Historically, a rule of English law has been that the Prosecution do not have a right of appeal against anything that happens in a Crown Court. This came about for good reasons, to stop a defendant being harassed by the government and give them a level of certainty.
Can any sentence be referred?
Only certain cases (that are deemed to be sufficiently serious) can be referred. This is any case that is indictable only as well as cerain listed offences. The offences that are listed are all either way ones (you can find a complete list here and here) and most are sexual offences and drug offences.
What is the test – is it the same as when a defendant appeals?
Firstly, there is a safeguard in that the Attorney-General must consider the case personally. Only then can he refer the case. The Court of Appeal is only able to interfere with a sentence if it is “unduly lenient”. It is not supposed to give the Prosecution a general right of appeal and should not be seen as such.
A good statement of this if from AG Ref (No 4 of 1989) where it was said that “A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate … However it must always be remembered that sentencing is an art rather than a science; that the trial judge is particularly well placed to assess the weight to be given to various competing considerations; and that leniency is not in itself a vice. That mercy should season justice is a proposition as soundly based in law as it is in literature.”
Even if the Court of Appeal think that the sentence is unduly lenient, then there is still a discretion to not increase the sentence.
The sentence has to be referred within 28 days. There is no ability to extend this.
Is any allowance made for the fact that someone’s sentence is being increased?
Historically, the Court of Appeal has always made some allowance for this (often called double jeopardy). Generally there was a much greater allowance if it involved imposing a custodial sentence on someone who was originally sentenced to a non-custodial one.
Are these common?
Whilst they have become increasingly common in recent times, they are still relatively rare (about 100-150 a year), certainly when compared to the number of appeals against sentence every year.