The history of sentencing over the last 15 years has not been a happy one.
- 1st October 1997-29th September 1998 (24th August 2000) – s1 Crime (Sentences) Act 1997 (with minor amendments of no real consequence in Crime and Disorder Act 1998 from 30th September 1998)
- 25th August 2000-3rd April 2005 – s109 Powers of Criminal Courts (Sentencing) Act 2000
- 4th April 2005 – 13th July 2008 – s225 (etc) Criminal Justice Act 2003
- 14th July 2008 – 3rd December 2012 – s13 Criminal Justice and Immigration Act 2008
Apart from the 2008 changes, the relevant date was the date of the offence. For offences sentence post 14th July 2008, but committed and any time between 4th April 2005 and 3rd December, the 2003 provisions (as amended) apply.
The legislation (s122 LASPO)
The new legislation came into force on 3rd December and has some similarities to the ‘old’ two strikes and you’re out. The main difference relates to the qualifying conditions and, whisper it, Chris Grayling (well, Ken Clarke) is softer than Labour. Under the new law, there’s a requirement that both the first sentence attracted, and the second would otherwise attract, a 10 year sentence (or equivalent extended/life sentence, but NOT IPP), so far fewer people will be caught by it (although whether Grayling will try and reduce this remains to be seen – I wouldn’t be surprised).
The list of offences (Sch 18 LASPO – introducing a new CJA 2003 Sch 15B ) that this applies to is basically the same (there’s more sexual offences from the Sexual Offences Act 2003 and terrorism offences). Indecent photographs of children under s1 Protection of Children Act 1978 is the only old offence that is added, although this is really symbolic as the maximum sentence is 10 years so, unless the maximum sentence is passed, this is unlikely to ever be relevant (as is the case with ss 11, 12 and 15 Sexual Offences Act 2003 that are also among the offences listed).
Are the old authorities relevant?
The old case law on what amount to exceptional circumstances etc are unlikely to be resurrected.
Much of the old arguments centred around the question of the compatibility of the legislation under Art 3 (whether of itself, or in the particular circumstances of the case). It’s unlikely there will be any real issues given the conditions are much tighter –the requirement of a previous 10 year sentence means that there has to be a history of fairly heavy criminality. That, coupled with the requirement of a sentence of at least 10 years for the new offence, means that it won’t be that many people that this applies to. Also, the ‘exceptional circumstances’ exception is drawn wide enough that where there would be a genuine injustice, a life sentence need not be passed.
But it may be time to brush off cases such as Offen …