On 3 December, the LASPO Act 2012 made changes to the way in which dangerous offenders are sentenced. With just 16 days’ notice between the Statutory Instrument confirming the commencement, and the actual commencement, we can be forgiven for getting the sense that it has all been a bit rushed, a bit last minute and bit careless.
In summary, the changes are as follows:
IPP and DPP (the indeterminate sentences for public protection) are repealed.
A new Extended Determinate Sentence (‘EDS’) was commenced.
A new automatic life sentence was commenced.
No problems there then. Out with the old and in with the new? Not quite.
A little more detail
The circular issued by the MoJ explaining the changes can be seen here.
IPP was repealed (LASPOA 2012 s 123), meaning that, from 3 December, no offender can receive an IPP, DPP or Extended Sentence (2003 Act extended sentence).
The new EDS sentence was commenced (LASPOA 2012 s 124). However, this sentence will be applied retrospectively. By virtue of Criminal Justice Act 2003 s 226A(1)(a) (inserted by LASPOA 2012 s 124), an offender can receive an EDS sentence irrespective of when his or her offence was committed, provided that the statutory requirements are met.
The new automatic life provisions were commenced (LASPOA 2012 s 122), however these are only available for offences committed after the section was commenced. They apply where the offender has committed a second serious sexual or violent offence, and the sentence would have been at least 10 years, notwithstanding the automatic life sentence. That date was the 3 December.
Although that appears simple, the myriad of LASPOA 2012 sections, schedules, commencement and transitory and saving provisions orders make trying to fathom what the position is far from easy. I think
So where does that leave us? Well, I think I have got the hang of it, thanks to a helpful civil servant and some serious Westlaw searching.
Offence and sentence prior to 3 December
If an offender committed his or her offence prior to 3 December and were sentenced prior to 3 December, then he or she are liable for an IPP sentence. Although the repeal was announced many months prior to the commencement date, IPP sentences were still available and were still being imposed, despite the widespread acknowledgement, by lawyers and politicians alike, that the sentence was unfair, unpredictable and generally a complete disaster.
Offence and sentence on or after 3 December
If and offender committed his or her offence after 3 December (and therefore were sentenced after also), then they are liable for either and EDS sentence or automatic life (where the statutory requirements are made out).
But what if your offence was committed before 3 December, but you are to be sentenced after 3 December?
Well, it depends when you were convicted. If you are convicted after 3 December, you can’t get IPP. You also can’t get automatic life (if it would have applied). You can however get an EDS sentence. If you were convicted before 3 December, then you can get IPP or the old 2003 Extended Sentence, but you cannot get the EDS sentence. So what is the problem?
A civil servant informed me that there is no lacuna for offenders who fall into the third category where their offence and sentence date fall either side of the magical 3 December date. The reason for this is that automatic life doesn’t replace IPP – EDS does. Why then, you might ask, do we need the automatic life sentence? Well as with any mandatory sentence, it tends to be political posturing over any real substantive need, but that is another story.
So, EDS is to replace the (now) old (but actually new, just not ‘new new’) Extended Sentences under the 2003 Act and IPP/DPP sentences. That purports to cover all manner of dangerous offenders, which previously would have attracted the shortest possible extended sentence, right the way up to the toughest IPP – which remember, the LCJ says is practically a life sentence, R v Lang 2005 EWCA Crim 2864 para 8
EDS – When can it be passed?
The new EDS works in a similar way to the previous extended sentences:
1. The Offence must be a specified offence under the 2003 Act. A full list is here – it should be noted that this is much wider than the Sch 15B offences. For example, racially aggravated common assault is included.
2. The dangerousness test must be passed – i.e. that there is a significant risk of serious harm to members of the public.
3. Qualifying Conditions
a) D has been previously convicted of a Sch 15B Offence at the time the offence was committed, or
b) The appropriate custodial term is at least 4 years
EDS – What does it mean?
An EDS sentence is one where the judge specifies the custodial term and then specifies a period of extended licence. This is in addition to the licence that the offender would be subject to on release from the custodial term. Offenders serve 2/3 of the custodial term before being considered for release by the parole board. Unlike IPP sentences, the offender cannot be kept in prison beyond the expiry of their custodial term.
So, if someone received 6 years custody and a 3 year extended licence, they would serve at least 4 years in custody and be subject to a 5-year extended licence. This will have conditions attached to it with which the offender must comply.
The EDS sentence should be unproblematic for offenders who would previously have received an Extended Sentence (2003 Act) or an IPP sentence with a shorter minimum term.
However, where an offender would have previously received a lengthy minimum term with an IPP sentence, because there is a real need to protect the public, the judge will only be able to pass a determinate sentence in the form of an EDS sentence. Where the judge feels that the parole board will need to assess when, if at all, the offender will be safe to be released, the EDS sentence will not be sufficient.
The result may be that judges feel that due to the limitations of the EDS sentence, and its limited public protection element, that a discretionary life sentence (where available) is the only option. Where a discretionary life sentence is not available, it may be that EDS sentences are imposed with longer custodial terms than commensurate with the seriousness of the offence(s).
The result can surely only be more problems – incorrect sentences (like we need more of those), more people in prison for longer than they ought to be (echoing IPP) and more discretionary life sentences (which essentially mirror the IPP sentence).
LASPO 2012 – another criminal justice policy disaster?