Tag Archives: EDS

‘Lex mitior’ – IPP, Extended sentences and giving defendants the benefit of new, lenient, legislation

prison wing

The transcript is available here: R v Docherty [2014] EWCA Crim 1197

Shaun Docherty pleaded guilty to two charges of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861. On 20 December 2012 he was sentenced by the learned judge to a term of imprisonment for public protection (“IPP”) with a specified minimum custodial term of 5 years and 4 months.

The facts are unimportant for the purposes of the case, but are recounted in the judgment, with some additional information surrounding the proceedings, at paras [2] – [13].

The probation service concluded that a) he posed a high risk of serious harm – in summary, considered him to be ‘dangerous’ – b) there was a very high risk of violent re-offending, and c) the most appropriate sentence was IPP.

The Judge had regard to that report and found that Docherty was indeed ‘dangerous’ and imposed an IPP sentence.

There was no challenge to the length of the minimum term.

The issues

Where to start? Well IPP was repealed on 3 December 2012. Docherty was sentenced on 20 December 2012, a short while before the repeal was effective.

At that time, the scheme for sentencing dangerous offenders – where a judge considers that a defendant poses a significant risk of serious harm to members o the public – was as follows:

1)      Life sentence (discretionary, under common law or CJA 2003 s.225)

2)      IPP (CJA 2003 s.225)

3)      Extended sentences or ‘EPP’ (the previous incarnation, CJA 2003 s 227)

The grounds of appeal were as follows:

a)     The judge failed to consider whether lesser restrictions, including the old style extended sentence of public protection (“EPP”) under the 2003 Act, instead of IPP would have enabled proper protection of the public.

b)      The abolition of IPP prior to the sentencing in this case obliged the court to impose an EPP rather than an IPP in order to comply with Article 7 (or Articles 5 and 14) of the European Convention on Human Rights (“ECHR”) and the international norm and principle of “lex mitior”.

In essence, the argument was that IPP was wrong in principle.

The first ground

‘The Judge failed to consider whether a lesser sentence would have enabled proper protection of the public.’

In C & Others [2009] 1 WLR 2158 the Lord Chief Justice stated that IPP was the “most draconian sentence” apart from life, and that it should not be imposed if an overall sentence package of lesser measures provides appropriate protection to the public. [20]

The Court of Appeal accepted that ‘ the judge did not expressly give reasons in his judgment for not adopting the alternative of an extended sentence, with other precautionary measures.’ [21]

However, the Court found that the reason was ‘entirely clear’, namely that:

i) the judge was unable to discern the time scale within which the danger posed by the appellant could be addressed, controlled and (hopefully) eliminated.

ii) a discretionary life sentence had been discounted (due to the availability of IPP.

iii) there was a perceived need for the parole board to assess the risk posed by Docherty (which was not available under the EPP regime). [21]

The Court concluded: ‘We have no doubt that he had the full range of options in mind, and that he gave the issues full consideration even if he did not spell them out explicitly.’ [21] and ‘The sentence of IPP was clearly suited to this case in a way that an old style extended sentence was not. [22]

The second (more interesting) ground

‘The abolition of IPP required the court to impose and EPP sentence (not IPP) as to not do so would offend ECHR article 7, 5 and 14 and the principle of lex mitior.’

The ECHR can be found here.

The Court divided the issues into two:

Article 5 and 14

It was agreed by the parties that the issue fell within the ambit of article 5 (the right to liberty and security-with listed exceptions) and so that if there has been discrimination towards the appellant on a ground encompassed by Article 14 (the prohibition on discrimination), that Article is breached in the absence of objective justification.

The basic argument was that there was no objective justification for the treatment received by Docherty since it was dictated by the date upon which he had been convicted in circumstances where a lesser penalty would have been imposed had he been convicted after 3 December 2012 (because IPP was not available), and thus prior to his date of sentencing on 20 December 2012.

Docherty claimed that the discrimination alleged did not fall into any of the listed catgeories, and so fell into the ‘other’ category.

The Court did not agree. The decision in R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484 held that classification as a prisoner was insufficient to amount to “other status” for the purposes of Article 14. [29]

Interestingly the European Court of Human Rights came to the opposite conclusion in Clift v UK [Application 7205/07] however, relying on Kay & Others v Lambeth LBC [2006] 2 AC 465, it was clear that domestic courts  are bound by the House of Lords precedent. [30]

The Court also expressed doubts as to whether there had ‘been unjustifiable discriminatory behaviour. The mere fact of an anomaly arising from the introduction of LASPO would not of itself constitute unwarranted discrimination – see paragraph 33 of Clift (H of L).’ [31]

The Court commented that whether legislative change was effective from the date of the offence (CJA 2003), the date of sentence (CJIA 2008 amendments) or the date of conviction (LASPOA 2012), there would inevitably be different treatment. [32-33]

The conclusion in relation to Articles 5 and 14 was as follows:

Given Parliament’s legitimate desire to reform the legislation relating to dangerous offenders, we doubt in the circumstances whether asserted incongruities of the sort arising in this case properly fall within the ambit of Article 14 discrimination, but even accepting that they do, it is hard to see how, unless the appellant is successful on the Article 7 point, the State could fail to establish the necessary objective justification.

The same conclusion applies to the appellant’s further submission asserting a violation of Article 14 within the context of Article 7. [34-35]

Article 7

The complaint was that there was a failure to comply with Article 7 of the ECHR and the international principle of “lex mitior”.

Lex mitior – the Rome Statute of the International Criminal Court defines it as: ‘In the event of a change in the law applicable to a given case prior to a final judgement, the law more favourable to the person being investigated, prosecuted or convicted shall apply.’ (Article 24(2))

Article 7(1) of the Convention reads as follows:

“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than one that was applicable at the time the criminal offence was committed.”

The Court commented: Clearly, on its face there was in fact no breach, because the penalty of IPP was available at the time when the offences were committed. There is nothing in Article 7 which expresses the concept of “lex mitior”. [39]

Interestingly, Article 7 is in contrast with other international instruments:

International Convention on Civil and Political Rights (ICCPR) Article 15 states:

“(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If subsequent to the commission of an offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.” (emphasis added by the Court)

It was suggested that the modern law of the ECHR applies more widely than the express wording of Article 7, relying on  the decision of the Strasbourg court in Scoppola v Italy (No.2) [2010] 51 EHRR 12, the facts of which are as follows.

The applicant murdered his wife on 2 September 1999; the offence was punishable by life imprisonment. On 18 February 2000, he agreed to be tried under a summary procedure. It lacked some of the safeguards of a full trial but carried the advantage of reducing the available sentence to 30 years. That provision came into force in December 1999. On 24 November 2000 he was found guilty and sentenced. The court noted his liability to a life sentence, but imposed a 30 year term, honouring the terms of the summary procedure. On the same day a new legislative decree took effect. It amended the provision relating to summary procedure which reduced life to 30 years. It provided that in the event of trial under the summary procedure life imprisonment could be imposed in place of life with daytime isolation. On an appeal hearing in January 2002, the applicant was sentenced to life imprisonment pursuant to the amending legislation. Further domestic appeals by the applicant against his life sentence were dismissed.

The applicant’s Article 6 and 7 challenges were upheld and the 30 year term reinstated. [41-42]

In so deciding, the European Court decided to depart from its earlier decision in X v Germany [Application No 7900/77] that Article 7 did not guarantee the right to a more lenient penalty provided for in a law subsequent to the offence. [43]

The basis for that decision was in essence that ‘a consensus had gradually emerged in Europe and internationally around the view that application of a criminal law providing for a more lenient penalty, even one enacted after the commission of the offence, has become a fundamental principle of criminal law.’ Additionally, Italian law had recognised the principle since 1930. [para 106 of the Scoppola judgment]

Further, the absence of recognising lex mitior in Article 7 was not decisive when viewed in light of the developments in attitude to the principle. [para 107 of the Scoppola judgment]

Inflicting a heavier penalty for the sole reason that it was prescribed at the time of the commission of the offence would mean applying to the defendant’s detriment the rules governing the succession of criminal laws in time. In addition, it would amount to disregarding any legislative change favourable to the accused which might have come in before the conviction and continuing to impose penalties which the State – and the community it represents – now consider excessive. [para 108 of the Scoppola judgment]

The Grand Chamber felt it appropriate to depart from the decision in X v Germany and reinstated the 30-year term. [para 109 of the Scoppola judgment]

Counsel for Docherty sought to claim the benefit of this ruling and urged that, in consequence, the IPP having been abolished by the date of sentence for convictions recorded on or after 3 December 2012 and the new style extended sentence only being available for convictions on or after that date, the lesser sentence of an old style extended sentence should have been imposed. [45]

The Court of Appeal considered the Scoppola decision and the possible arguments for not applying it [46]

a)     The lesser sentence sought cannot be the one provided for by the new legislation (LASPO) since the new style extended sentence can only be imposed in post 3 December 2012 cases. What Mr Rule sought to obtain is the imposition of the old style extended sentence under the 2008 Act which was repealed by LASPO from 3 December 2012, as were the provisions relating to the sentence of IPP, and retaining both sentences as available to a court where a conviction had occurred before that date. Thus, while it is sought to consign the IPP to history in advance of the date provided for by Parliament, it is sought to retain the benefit of a closely-related provision which was repealed in the same way. To do so is not impossible, if Scoppola were applied, but there is an anomalous feel to it.

b)     There is a tension between the phrases “it would amount to disregarding any legislative change favourable to the accused which might have come in before the conviction” (paragraph 108), and “differences between the criminal law in force at the time of the commission of the offence and subsequent criminal laws enacted before a final judgment is rendered” (paragraph 109). The latter phrase is repeated at paragraph 119. The difference between conviction and sentence was irrelevant in Scoppola: it is central in this case. The applicant’s conviction was recorded prior to the commencement date for the relevant provisions LASPO, and prior to the making of the relevant commencement order.

c)     The reference in paragraph 108 to “foreseeability of penalties” as an essential element of Article 7 is hard to follow in the present context. The available penalties for the appellant’s crimes were clear and certain at the date of his offence. Uncertainty is only a function of retrospectivity which is prohibited by Article 7. If anything the possibility of some later, more lenient legislation applying retrospectively introduces uncertainty instead of applying foreseeability of penalties.

d)     The decision in Scoppola was by a majority of 11 votes to 6 with a strong dissenting judgment in relation to Article 7. The Article 6 violation was clear and was found unanimously. The case could have been decided on that basis alone. The Article 7 decision required the setting aside of longstanding authority.

e)     In Scoppola, there had been in place since the 1930s a provision of the Italian Criminal Code which contained the lex mitior principle.

Did Scoppola have to be followed?

The Court said:

Noting that Scoppola is a decision of the Grand Chamber, we do not consider that it can be said that the judgment represents a misunderstanding or overlooking of a significant feature of English law or practice which would or could lead to a review by the European Court. Any argument that Scoppola does not represent a “clear and constant” line of authority will founder since the decision is one of the Grand Chamber. Thus the obligation is to follow the Scoppola interpretation, subject to its application to the particular facts of the case. [51]

In essence, yes it had to be followed unless the Court considered it did not apply to the facts of Docherty’s case.

Legislative changes and domestic law

The court commented:

As our domestic law currently stands, it is clear that the subsequent legislative changes in the criminal law are presumed not to have any retrospective effect (Section 16(1)(d) and (e) of the Interpretation Act 1978), and it is well established that legislation enacted after the conviction and sentence does not affect the correctness of anything done under the law as it stood and was properly applied at the time of trial: Bentley [2001] 1 Cr App R 21, at 24 by Lord Bingham CJ. Even a later interpretation of the common law that is favourable to a convicted person does not in itself confer a right to an extension of time for appealing to the Court of Appeal: see, for example, Hawkins [1997] 1 Cr App R 234. [48]

The LASPO regime

The effect of the LASPO changes (after 3 December 2012) was that the hierarchy of sentences available prior to LASPO had changed:

Formerly, Life, IPP and EPP were available. Post 3/12/12, the sentences available were now Life and EDS (the new extended sentence).

The gap left by the IPP repeal did not mean that defendants who formerly would have received IPP would automatically receive a life sentence, but it was accepted that the repeal would mean that more life sentences would be imposed. (See R v Burinskas and our blog in December 2012)

The question for the court was whether there was a real possibility of Docherty receiving a life sentence if he was sentenced after the LASPO changes were in force (3 December 2012 onwards). [57]

The Court said: a judge under the new sentencing regime could properly and reasonably consider a life sentence as a real possibility. [58]

The sentencing judge himself recognised this in his sentencing remarks. He did not consider that a life sentence was needed when an IPP was available to him. However he went on to comment that “the position may well change with the changes in the law”. [59]

Therefore (even if it were to be recognised in English law) lex mitior did not apply as there was a real possibility that Docherty would have received a life sentence (more severe than his EPP sentence) had he been sentenced under (what he considered the benefit of) the new LASPO regime.

The appeal was dismissed.

2012 Extended Sentences (Extended Determinate Sentence)

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:

1. Offences

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.

3. Conditions

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).

Release Provisions

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.

Transitional Provisions

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.

Court of Appeal expect more discretionary life sentences in wake of LASPO


In conjoined appeals, the Court of Appeal considered the imposition of what is commonly known as a discretionary life sentence.

The appeals were heard together as they raised similar issues in relation to the correct approach to the issue of dangerousness in the wake of the changes to the Criminal Justice Act 2003 effected by LASPO.

 Life imprisonment

The court set out the circumstances in which a sentence of life imprisonment could be imposed:

1. Following a conviction for murder.

 The provisions are unchanged. The sentence is mandatory.

 2. Following a conviction for a second ‘listed’ offence.

Under CJA 2003 s 224A – the court must impose such a sentence unless the circumstances make it unjust to do so – the court described this as a statutory life sentence. This was the sentence described as ‘automatic life’ and ‘two strikes life’ by the press and the MoJ.

3. Following a conviction for a ‘specified’ offence.

Under CJA 2003 s 225 – the court must impose such a sentence where the conditions in s 225(1) and (2) are met (essentially that the defendant poses a significant risk of serious harm to the public, and that the seriousness of the offence justifies such a sentence).

This is the sentence known colloquially as ‘discretionary life’. The court took issue with that description in that the sentence is mandatory where the conditions are made out. The court said that in a broad sense, this was also a statutory life sentence.

4. Following a conviction for a sentence which carries life imprisonment but which is not a specified offence under section 225

 Of this situation, the court said this:

“The jurisdiction to impose a life sentence in an appropriate case has survived the enactment of the 2003 Act and the changes to the sentencing regime affected by LASPO. If it had been intended to abolish it, the appropriate legislative change could readily have been made by provisions restricting the life sentence (other than the mandatory sentence) to the statutory sentence or the discretionary sentence under s.225(1) and (2). As it is, neither the 2003 Act, nor LASPO, imposed any limit on the power of the court to impose a sentence of life imprisonment in such cases. Some of these offences may involve a significant risk of serious harm to the public, but are not included within the list of “specified” offences in the dangerousness provisions in the 2003 Act. One obvious example is the offender who commits repeated offences of very serious drug supplying which justifies the imposition of the life sentence. In circumstances like these the court is not obliged to impose the sentence in accordance with s.225(2), but its discretion to do so is unaffected.”

Why is this an issue?

Well as you will recall, the much criticised IPP sentence was repealed in December 2012.

Prior to the repeal, custodial sentences for serious offences were as follows:

  • Life (mandatory) – murder only
  • Life (discretionary) – limited offences such as s18 wounding and rape
  • IPP – a wide range of sentences including s20 GBH
  • Extended Sentence – a wide range of sentences including ABH
  • Determinate sentence – all serious offences

An IPP sentence was essentially a life sentence; a minimum term was set and the prisoner would be released only when the parole board was satisfied that he no longer posed a risk to the public. The test for imposing a an IPP sentence was essentially the same as ‘discretionary life’, but it was considered to be a less serious sentence in that the minimum terms were generally shorter, and they were imposed for crimes which did not carry life as a maximum sentence.

When LASPO changed the law, the hierarchy became as follows:

  • Life (mandatory) – murder only
  • Life (discretionary)
  • Life (automatic/two strike)
  • EDS (Extended Determinate Sentence) – this comprised of a determinate custodial sentence, and a licence extended beyond the normal term mandated by the length of the custodial sentence.
  • Determinate sentence

The new statutory life sentence, nor the new EDS sentence did not replace IPP. The court said:

“Many offenders who represent a danger to the public may not “qualify” for the statutory life sentence. Yet, for some offenders, the imperative of public protection continues undiminished, and is not wholly met by the “new” extended sentence. Very long term public protection must therefore be provided by the imposition of a discretionary life sentence.

[Due to the nature of an EDS sentence, which is not indefinite] in relation to the offender who will continue to represent a significant risk to the safety of the public for an indefinite period, the new extended sentence cannot be treated as a direct replacement for the old IPP.”

The court’s conclusion

“Accordingly, in cases in which, prior to the enactment of LASPO, the court would have been driven to the conclusion that an IPP was required for public protection … the discretionary life sentence will arise for consideration, and where appropriate, if the necessary level of public protection cannot be achieved by the new extended sentence, ordered.”

Essentially, the court was stating that in the absence of a power to impose IPP, a discreitonary life sentence will be imposed as the new EDS sentence will not provide the required level of protection for the public – there will be more discretionary life sentences.


This is no surprise.

In fact, three days after the repeal of the IPP sentence in December 2012, we published this post which raised exactly this question – in slightly less than neutral language – have the MoJ and Parliament inadvertently caused an increase in the number of life sentences?

Repealing IPP – the intermediary between an extended sentence and a life sentence – created a lacuna into which some (but not many) defendants will fall.

If an EDS (new extended sentence) will not suffice ie it will not provide sufficient protection for the public, then the only alternative is a discretionary life sentence.

Do we really want to be condemning increasing numbers to the heafty penalty of a life sentence? Do we need to? Should increasing amounts be spent on the ancillary costs associated by a life sentence (parole board, life licence etc.)?

More poor policy decisions from the MoJ, and the tax payer and defendants pay the price.

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?