Lord advocate aggressively appeals judges’ ‘lenient’ sentences

 Dorothy Bain KC

Figures obtained by The Sunday Times show a 500 per cent rise over the past decade in appeals brought by the lord advocate on the grounds that sentences were unduly lenient.

The power, available since 1995, allows prosecutors to ask appeal judges to quash original punishments and impose harsher penalties. It was once used sparingly, with only six appeals in 2016 and 2017, and four in 2018.

Since Ms Bain became lord advocate in 2021, however, its use has risen sharply. There were eight appeals in 2022, nine in 2023 and 18 last year – meaning a power once exercised roughly once every three months was last year deployed every three weeks.

The Crown has increasingly used the mechanism in sex offence cases, leading to harsher sentences for rapists.

Some lawyers claim the trend risks sending mixed signals to the judiciary, suggesting that judges could feel pressured into avoiding sentences that might be challenged, thus making harsher punishments more common.

The surge in appeals comes as ministers have ordered the early release of hundreds of prisoners and reduced the proportion of time inmates must serve, to alleviate the prison population crisis.

“There has been a significant change in approach over recent years and this has been raised internally,” said Ian Duguid KC, chairman of the Faculty of Advocates Criminal Bar Association.

“It is happening at the same time that we are told the government is increasingly looking at alternatives to custody. These two approaches cannot be reconciled.

“Added to the expense of putting so many people in jail, it seems a very odd direction to be travelling in.”

The Crown Office said the power remained rarely used compared with the tens of thousands of convictions each year, and that most appeals concerned defendants claiming their sentences were too harsh.

The shift comes alongside wider reforms to sexual offence trials. The SNP has abandoned plans to scrap juries in rape cases but is proceeding with the abolition of the ‘not proven’ verdict.

Kevin Drummond KC, a retired sheriff, warned of a potential encroachment on judicial independence.

“In the good old days the Crown took little or no interest in sentences, which was seen as a matter entirely for the courts,” he said. “It was always envisaged that this right to appeal would be used only in exceptional cases. So it seems odd, at a time when there is also guidance and guidelines, that the number of appeals is increasing so much.

“It seems vanishingly unlikely that a judge would be unaware of these guidelines, so the only other conclusion is that they elected, in the circumstances before them, to exercise judicial discretion.

“This is, therefore, open to the suggestion of an increasing interference in judicial discretion and independence and a direction of travel towards guidelines being prescribed.”

A spokesperson for the Crown Office said: “The ability to appeal sentences is an important safeguard in a balanced justice system. It is used in limited circumstances by prosecutors where sentences may be unduly lenient, and more frequently by the defence who argue sentences are too harsh.

“It is wrong to say that lodging an appeal is an attempt to interfere with judicial independence. Rulings from the senior judges of the Court of Appeal provide guidance for judges in lower courts.

“The increase in the small number of unduly lenient referrals in recent years reflects the number and seriousness of cases prosecuted. However, unduly lenient sentence appeals remain a relatively rare procedure – for example 68,067 people were convicted in a Scottish court in 2022-23 and notes of appeal were lodged by the Crown eight times with seven granted.

“The Judicial Office have not complained that the Crown’s approach to unduly lenient appeals is inappropriate.”