Criminal Justice Act 1988

36 Reviews of sentencing. E+W+N.I.

(1) If it appears to the Attorney General—

(a) that the sentencing of a person in a proceeding in the Crown Court has been unduly lenient; and

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

he may, with the leave of the Court of Appeal, refer the case to them for them to review the sentencing of that person; and on such a reference the Court of Appeal may—

(i) quash any sentence passed on him in the proceeding; and

(ii) in place of it pass such sentence as they think appropriate for the case and as the court below had power to pass when dealing with him.

(2) Without prejudice to the generality of subsection (1) above, the condition specified in paragraph (a) of that subsection may be satisfied if it appears to the Attorney General that the judge

[F1 (a) erred in law as to his powers of sentencing; or

[F2 (b) failed to comply with a mandatory sentence requirement that applied as mentioned in section 399(b) or (c) of the Sentencing Code.]]

(3) For the purposes of this Part of this Act any two or more sentences are to be treated as passed in the same proceeding if they would be so treated for the purposes of section [F3 11] of the Criminal Appeal Act 1968.

[F4 (3A) Where a reference under this section relates to [F5 a minimum term order made under section 321 of the Sentencing CodeF6 ...], the Court of Appeal shall not, in deciding what order under that section is appropriate for the case, make any allowance for the fact that the person to whom it relates is being sentenced for a second time.]

(4) No judge shall sit as a member of the Court of Appeal on the hearing of, or shall determine any application in proceedings incidental or preliminary to, a reference under this section of a sentence passed by himself.

(5) Where the Court of Appeal have concluded their review of a case referred to them under this section the Attorney General 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 [F7 the Supreme Court for its opinion] , and [F8 the Supreme Court shall consider the point and give its opinion] on it accordingly, and either remit the case to the Court of Appeal to be dealt with or [F9 itself deal with the case.]

(6) A reference under subsection (5) above shall be made only with the leave of the Court of Appeal or [F10 the Supreme Court] ; and leave shall not be granted unless it is certified by the Court of Appeal that the point of law is of general public importance and it appears to the Court of Appeal or [F10 the Supreme Court] (as the case may be) that the point is one which ought to be considered by [F10 the Supreme Court] .

(7) For the purpose of dealing with a case under this section the [F11 Supreme Court] may exercise any powers of the Court of Appeal.

(8) The supplementary provisions contained in Schedule 3 to this Act shall have effect.

(9) In the application of this section to Northern Ireland—

(a) any reference to the Attorney General shall be construed as a reference to the [F12 Director of Public Prosecutions for Northern Ireland ];

[F13 (aa) subsection (2)(b) shall have effect as if for the words after “failed to” there were substituted

“impose a sentence required by—

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

(ii) paragraph 2(4) or (5) of Schedule 2 to the Violent Crime Reduction Act 2006,

(iii) Article 13 or 14 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;”]

(b) the references to sections [F14 11 and 35(1)] of the M1 Criminal Appeal Act 1968 shall be construed as references to sections 10(2) and 33(1) of the M2 Criminal Appeal (Northern Ireland) Act 1980, respectively.[F15 , [F16 and]

(c) the reference in subsection (3A) to [F17 a minimum term order made under section 321 of the Sentencing Code] shall be construed as a reference to an order under Article 5(1) of the Life Sentences (Northern Ireland) Order 2001] F18 ...

F18 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F1 S. 36(2)(a)(b) substituted (4.4.2005) for words in s. 36(2) by Criminal Justice Act 2003 (c. 44), ss. 304, 336, Sch. 32 Pt. 1 para. 46; S.I. 2005/950, art. 2(1), Sch. 1 para. 23, 42(21) (subject to art. 2(2), Sch. 2 (as amended by S.I. 2005/2122, art. 2))

F2 S. 36(2)(b) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 89(2) (with Sch. 24 para. 447, Sch. 27); S.I. 2020/1236, reg. 2

F3 Words in s. 36(3) substituted (4.4.2005) by Criminal Justice Act 2003 (c. 44), ss. 331, 336, Sch. 36 Pt. 6 para. 96(a); S.I. 2005/950, art. 2(1), Sch. 1 para. 43(c) (subject to art. 2(2), Sch. 2 (as amended by S.I. 2005/2122, art. 2))

F4 S. 36(3A) inserted (18.12.2003) by Criminal Justice Act 2003 (c. 44), ss. 272(1), 336(1)(12)

F5 Words in s. 36(3A) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 89(3) (with Sch. 24 para. 447, Sch. 27); S.I. 2020/1236, reg. 2

F6 Words in s. 36(3A) omitted by virtue of 2008 c. 4, s. 46(2) (as substituted (1.12.2020) by virtue of Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 267 (with Sch. 24 para. 447, Sch. 27); S.I. 2020/1236, reg. 2)

F7 Words in s. 36(5) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 48(2)(a)(i); S.I. 2009/1604, art. 2

F8 Words in s. 36(5) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 48(2)(a)(ii); S.I. 2009/1604, art. 2

F9 Words in s. 36(5) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 48(2)(a)(iii); S.I. 2009/1604, art. 2

F10 Words in s. 36(6) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 48(2)(b); S.I. 2009/1604, art. 2

F11 Words in s. 36(7) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 48(2)(c); S.I. 2009/1604, art. 2

F12 Words in s. 36(9)(a) substituted (with application in accordance with s. 41(1) of the amending Act) by Justice (Northern Ireland) Act 2002 (c. 26), ss. 41(5), 87(1); S.R. 2010/113, art. 2, Sch. para. 12

F13 S. 36(9)(aa) substituted for s. 36(9)(aa)-(ac) (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 89(4)(a) (with Sch. 24 para. 447, Sch. 27); S.I. 2020/1236, reg. 2

F14 Words in s. 36(9)(b) substituted (4.4.2005) by Criminal Justice Act 2003 (c. 44), ss. 331, 336, Sch. 36 Pt. 6 para. 96(b); S.I. 2005/950, art. 2(1), Sch. 1 para. 43(c) (subject to art. 2(2), Sch. 2 (as amended by S.I. 2005/2122, art. 2))

F15 S. 36(9)(c) and preceding word inserted (14.7.2008) by Criminal Justice and Immigration Act 2008 (c. 4), ss. 46(3), 153; S.I. 2008/1586, art. 2, Sch. 1 para. 25

F16 Word in s. 36(9)(b) omitted (N.I.) (14.1.2015) by virtue of Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (c. 2), ss. 7(6), 28(2)

F17 Words in s. 36(9)(c) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 89(4)(b) (with Sch. 24 para. 447, Sch. 27); S.I. 2020/1236, reg. 2

F18 S. 36(9)(d) and preceding word omitted (1.12.2020) by virtue of Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 89(4)(c) (with Sch. 24 para. 447, Sch. 27); S.I. 2020/1236, reg. 2

Modifications etc. (not altering text)

C1 S. 36 applied (18.12.2003) by Criminal Justice Act 2003 (c. 44), ss. 276, 336(1)(12), Sch. 22 para. 15

C2 S. 36 applied (12.7.2007) by The Criminal Justice Act 2003 (Reviews of Sentencing) (Consequential and Supplementary Provisions) Order 2007 (S.I. 2007/1762), art. 2

C3 S. 36(3A) modified (1.12.2020 immediately before the consolidation date (see 2020 c. 9, ss. 3, 5(2)(3) and 2020 c. 17, ss. 2, 416)) by Sentencing (Pre-consolidation Amendments) Act 2020 (c. 9), ss. 1, 5(2)(3); S.I. 2012/1236, reg. 2

C4 S. 36(9)(d) modified (1.12.2020 immediately before the consolidation date (see 2020 c. 9, ss. 3, 5(2)(3) and 2020 c. 17, ss. 2, 416)) by Sentencing (Pre-consolidation Amendments) Act 2020 (c. 9), ss. 1, 5(2)(3); S.I. 2012/1236, reg. 2

Marginal Citations

M1 1968 c. 19.

M2 1980 c. 47.