In any criminal case, sentencing is entirely a matter for the sheriff or judge who has heard the case. It is for them, acting independently of any other person, to determine what sentence from among those legally available should be imposed and to explain the reasons for selecting a particular sentence.
COPFS is Scotland’s independent prosecution service and is often referred to as ‘the Crown’. It is a separate institution from the Court and the Judiciary with independent functions in relation to the criminal justice process. The Crown can only appeal a sentence on two grounds: on a point of law or on the basis that the sentence is unduly lenient.
The Crown has no appeal on the facts of a case. Further, the law is clear that the Crown cannot appeal simply on the ground that the sentence is a lenient one. Before the Crown could properly maintain an appeal, it must be satisfied that the sentence was unduly lenient.
The legal test which must be met for an unduly lenient sentence appeal has been explained by the Appeal Court in the following terms (HM Advocate v. Bell 1995 SCCR 244, 250C-E):
“It is clear that a person is not to be subjected to the risk of an increase in sentence just because the appeal court considers that it would have pronounced a more severe sentence than that which was passed at first instance.The sentence must be seen to be unduly lenient. This means that it must fall outside the range of sentences which the judge at first instance, applying his mind to all the relevant factors, could have considered appropriate. Weight must always be given to the views of the trial judge, particularly in a case which has gone to trial, and the trial judge has had the advantage of seeing and hearing all the evidence.There may also be cases where, in the circumstances, a lenient sentence is entirely appropriate. It is only if it can be said to be unduly lenient that the appeal court is entitled to interfere with it at the request of the Lord Advocate.”
The law applies a strict test for a Crown sentence appeal because, within the limits described, Scotland’s criminal justice system allows scope for sheriffs and judges to exercise leniency where they consider that to be justified on the facts and circumstances of the particular case.
While the Crown will appeal – and has appealed - sentences which meet the test explained above, the Crown cannot properly appeal a sentence which does not meet that legal test, or continue such an appeal if it becomes apparent that the legal test is not met.