Third party challenges to the courts’ treatment of offenders Jeremy Horder Law Commission for England and Wales; Professor of Criminal Law, Oxford University* I will argue that – as an exception to the general rule adopted in England and Wales – third parties, including victims, should in some circumstances be permitted to bring proceedings for (inter alia) judicial review of sentences, and other measures, imposed on offenders. Such proceedings should not be ruled out when parts of sentences, or other orders, are meant to affect the interests of individual third parties themselves, and the prosecution cannot reasonably be expected to be solely responsible for protecting those interests. However, I will also conclude that, from a public law perspective, there is a preferable solution. Third parties who may be adversely affected by sentences or orders imposed on offenders should sometimes be given a limited degree of involvement in the process leading up to the imposition of those sentences or orders. Recent legislation takes us some way towards this goal. INTRODUCTION For perfectly understandable reasons, the higher courts have taken a dim view of attempts by third parties (including victims) to challenge, as by way of judicial review, sentences imposed by judges following a finding of guilt in a criminal trial. The higher courts have held that, despite the normally broad understanding given to locus standi in the law of judicial review, third parties do not have standing to challenge sentencing decisions. The reasons for taking this approach, given by Judge J (as he then was) in Nunn, 1 and by Rose LJ in Bulger, 2 can be summarised as follows: (1) Even if the victim is disposed to be wholly merciful, the defendant may still need to be punished. Contrariwise, if the victim is savagely vindictive, the defendant must be shielded from inappropriately harsh punishment. (2) Allowing (inevitably sporadic) challenges to sentences by victims will lead to wide- spread and unsustainable disparities in sentence in very similar circumstances. (3) Pressure might wrongly be brought to bear on victims (for example, by the media) to become involved in the sentencing process when they would find this painful and damaging. (4) It is the responsibility of the Crown to uphold the rule of law in criminal cases, and it is not necessary to permit the intervention of third parties to secure that end. * I am grateful to Andrew Ashworth, John Spencer and the anonymous referees for their helpful suggestions. I have also benefited greatly from Christina Hughes’ encyclopaedic knowl- edge of this area of the law. 1. R v Nunn [1996] 2 Cr App R(S) 136 at 140. 2. R (on the application of Ralph Bulger) v The Secretary of State for the Home Department, The Lord Chief Justice of England and Wales [2001] WL 98187 (QBD) (Admin Court) at [20]–[21]. I am grateful to Andrew Ashworth for his assistance in helping me to formulate my views on this case, although he may well not share them. Legal Studies, Vol. 28 No. 3, September 2008, pp. 356–373 DOI: 10.1111/j.1748-121X.2008.00095.x © 2008 The Author. Journal Compilation © 2008 The Society of Legal Scholars. . Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA