Practice and Procedure


PUBLISHED June 5, 2003

The Attorney-General was refused leave to refer a sentence that he considered to be unduly lenient as when he exercised his discretion he was not fully aware of all the facts of the case and some of the information on which he relied was incorrect.Application by the Attorney-General to refer a sentence under s.36 Criminal Justice Act 1988. The offender ('S') faced an indictment at Bristol Crown Court with one count of conspiracy to acquire the proceeds of criminal conduct and a second count of an offence in relation to drug trafficking proceeds. S pleaded guilty on the basis that she had dealt with the proceeds of crime but denied that it was drug trafficking money. The Crown indicated that it accepted those pleas. No formal verdict was recorded but thereafter the case had to proceed on the basis that the money was not established to be the proceeds of drug trafficking. The Attorney-General's reference recorded that S had admitted an offence of conspiracy to acquire, possess or use another person's proceeds of crime but then went on to detail certain circumstances which related to dealing with the proceeds of drug trafficking. The Attorney-General listed the following aggravating factors which influenced his decision: (i) the prevalence of this type of offence in this particular locality; (ii) the period during which the offences were committed; (iii) the amounts of money laundered; and (iv) the fact that the proceeds of crime arose from trading in illicit drugs.HELD: (1) When considering the question of whether to grant leave it was important to understand the safeguards that Parliament thought were appropriate when changing the law from the position that there was no question of increasing a sentence. (2) It was clear that the Attorney-General exercised his discretion on a false basis. Further enquiries showed that the exercise of the discretion was on a factual basis that was even more removed from the true position. The proceeds that were accepted by the Crown as being those that were dealt with were one-third of the total of the monies which had been shipped as a result of S's activity. This meant the amount S was involved dishonestly in was ?20,000 not £76,000. (3) It was now accepted that the aggravating features relied upon were wrongly asserted to aggravate the offence. The first and fourth features were not factors that could be taken into account. (4) The other two grounds were not as strong as appeared from the reference. There had been a lengthy period of offending but it was accepted that for a substantial part of it S did not appreciate that she was dealing with the proceeds of crime and thus was not committing an offence. Further, the extent of the money laundered was much smaller than that which had been appreciated. (5) When the Attorney-General exercised his discretion, he had not been put fully in the picture as to the nature of the case that he was considering. (6) Another concern was that S was a young woman of 20 years who had two young children. There was no doubt when reading the judge's sentencing remarks that this was a factor that he considered had to be taken into account in deciding the appropriate sentence. There was no word of these personal circumstances in the reference and, therefore, there was no reassurance that the Attorney-General took that factor into account when clearly it needed to be considered. (7) In those circumstances, it was not possible to conclude that Parliament's safeguards were effective in this case.Application refused.