R v Scott Fitzgerald

Under section 36 of the Criminal Justice Act 1988, the Court of Appeal does not re-sentence an offender. A sentence is unduly lenient only where it falls outside the range reasonably open to the sentencing judge. Leave to refer is reserved for exceptional cases and not borderline sentencing decisions.

The appellate court must respect a careful assessment of aggravating features, totality and powerful mitigation. A sentence may be lenient without being unduly lenient. The court retains a discretion whether to increase a sentence even after finding undue leniency.

The Solicitor General applied under section 36 of the Criminal Justice Act 1988 for leave to refer the offender's sentence as unduly lenient.

At Leicester Crown Court, the offender pleaded guilty to two offences of causing death by dangerous driving after a collision caused the deaths of his brother and close friend. He also pleaded guilty to assaulting an emergency worker and failing to provide a specimen for analysis. The sentencing judge imposed a total of nine years and nine months' imprisonment, after treating the case as culpability A, increasing the sentence for the second death and aggravating features, and allowing substantial mitigation and credit for guilty pleas.

The central issue was whether that sentence fell outside the range reasonably open to the sentencing judge.

1. The application for leave was refused. The total sentence of nine years and nine months' imprisonment was lenient, but it was not unduly lenient for the purposes of section 36 of the Criminal Justice Act 1988.
2. The court applied the principles summarised in Attorney General's Reference (R v Azad) [2021] EWCA Crim 1846. A first-instance judge is particularly well placed to weigh competing sentencing factors. The appellate question is whether the sentence was outside the range reasonably open to that judge, not whether the Court of Appeal would itself have imposed a different sentence. Leave is confined to exceptional cases rather than borderline decisions.
3. The sentencing judge had carried out a careful and sensitive exercise. He identified the culpability A starting point, made an upward adjustment for the two deaths and other aggravating features, and then reduced the notional sentence for the exceptional mitigating circumstances. Those circumstances included genuine remorse and the exceptionally close relationship between the offender and the two deceased men.
4. The court therefore found no gross error and no sentence outside the reasonable range. It also reiterated the guidance in Attorney General's Reference (No 4 of 1989) (1990) 90 Cr App R 366 that the court retains a discretion even after finding undue leniency, and that mercy does not itself make a sentence unduly lenient.

• Court of Appeal (Criminal Division): In [2024] EWCA Crim 414, the court refused the Solicitor General's application for leave to refer the sentence as unduly lenient.
• Crown Court at Leicester: On 19 January 2024, the offender received a total sentence of nine years and nine months' imprisonment following guilty pleas to two offences of causing death by dangerous driving and related offences.