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Criminal Justice and Immigration Act 2008

Section 46: Review of sentence on a reference by Attorney General

327.Section 46 inserts new subsections (3A) and (3B) into section 36 of the 1988 Act. Under section 36 of the 1988 Act, the Attorney General has the power to refer cases concerning certain offences to the Court of Appeal on the grounds that the sentence imposed is unduly lenient. The Court of Appeal then has the discretion to quash the sentence and, replace it with one that it considers appropriate for the case. As a matter of sentencing practice, the Court of Appeal, when increasing a sentence which in its view is unduly lenient, sometimes operates a “double jeopardy” discount in favour of the offender to take account the fact that they are going through the sentencing process for a second time.

328.A person who is the subject of a life sentence or another indeterminate sentence has no certain prospect of a particular release date. Section 272 of the 2003 Act amended section 36 of the 1988 Act to prevent the Court of Appeal from applying such a “double jeopardy” discount in referred cases relating to minimum term orders under section 269(2) of the 2003 Act (mandatory life sentence cases). Section 46 extends this to cases relating to minimum term orders under section 82A(2) of the Powers of Criminal Courts (Sentencing) Act 2000 (discretionary life sentence cases and other indeterminate sentences). The effect is that the practice of allowing a “double jeopardy” discount is abolished in cases referred under section 36 of the 1998 Act in respect of the following types of sentence: a sentence of imprisonment for life; a sentence of detention during Her Majesty’s pleasure or for life under section 90 or 91 of the 2000 Act; a sentence of custody for life under section 93 or 94 of the 2000 Act; a sentence of imprisonment or detention for public protection under section 225 of the 2003 Act and a sentence of detention for public protection under section 226 of the 2003 Act.

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