R v Jack Poulson & Ors

This series of applications by the Attorney General for leave to refer sentences under section 36 of the Criminal Justice Act 1988 is listed for determination by the court today and tomorrow.

At the start of the hearing, we have heard argument from Miss Ashcroft, counsel who represents the respondent, Harvie Aspden, and from Mr Holt, counsel who represents the Attorney General. That argument concerns what is described as a preliminary matter.

We have been greatly assisted in dealing with it by a joint note, running to four pages only, prepared by both counsel, although we understand that Miss Clare Ashcroft had the leading role in that. It sets out the matter we have to decide, succinctly and accurately, and reflects a large element of entirely appropriate agreement. We are extremely grateful to both counsel for dealing with the matter in that way.

The application by the Attorney General in the case of Harvie Aspden relates to a sentence which was imposed on him for two offences contrary to section 13(1) of the Sexual Offences Act 2003. Those are offences of sexual activity with a child, where the offender is themselves a child. It is common ground that that offence, contrary to section 13 of the 2003 Act, is not an offence listed in the Criminal Justice Act 1988 (Reviews of Sentencing) Order 2006. Sexual activity with a child, when committed by an adult, is listed in that Order.

The respondent, Harvie Aspden, was one of ten defendants named on an indictment and subsequently sentenced by the trial judge, His Honour Judge Simon Medland KC. All of the sentences passed in relation to that indictment are the subject of applications for leave to refer them to this court for review under the 1988 Act.

The Attorney General submits that the case of Harvie Aspden falls within the scope of a review of sentencing as being unduly lenient, notwithstanding the exclusion from the 1988 Act of the offences he committed. In advancing that submission, the Attorney General relies upon two decisions of this court. The first is Attorney General's Reference No 32 of 2004 [2004] EWCA Crim 2644; and the second is R v Clews [2019] EWCA Crim 769. These decisions, taken together, decide that the scope or reach of section 35 and 36 of the 1988 Act extends to cases where an offender has been convicted of one or more offences which fall specifically within the scheme, together with other offences which do not. In those circumstances, the Attorney General may refer the case, and, if such a reference is made and leave is given, the court may review all of the sentences, whether they fall within the scheme or not. That is as a result of the construction of the words of sections 35 and 36. It is submitted that those sections use the word "case" and "proceeding" to encompass a broader range of offences than simply the use of the word "count" or "offence" might produce.

The Attorney General's submission is a significant extension of those earlier decisions, in our judgment. It appears, so far as the industry of counsel has revealed, that there has never been a case where a person's sentencing has been reviewed by this court under these provisions, where they have never been convicted of any offence which falls within the scheme. That is a surprising state of affairs, if the Attorney General's submissions are correct.

In our judgment, the words of sections 35 and 36 of the 1988 Act are clear. A person can only be the subject of a review of sentencing under those provisions if they have been convicted of at least one offence falling specifically within the relevant provisions. That position appears to us to reflect a sound policy, as well as being produced by a literal construction of the words of the sections. Those who have only committed offences which Parliament has regarded as not warranting the exercise of such a power should not be subject to it.

For those reasons, we prefer the submissions of Miss Ashcroft on this issue. We consider that we have no jurisdiction to entertain the application in relation to Harvie Aspden.

Accordingly, we refuse leave; or, alternatively, we dismiss the application for want of jurisdiction. It probably does not matter which of those alternatives we articulate.