those before the sentencing judges.
On the substantive merits, the court evaluated each respondent's offending against the applicable guidelines and the Attorney-General's principles on undue leniency. For the First Respondent the court concluded the offending fell clearly within the highest category of the relevant sexual-offences guideline and that the sentencing judge had understated the appropriate starting point and failed adequately to reflect aggravating factors, making the 30-month total sentence outside the reasonably available range. For the Second Respondent the court concluded the Recorder had underestimated culpability for repeated, knife-enabled robberies and that the notional period should have been materially higher before credit for plea; the total sentence as imposed was outside the reasonably available range.
Holding and Implications
HOLDING:
- First Respondent: The court granted leave to refer, allowed the reference, quashed the sentence of 30 months on the lead count and substituted a sentence of 4 years' imprisonment on the lead count; concurrent 6 months on the other count remains, resulting in a total effective sentence of 4 years' imprisonment.
- Second Respondent: The court granted leave to refer, allowed the reference, quashed the relevant counts and substituted sentences such that the total sentence is increased to 4½ years' imprisonment (specific counts adjusted to 4½ years concurrent with remaining counts as set out by the court).
Implications:
- Direct effect: each respondent's sentence as substituted is increased as above; those removed remain liable to serve any remainder of sentence if they return to the jurisdiction in accordance with the statutory framework governing removal and detention on return.
- Procedural guidance: the court expressed that the Attorney General's Office should establish a procedure to notify the Home Office (and relevant custodial authorities) when an unduly lenient reference is made so that foreign criminals are not removed under the Early Removal Scheme while such applications are outstanding.
- Scope of precedent: the court emphasised that its decision to proceed in these cases turned on their particular circumstances (existence of instructed representatives, limited scope of material for the undue-leniency threshold, and voluntary nature of removal) and should not be taken as a universal rule that every similar application will be heard where the offender has been removed.