Attorney GeneralReference No. 50 of 2009

In reviewing a sentence under Criminal Justice Act 1988, section 36, the court must distinguish a sentence which is lenient from one which is unduly lenient. For offences of violence, serious harm must be assessed in the light of the offender’s culpability. A grave injury may result from conduct at a relatively low level of culpability.

A sentence for section 18 grievous bodily harm with intent may therefore fall at the lowest end of the scale where the offender acted after serious provocation and in perceived self-defence, but used excessive force. The appellate court may take account of the sentencing judge’s direct assessment of video evidence when deciding whether the statutory threshold for intervention is met.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient a sentence imposed on Jonathan Haslam.

At Oxford Crown Court, Haslam pleaded guilty to causing grievous bodily harm with intent contrary to section 18 of the Offences against the Person Act 1861. On 5 May 2009, Judge Hall imposed 12 months’ imprisonment suspended for two years, 200 hours’ unpaid work and a curfew.

The victim, who had been drunk, abusive and aggressive, approached Haslam and his companions. Haslam believed that he was about to be attacked and used excessive force. The victim suffered grave head injuries. The central issue was whether, despite its acknowledged leniency, the suspended sentence was unduly lenient.

1. Leave was granted, but the reference did not justify intervention. The court held that the sentence was lenient but not unduly lenient for the purposes of section 36 of the Criminal Justice Act 1988. It therefore left the sentence unchanged.

2. The seriousness of violence must reflect both culpability and harm. The Sentencing Guidelines Council guideline recognised that an offence against the person may involve an imbalance between them: low culpability may produce high harm. In that situation, harm must be assessed in the light of culpability.

3. The offence under section 18 of the Offences against the Person Act 1861 was at the lowest end of the scale. The victim had created the confrontation through drunken, abusive and aggressive conduct. The offender had sought to defuse it and believed that he was about to be attacked, although he lost his temper and used excessive force after the victim fell.

4. The victim’s injuries were extremely serious and imprisonment was warranted by their severity. However, the sentencing judge had directly viewed the CCTV evidence and was entitled to assess the offender’s comparatively low culpability in the particular circumstances. Taking the case as a whole, the Court of Appeal was not satisfied that the statutory threshold for altering the sentence had been met.

• Court of Appeal (Criminal Division): The Attorney General’s section 36 reference was considered and the sentence was not altered: [2009] EWCA Crim 1729.

• Crown Court at Oxford: On 5 May 2009, following a guilty plea to section 18 grievous bodily harm with intent, Judge Hall imposed 12 months’ imprisonment suspended for two years, 200 hours’ unpaid work and a curfew.