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.
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.