Some initial observations about this case, and in particular what the Court of Appeal made of the Attorney General’s application to refer these sentences as “unduly lenient”.

Spoiler: it makes uncomfortable reading for the Attorney General.

First, by way of background. I was one of several commentators astonished that the Attorney General, who has no known experience of practising criminal law, decided to personally present this serious case at the Court of Appeal.

It appeared an overtly political decision.
Comments leaked to the press confirmed this was a political decision, to capitalise on a tragic case in the headlines.

A “friend” of the Attorney General told the Express that she was pursuing the case *against* legal advice. She also took a preemptive pop at the judges.
On the day of the hearing, it appeared from selected reports that the AG was out of her depth. She appeared to be making political submissions to the Court of Appeal that have no place in a case of this type.
The Court of Appeal judgment helps understand what happened.

The AG played a limited role. She “rehearsed some of the facts and said that the sentences had caused widespread public concern”

Her contribution was seemingly not considered by the Court to be legal submissions. Oof.
Instead, legal submissions were advanced by the experienced criminal QC being “led” by the Attorney General. It was left to him to advance the argument that the AG was herself apparently unable or unwilling to.
An important paragraph. One detects that the intended audience is not just the public.
The Court of Appeal turns to the Attorney General’s legal argument.

These are words that you don’t want to hear from a judge.

“Striking.” “Unusual.”

“Regrettable” that a key point - the structure and ambit of the relevant Sentencing Guideline - was “not addressed”.
The AG could not complain that the sentencing judge had not followed the Guideline - because he clearly had. So instead, she argued he was under a duty *not* to follow it.

Striking and unusual indeed.

Court of Appeal: No “sufficient explanation [was] given” for this contention.
The Attorney General also claimed that the judge made too great a reduction in sentence to reflect the defendants’ age and learning difficulties. The Court of Appeal said she had shown “no basis” for this argument.
The conclusion? “There is no basis on which it can be said that...the custodial terms imposed on the offenders were unduly lenient.”

A resounding rejection of the Attorney General’s efforts.
The Court of Appeal also had little time (4 paragraphs!) for the defence argument that the sentences were manifestly excessive or wrong in principle. They quickly approved the sentencing judge’s approach and said that the defence grounds of appeal were “unarguable”.
One final thing. Neither the Attorney General, nor indeed the defence, spotted that the sentence was technically unlawful for other reasons. Court of Appeal in-house lawyers had to point it out.

Happens to us all, but still not great for the government’s most senior law officer.
So a resounding defeat all round.

Exactly as the AG was apparently advised by her own lawyers.

It is one thing to lose a case, even heavily, that you genuinely believe to be arguable.

But to pursue a case against legal advice at public expense for political gain? Not good.
So the headline:

The Attorney General was advised by experienced government lawyers that this application had no legal merit.

She pursued it anyway, briefed the tabloids that any judge who found against her was a “wet liberal”, insisted on presenting it herself, and lost.
I’m aware that my criticism of the AG is not universally popular.

If she stops exonerating political advisors, approving government law-breaking, sitting silent as lawyers are attacked by her colleagues and intervening in criminal cases for political gain, I’ll happily stop too.

More from Court

There won't be a rerun of Jan 6. The riot at the Capitol was unique in many ways: Trump called for it; it was the last chance to "overturn" the election; it was huge in scale.

The coming Trumpist events on Jan 17 and Jan 20 will probably be much smaller in scale, especially in DC. The MAGA crew can't buy another flight and take more days off work so soon after Jan 6.

Some of the Trumpist forums are actively suspicious of these events, claiming they're FBI or Antifa traps. A lot of people at TDW felt that the *design* of this flyer was too lefty to be real!

Unfortunately, that doesn't mean everything will be OK. The statehouse events on Jan 17 have the potential to turn violent, where a few hundred people could be enough to overwhelm local authorities.

MAGA anger at a lot of the GOP is high, as well as against Dems. Even red states could see problems, so I hope authorities are prepared.
so @tedwheeler did you hear? today we are discussing "public whippings" thanks to @JamesBuchal

its a great chance to study the history of public beatings.
understandably, women feel threatened.
#PDX #tourism

PORTLAND. Or., June 7—The whipping post law passed at the last session of the Legislature was Into execution for the first time today, the victim being Charles Mcdlnty, convicted of wlfe-beatlng

whip was a braided blacksnake, made of rawhide, with four lashes. ..hustled to jail, stripped to the

waist, manacled, and his hands tied to the door high above his head. The whipping was as severe as the powerful deputy was capable of administering. Blood drawn on the 4th blow.

You May Also Like