Tag Archives: automatic life

Skullcracker gets another life sentence for another robbery

From the BBC News website

From the BBC News website

Michael Wheatley – the Skullcracker – pleaded guilty to robbery, possession of a firearm and being unlawfully at large on 7 May.

On 29 May, he was sentenced to life imprisonment with a minimum period of 10 years.

Wheatley was in prison for numerous armed robberies. He was on day release and failed to return. Predictably, he went and robbed a bank (£18,000) and was subsequently caught in east London.


As has been widely publicised, he had extensive previous. He had 23 previous convictions for robbery, two for attempted robbery and 18 for related firearms offences.

In 2002, he was given 13 life sentences for bank robberies.


He was serving a life sentence at an open prison when he failed to return from day release.

The BBC reported that ‘He had gone on the run twice in the past and each time staged a series of violent robberies before being caught and re-jailed.’


So a straightforward life sentence? Er, not quite.

Wheatley was sentenced for the robbery and the related firearm counts. There are four types of life sentence in England and Wales:

1)      Mandatory life (murder cases only)

2)      Discretionary life (where the offender is ‘dangerous’)

3)      Discretionary life (where the offender is not ‘dangerous’)

4)      Automatic life (where the offender has particular previous convictions)

So which applies here?

Considering his previous convictions, it is undoubted that Wheatley is ‘dangerous’ within the meaning of the Criminal Justice Act 2003 which provides the power to imprison someone for life.

But also, due to his previous convictions, automatic life (also known as ‘two strikes life’) also applies. Here’s why:

a)      At the time of the new offence, Wheatley has a previous conviction (more than one actually) for armed robbery – this is a requirement under CJA 2003 Sch 15B

b)      The sentence(s) received a custodial term of either 10 years + or a life sentence

c)      He now, after 3 December 2012 (because that is when the automatic life sentence was available from) has another conviction for a CJA 2003 Sch 15B offence – armed robbery

d)     The sentence for the new offence is worth 10 years + or life

We don’t have a transcript so it may be that the Judge got it bang on. But what should have happened? The Judge should have considered dangerousness and recorded that Wheatley was dangerous and therefore was receiving a life sentence under those provisions. He should then have considered automatic life and recorded that Wheatley was also subject to those provisions.

Anything else?

The Judge should probably have made an order for Wheatley to pay £120 victim surcharge, although due to sloppy legistlative drafting this is not entirely clear.

A point of note

The way in which the automatic life sentence works means that in very rare cases, someone could receive a life sentence for an offence which does not carry life as its maximum. Here’s why:

The list of offences in Sch 15B contains offences which do not carry life as a maximum – making etc. indecent images of children (10 years) for example. If a person had a conviction for rape (max sentence life) and received 12 years, and then subsequently was convicted of the indecent images offence, and would (but for the automatic life provisions) receive the maximum 10 year sentence, automatic life would apply and they would be  in line for a life sentence, even though the new offence a) wasn’t ‘worth’ a life sentence and b) the maximum sentence for the new offence wasn’t life imprisonment.

Funny huh?

So why doesn’t life mean life?

We had a look at this issue previously, here. In essence, the ‘life’ in life sentence refers not to the imprisonment, but the sentence as a whole, being made up of a custodial term, and the life licence which the offender is subject to upon his or her release.


Nicky Suddons given second life sentence for attempted rape

Image from Daily Mail

Image from Daily Mail

Nicky Suddons, 26, has been given a second life sentence for attempted rape committed whilst on day release from prison.

An article in The Daily Mail set out the background

Previous convictions

He had received a life sentence (minimum term four years) in 2005 when aged 17 for rape and six sexual assaults. The victims were aged 13 to 28 years. Several of the attacks were committed with the use of a knife.

Day release

Whilst on day release from that life sentence, he – so say the Mail – assembled a ‘rape kit’ containing condoms, a knife, balaclava and gloves, and set about trying to rape a 50-year-old woman who was walking her dog in a park. The Mail reports that Suddons was unsuccessful in his attempted rape because the victim’s dog attacked him.

Second life sentence

Suddons was given a life sentence with a minimum term of 6 years. The Judge said:

“I strongly suspect that the lesson in your case has been learned, and it will be many years, if not decades – and it may be never – when it comes to considering your release.

You are an extremely dangerous human being. I am convinced you will sexually assault and rape women in the future if you are released.”

Suddons was convicted and so we can assume that the Judge took a starting point of 12 years. There was no credit for pleading guilty and the starting point would have been increased by his previous offending, and the fact the offence was committed whilst he was on day release. It is likely to have been mitigated by the fact that this was an attempt, and not the full offence, however the effect of that as mitigation will be limited because of the fact that Suddon was prevented from carrying out the full offence, as opposed to changing his mind and stopping the attack of his own volition.

Is this an automatic life case?

Automatic life is also known as ‘two-strikes life’. This is because where an offender has a second listed offence, they are liable to a life sentence – the conviction for the second listed offence being their ‘second strike’.

Rape is a listed offence and so as Suddons has a previous conviction for it (the 2004 rape), at first glance it appears that automatic life applies, because of his second listed offence – the 2013 attempted rape.

However, as usual, it isn’t quite as simple as it first seems. There is a condition which requires the sentence imposed for the ‘first strike’ – in this case, the 2004 rape – is of a certain length. For life sentences, the offender must not be eligible for release in the first 5 years of the sentence. In this case, Suddons would have been eligible for release after 4 years (notwithstanding that it appears he was kept in prison beyond that tariff).

So the conclusion is that automatic life did not apply in this case because there was no ‘first strike’.

The route by which the Judge determined that Suddons’ offence warranted a life sentence is therefore discretionary life under CJA 2003 s 225 – what is known as the dangerousness provisions. The Judge asked himself whether Suddons posed a significant risk of serious harm to members of the public. Clearly he did and therefore a life sentence was imposed. The minimum term was set at 6 years and so this would count as a first strike in the future, if Suddons was ever to be released.

LASPO changes – more discretionary life sentences?


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.

Potential problems

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?

Life Sentences III (automatic)

Automatic life

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 1112 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 …