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 new 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 Sch 15B CJA) 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 ss11, 12 and 15 Sexual Offences Act 2003 that are also amongst the offences listed).
How will it play out?
It is likely that it will greatly reduce the number of people who are serving indeterminate sentences (but may lead to an increase in determinate sentence length). There will almost certainly be more extended sentences.
Are the old authorities relevant?
The old caselaw 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 …
Extended Determinate Sentences (New 2012 extended sentences)
The 2003 CJA Extended Sentences are repealed and replaced (s124) with new 2012 style Extended Sentences.
Firstly, unlike with life sentences, this is ‘retrospective’ in that it applies whenever the offence was committed.
Requirements for an extended sentence:
It applies to any offence that is a specified offence under the 2003 Act. A full list is here – http://www.legislation.gov.uk/ukpga/2003/44/schedule/15 which is much wider than the Sch 15A offences. For example, racially aggravated common assault.
Note – this also applies to sexual offences that were abolished by the Sexual Offences Act 2003.
2. Dangerousness Test
The Judge has to consider that the (now relatively familiar) test of dangerousness under the 2003 Act is met – ie that there is a significant risk of serious harm to members of the public.
For this, the cases of Lang etc should still apply.
Obviously, if a life sentence is required, then this won’t apply.
There are two conditions that must then be met:
(a) D has been convicted of a Sch 15B Offence at the time the offence was committed, OR
(b) The appropriate custodial term is at least 4 years
Then an extended sentence may be passed (it is discretionary).
As is currently the position, there must be an extension period of up to 5 years (for violent offences) or 8 years (for sexual offences), not exceeding the maximum.
- It may still be that some people will qualify under (a) for extended sentences for relatively minor offences (as was the position under the un-amended 2003 Act). This will only impact on a very small number of people however.
- The purpose of extended sentences is to protect the public. However, the consequences of the release provisions is that people can spend a relatively short period of time on licence which could be counter-productive?
- Is this lawful? Is it a breach of Art 7 (no retrospective punishment)?
For example – D is convicted of indecent assault in 1980 and fined (it used to happen…). He is convicted now of indecency with children committed in 1985.
At the time, the maximum sentence for that would have been 10 years. Whatever sentence the Judge would pass, D can receive an extended sentence. This is not a sentence that he could have received at the time – is that permissible? Probably, as the actual length of the sentence is not higher (still being capped at 10). But expect this to be argued.
- If someone of good character is up for, say, a s18 where the appropriate determinate sentence is 4½ years. An extended sentence is available if the person is dangerous. However, the individual would serve 3 years rather than 2¼. On the principle that new sentences should be adjusted to ensure people serve the same period of time, if that is followed then the sentence is 3 years and 4½ months, so an extended sentence is not available. The chances of the courts buying this argument are, with the current leadership, minimal (in my view).
For someone under 18, the two strikes rules don’t apply. If a life sentence (of detention rather than imprisonment) is not required, then an extended sentence can be imposed if the determinate sentence would be four years of more (there is no exception for those previously convicted of a Sch 15B offence).
If someone is serving an extended sentence, then there is automatic release after 2/3 of the sentence, unless the custodial part is 10 or more years, OR, it is a Sch 15B offence (basically), in which case they go before the Parole Board at the two thirds stage and will be released on the Parole Board’s recommendation. Given the number of IPP prisoners who stayed in post tariff however, it is likely that only a very few will be released at that stage.
New life sentences are available only for offences committed after 3rd December whereas anyone sentenced after 3rd December can receive a new extended sentence.
IPPs (and the old extended sentences) are abolished. For someone convicted before 3rd December however, they are still available (Art 6 Commencement Order no 4) as well as the new Extended Sentence. There is no provisions for re-trials ordered by the Court of Appeal, but this will impact on so few people that the courts can probably fudge it.
Does this make sense?
The official position of the MoJ is that this is all part of a carefully constructed plan and protection on ‘transitional’ cases is provided by the extended sentences. The strong suspicion of those ‘in the know’ however is that this was a cock-up by the MoJ who didn’t implement the legislation with the care that they should have.