The judge who sentenced Jeremy Vine’s stalker to five and a half years in prison made a mistake and could have given Alex Belfield a higher sentence, one of the UK government’s most senior legal advisers has said.
Yet a legal technicality means the court of appeal will not consider whether Belfield’s sentence should be increased, the Guardian has learned. Belfield is appealing for a lower jail term, prompting calls for a reform in the law to give victims more time to appeal under the “unduly lenient scheme” (ULS).
Under the current law, anyone can appeal to the attorney general, the government’s main legal adviser, if they think someone has received too low a sentence. If the attorney general agrees, they can refer the case to the court of appeal. They must do so within 28 days.
London’s commissioner for victims, Claire Waxman, herself a victim of stalking, asked for Belfield’s case to be reviewed within the 28-day deadline under the ULS.
Michael Tomlinson, the solicitor general, who deputises for the attorney general, wrote back to say he agreed that the sentencing judge at Nottingham crown court, Mr Justice Saini, “fell into error”. Tomlinson said the judge should have applied a more up-to-date law when sentencing Belfield for one of his crimes in particular – his nine-year stalking campaign against another local BBC presenter, Bernie Keith, who the judge said was “seconds away” from taking his own life as a result.
The Policing and Crime Act 2017 carries a maximum penalty of 10 years’ imprisonment “to any conduct that began before that date but occurred over a period lasting until 3April 2017 or after”.
Instead, after being “misinformed” by the prosecution, Saini relied on an older law that carried a maximum sentence of five years, on the basis that Belfield started stalking Keith pre-2017, and chose to give him two years and six months for what he did to Keith. Belfield ended up with five and a half years when the judge applied a number of consecutive sentences to be served one after the other.
Tomlinson wrote back to Waxman to say: “I agree with your analysis that the judge fell into error in concluding that the lower maximum sentence was applicable in relation to the offending against Bernard Keith and therefore the sentence may be unduly lenient.”
But instead of activating the ULS, Tomlinson referred the matter back to the sentencing judge to address the error under the “slip rule”. The matter was listed before the sentencing judge on 21 October “and, although he agreed that there had been an error in his approach to sentencing, he declined to interfere with the sentence”, wrote Tomlinson.
Tomlinson added that it was too late to make a ULS referral because “the statutory time limit for referral to the court of appeal has now passed”. Although Waxman’s original request was made within 20 days “regrettably I am unable to refer this sentence as potentially unduly lenient”, he said.
He added: “I understand that the offender is seeking to appeal the sentence and, if he does so, my office will request that the CPS draws the sentencing error to the court’s attention.”
Explaining his decision, Saini said he was “misinformed” by the prosecution about the maximum sentence available to him on the count of stalking Keith and that it was “regrettable that this was not drawn to my attention earlier”.
He added: “Mr (John) McGuiness KC, leading counsel for the Crown, has provided a frank and gracious apology to the court, which I accept. This was an oversight.”
The judge said he did not alter the sentence given to Belfield because it would have only been “modestly” higher and the “overall sentence fairly reflects the totality and seriousness of all the offending.”
Waxman expressed her frustration at the rigidity of the 28-day ULS rule and called for it to be reformed.
“I have long been calling for the ULS scheme to be reformed to allow the fixed 28-day time limit to be extended in exceptional circumstances; a right that is provided to the offender but not the victim,” she said.
“This case is a perfect example of where such discretion is needed – where the CPS and judiciary have clearly made and acknowledged a mistake in sentencing, but following due process has led to time running out to make an appeal. I will be continuing to call for reform of the ULS under the upcoming victims law to ensure victims are not failed during the sentencing process.”
The court of appeal said Belfield had applied for permission to appeal against his sentence but that it would be several months before a judge would decide whether to grant it.
• This article was amended on 9 November 2022 to add remarks – provided after publication – from Mr Justice Saini that provide further context for his sentencing of Alex Belfield.
