Some initial observations about this case, and in particula…

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.

There will be no substantive change to the sentences passed on the killers of Pc Andrew Harper.

The Attorney General\u2019s application to refer the sentences as unduly lenient and the defence applications for leave to appeal against sentence have been refused by the Court of Appeal. https://t.co/qxTzuj7jR3
— The Secret Barrister (@BarristerSecret) December 16, 2020

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. https://t.co/Q5idP3FyZp

Grimly cynical.

The Attorney General - who has absolutely no experience of criminal law - is so desperate to exploit this tragic case that she is inserting herself into proceedings that she is not competent to conduct.https://t.co/QWdINvUwwf
— The Secret Barrister (@BarristerSecret) November 12, 2020

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. https://t.co/vwvJ5yHIj8

Before the hearing, the Attorney General leaked to the Daily Express, via an alleged \u201cfriend\u201d, her views that, should the judges find against her, it will be because they are \u201cwet liberal judges\u201d who are \u201csoft on criminals\u201d. https://t.co/5uGggN8tTT
— The Secret Barrister (@BarristerSecret) November 30, 2020

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. https://t.co/PJH1UCn0aQ

The Attorney General had to be embarrassingly corrected during the hearing by an actual criminal silk after making irrelevant and politicised submissions to the Court of Appeal.

What a farce. pic.twitter.com/wy81xoFIDI
— The Secret Barrister (@BarristerSecret) November 30, 2020

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.

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.

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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.

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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.