Tag Archives: Sentencing

Concurrent or consecutive sentences? – Sentencing for multiple offences



When a court has to sentence for multiple offences, the question arises as to whether the sentences should be made concurrent or consecutive to one another.

A concurrent sentence is one which is served at the same time as another, for example, B receives 2 years for burglary and 4 years for arson, concurrent. The total sentence is 4 years, because they begin at the same time.

A consecutive sentence is one which is served after another, for example, B receives 2 years for burglary and 4 years for arson, consecutive. The total sentence is 6 years, as the two sentences are added together, and one is served at the conclusion of the other.

Concurrent or consecutive – how do you decide?

The principles of totality are explained in the Totality Guideline produced by the Sentencing Council. There is no hard and fast rule as to whether sentences should be concurrent (i.e. served at the same time) or consecutive (i.e. served one after the other), and the courts are concerned primarily with the overall total – the pertinent question is whether the overall sentence is proportionate to the offending.

Concurrent sentences are generally appropriate where the offences arise out of the same incident, say for example, where a burglar breaks into a house and steals a wallet (burglary) and on his way out steals a gnome from the garden (theft). Concurrent sentences are also generally appropriate where there is a series of offences of a similar kind, especially against the same victim.

Consecutive sentences are generally appropriate where a) the offences arise out of separate and unrelated incidents and b) the offences are linked but concurrent sentences will not adequately reflect the overall criminality.


Intertwined with the issue of concurrent and consecutive sentences is that of totality. Where a court imposes consecutive sentences, say, 2 years, 4 years and 18 months (total 7½ years), the court must ask itself whether the total sentence is proportionate to the offending. For example, twenty burglaries each worth 2 years could not reasonably result in a 40-year sentence. The sentence has to reflect what the defendant has done, and how that relates to other types of offending – would it be fair to lock someone up for longer than a murder, just because they had committed five offences each worth 5 years?

Frequently, courts will reduce either the overall term, having stated the individual sentence on each individual count.

For example, 2 years + 4 years + 18 months = 7 years. Reduce 7 years by 2 years to reflect that the 7 years is too much for the overall offending.

Alternatively, the court may reduce the period of imprisonment on each count to achieve the desired result. For example, if the proper sentence on each count is 2 years + 4 years + 18 months = 7 years, but the appropriate sentence, having regard to totality is 5 years, the court may state what the sentence would be, but for totality, and then reduce 2 years to 18 months, 4 years to 4 years and 18 months to 12 months, to achieve the desired result.

Sexual offences cases

Very topical at the moment is the issue of the proper sentence to impose on defendants in sexual offences cases.

In line with the principles listed above, defendants are likely to receive consecutive sentences for offences against individual victims. Max Clifford is an example (although there are some problems with the sentence imposed upon him).

There is sure to be further judgments by the Court of Appeal in relation to this issue, so watch this space.

MPs wasting YOUR money on hopeless criminal justice legislation

Last week, I read a blog written by barrister Matthew Scott. It concerned the proposed Sentencing Escalator Bill. It is a Private Members Bill sponsored by Philip Hollobone MP, the member for Kettering.

You can read the Bill here (it won’t take long). Its essence is that where a person is convicted of the same offence on a second (or subsequent) occasion, the Bill would require that the sentence for the second (or subsequent) offence be longer than the original sentence.

You can read Matthew’s blog here. Matthew concisely and effectively demolishes the proposal. Aside from further limiting judicial discretion – the idea that judges who preside over trials or have access to the case papers are best placed to know what the proper sentence is, surprising I know, – (as Matthew very concisely and eloquently explains) the Bill would create a number of anomalies.

One such anomaly would be thus. An offender is convicted of a nasty s47 ABH, receiving 4 years. He is subsequently convicted of ABH. The Bill would require that he receives a lengthier sentence than on the first ABH, notwithstanding that the second ABH might be very minor and in realty warrant a 12 month sentence. Matthew highlights that if the first conviction was for GBH, and the second was for ABH, then the Bill would not require that a lengthier sentence be imposed. The Bill would, as he states, target those who had been fairly nasty in the past, but not those with a very nasty past.

Consider where an offender is convicted of theft from their employer, involving vast amounts of money and a sophisticated method. They receive 6 years. If they were then convicted of stealing a Mars bar from a shop, the Bill would require that they receive a lengthier sentence. (Thanks to Dan Bunting for that example).


Another Private Members Bill sponsored by Phillip Bone MP is the Young Offenders (Parental Responsibility) Bill. You can read it here. Again, it won’t take long.

If enacted it would basically mean that where a child or young person commits an offence, their parents are responsible for it. Doesn’t sound too bad you say? The effect would be that where a child commits an offence, but isn’t charged or subjected to a penalty (the meaning of which is unclear), the person(s) with parental responsibility for the child also commit and offence and are liable for the same punishment as the child would have been.

Sound fair?

The purpose of this post was not to rehash Matthew’s excellent blog but to highlight the fact that some of the people who we pay £65,000 per year (plus expenses) to represent us are wasting public time and money on idiotic proposals which will never make it onto the statute book.

If any readers live in Mr Hollobone’s constituency, and you agree with Matthew’s conclusion, and our concerns, about Mr Hollobone’s Bills and the waste of time and money he is responsible for, why not write him a letter. We’d be happy to publish it (and any reply you received).

Either way, let us know your thoughts.

Follow Matthew on Twitter @BarristerBlogger

Woman, 38, sentenced to 18 months for killing cyclist while distracted by satnav for 18 seconds

Scales of justice

Achieving the correct balance between mercy and punishment is difficult

On The Telegraph website on Saturday 7 September, the following headline appeared above a story about death by dangerous driving:

It took satnav 18 seconds to tear two families apart

The article reported: “I hate the word ‘accident’,” says the victim’s widow, her eyes red with grief. “She bloody murdered him as far as I’m concerned.”

It continued:

Mrs McClure, 38, was found guilty at Reading Crown Court of causing death by dangerous driving and is now starting an 18-month prison sentence.

The article is powerfully written. Describing the collision, it states:

“The prosecution would later say she had at least 18 seconds in which to see him and make a slight adjustment to go past.

One, two, three, four, five… She was looking down at the satellite-navigation system in the car instead of at the road, according to her own statement.

Six, seven, eight… She was travelling at 40mph or more, and he was getting closer, fast.

Ten, 11, 12… She was trying to make the satnav zoom out for a better map, she told the police.

Thirteen, 14, 15… Tony was dressed in a bright-red cycling vest and silver helmet.

Sixteen, 17, 18… she saw him at the very last moment, the judge and jury at Reading Crown Court heard in July. There was no time to swerve.”

Mrs McClure’s trial

We know nothing of the facts (save for what was reported by The Telegraph) however, we can make some (fairly safe) assumptions based on what we know.

The fact that she was convicted of causing death by dangerous driving may suggest that she had offered to plead to the lesser offence of causing death by careless driving (maximum sentence 5 years – many receive community orders). This is common in such cases and the prosecution (in consultation with the victim’s family) has to make a decision as to whether that was appropriate. It may be that it was deemed inappropriate and so the case went forward to trial on the count of death by dangerous.

With no plea (and therefore no basis of plea – a written document setting out the facts as claimed by the defendant, often used to restrict their culpability) the sentence has to be based on the prosecution’s case as found by the jury.

This, according to The Telegraph, is as outlined above. There may be more to it that has not been reported.

Personal situation

We know little about Mrs McClure’s personal situation, other than she is aged 38, married and has two young children. The effect on the children – particularly if she is the primary carer for the children – is highly relevant.

It can be assumed that she has no convictions.


The Telegraph reported:

“Judge Nicholas Wood said she was “avoidably distracted” by the navigation system. Sentencing her at Reading Crown Court last Friday, he said: “This case is a tragic loss of life and shows the potential dangers of looking at a satnav while driving, even at an average speed.”

The judge said Mrs McClure had “failed to have a proper regard for a cyclist, a vulnerable road user”.

Considering the guidelines, that would suggest that the judge placed the case into level 3 – driving that created a significant risk of danger . The guideline suggests a number of scenarios which may fall into level 3, one of which is:

•             Driving whilst avoidably distracted

It is arguable that the length of time during which she was distracted warranted an increase from the level 3 starting point (3 years).

It is unclear as to why the sentence was below the starting point. The judge should have given his reasons for this when sentencing. It may be that the remorse, the help given at the scene and the previous (assumed) good character warranted a reduction.

Divided views

In another article on The Telegraph over the weekend, Mic Wright wrote about the case:

No one who kills with their car as a result of that kind of gross negligence just “makes a mistake”. A speeding motor vehicle is a weapon in reckless hands. It doesn’t matter if that driver is a nice woman who bakes cakes and cares about her community. Fiddling with a satnav as you move down a road at 60mph is inexcusable. It is too easy to say: “But it could happen to any of us”.

That is certainly a view shared by many.

The views of the victim’s family in this case – that the sentence should have been longer and that death by dangerous driving is akin to murder – are completely understandable.

However, from a (necessarily) dispassionate view point, one might ask what would be achieved by imprisoning Mrs McClure for 3 years, or 6 years or 9 years. No sentence can adequately mark the loss of life, not even a life sentence.

The sentence must reflect the factors of the offence – this was a piece of seriously bad driving. Had the victim been 1 minute earlier, or Mrs McClure been 1 minute later, then the collision most likely would not have happened. It is for that reason that many see death by driving cases as misfortune, and that can ‘happen to anybody’.

There has to be a balance. Custodial sentences for seriously bad driving are necessary, because, driving a vehicle on a road comes with great responsibility. The consequences of mistakes or poor decisions are all too apparent. However, the other side of the scales, to achieve that balance, is that no one sets out to kill someone when they get into their car. To advocate lengthier sentences above those currently imposed, would be to unduly ‘skew’ the sentencing system and result in disproportionate sentences for people who, often, have made a terrible error of judgement.

Crime and Punishment, or Law and Order : Trondheim

A toddler is taken by two boys and brutally killed by them. It’s a senseless, and in some ways sadistic, killing. But the victim isn’t Jamie Bulger, it’s a 5 year old Norwegian girl – Slije Redergard. The killers have never been named in the media, but they were 6 year old boys.

The two killers were four years younger than Jon Venables and Robert Thompson and even in England they would have been too young to be prosecuted. But the four year age gap is not the only difference – the way that the two communities dealt with the child killers were poles apart.

Mr Venables and Mr Thompson were, at the time of the killings, ten year old boys. There was an immediate outpouring of hate when they attended court and many people expressed outrage at the fact that, when they were found guilty, they ‘only’ received a life sentence with a minimum term of 8 years.

As is well known, Mr Venables re-offended after his release and was imprisoned for child pornography offences. With the news that Jon Venables release was directed by the Parole Board, the reaction has not been restrained. Jamie’s mother, Denise Fergus, has expressed her anger at the release, as well as her view that the Parole Board got it wrong. I’m not criticising her, her reaction is understandable – she has, after all, lost her son.

But she is certainly not alone in her views. A quick search on twitter (#justiceforjames) shows that there is a great deal of anger. One, chosen at random, is :


Is our reaction right? It is useful to look at just how different the reaction in Norway was. Mr Thompson and Mr Venables were tried as adults in the Crown Court, their mugshots released to the public. In Norway on the other hand”Silje’s killers were back at [a different local school] within a week. The local community [who knew their identities] were encouraged to air their views and brought together to grieve openly … there were no reprisals against either of the boys or their families. They were able to carry on living on the local housing estate.”

In Trondheim there were no calls for punishment, let alone the outpouring we saw in the UK. This seemed to be across the board. Silje’s mother, for example, agreed that they should not be punished sayingI feel sympathy for them … They need compassion. They must be treated as children and be shown kindness and concern rather than vengeance.”

Of course, the boys in Norway were six, rather than ten in England. It doesn’t appear that that would have made a difference – the age of criminal responsibility is 15 (rather than 10 in England – the lowest in Europe). A journalist who covered the case saidThey were six-years-old, but even if they were 11, it would not have been an issue.” The police officer in charge of the case, when (it seems) he was asked about the Bulger case, said “I really don’t like to hear that you can put children, ten years old, into custody“.

Have we got it right? Or could we learn from our cousins across the North Sea? I can’t pretend that I’ve got all the answers, but sometimes I think we ought to have a proper conversation as to whether our approach to penal policy is right. There is a case against hate, a case for compassion in dealing with criminal acts committed by children.

Making policy based around individual cases is always dangerous, especially when dealing with ‘outliers’, cases such as these that are extreme. Of course the Slije Redergard killing is different to the Jamie Bulger one, and England is different to Norway. Having said all of that, let’s not forget that even allowing for the differences in population (and urban populations), Norway has lower crime, lower costs of incarceration (and the criminal justice system in general) and a lower recidivism rate. Maybe we could learn from them?


Mark Bridger found guilty of murdering five-year-old April Jones

Mark Bridger has today, 30.5.13, been found guilty of murdering five-year-old April Jones.

April Jones

Photograph: Dyfed-Powys police/PA – courtesy of The Guardian


April went missing in October 2012.  A thorough police investigation was launched but her body was never recovered. 

Bridger seized April whilst she played near her home in Wales.  He later murdered her, concealed and disposed of her body.  The jury at Mold Crown Court found Bridger guilty after just over four hours of deliberation.

The press have now revealed that Bridger confessed to the murder whilst on remand in prison.  His confession was to a priest who visited him in prison, to whom he told he had disposed of April’s body in a river.  Police are thought to have doubted his confession, as it is alleged that he provided many misleading suggestions as to where her body might be.

Police later found fragments of bone, confirmed to have been from April, in Bridger’s fireplace and bath.

The investigation also revealed that Bridger harboured a fascination with child sex abuse images; during the trial the prosecution revealed that he had viewed a cartoon of such activity just hours before April was reported as missing.  Police also found a videotape containing footage of a rape and murder scene from a well-known film.  The rest of the film was missing.

DS Andy John led the investigation.  He is quoted as having said:

“For me the computer evidence points towards an individual who is evil, manipulative and has premeditated this…The unhealthy interest he has in indecent images of children for me is a clear indicator that this individual was going to commit something as horrific as he did.”



Sentence is to take place this afternoon, when this post will be updated.

Bridger will receive a sentence of life imprisonment for the murder, but the tariff is as yet unknown.  Because of the aggravating features of this tragic case, Bridger is unlikely to receive less than a thirty-year tariff, and some believe he may receive a whole life sentence.



Will life mean life?

Whole life tariffs are reserved for those convicted of the most serious offences.  Sources suggest that there are only 46 prisoners serving whole life sentences within the UK.  Five of these individuals appealed their sentences to the European Court of Human Rights last year, citing that the sentence was incompatible with their human rights under article 3.  They lost this appeal

An overview on sentencing can be found here.

More on whole life sentences can be found here.

More on the case can be found here.


Huhne and Pryce – The argument AGAINST imprisonment

Prison should be reserved for those offenders who pose a risk to the public. Controversial it may be, but that is the only way that imprisonment can have a purpose and role in preventing re-offending.

Chris Huhne and Vicky Pryce arriving at Southwark Crown Court earlier

Huhne and Pryce were both convicted of perverting the course of justice, a serious offence carrying a custodial sentence of up to life imprisonment. But should such an offence carry a custodial sentence?  Personally, I would be happier to see Huhne and Pryce sentenced to a community order, repaying their substantial debt to the public by cleaning our streets or working in charity shops.  But the fact is, that was never going to happen.  Guideline cases suggested a custodial sentence of between 4 and 12 months would be suitable, and so Mr Justice Sweeney cannot be criticised in passing a sentence of eight months in respect of both of them.  But the reality is that they are likely to serve somewhere between 2 and 4 months, and be released on licence to serve the remainder in the community.

Two to four months in prison is undoubtedly going to be a shock to the system for the likes of Pryce and Huhne, neither of whom have been imprisoned before, but what good will it actually do?  It might give a feeling of satisfaction to the general public to see them shipped off to HMP Holloway and HMP Wandsworth, but have we considered who will be footing the bill of their stay?  For that would be us, the tax paying public.  It’ll cost us around £25,000 to feed and house the pair for them for 4 months, added to that is the cost of of the pair being on licence, post-custody, which the National Offender Management Service averages out at approximately £2,380 each.  Had they been sentenced to a community-based penalty, not only would they be providing a public service but the tax payer wouldn’t be footing the bill for their food and accommodation.  The costs of their supervision are estimated to be around £5,240 per offender.  Considerably less than the costs of incarceration.

What I advocate is a total change in sentencing powers and practice.  Prison should be reserved for violent offenders who pose a real threat to the public.  Our prisons should not be open to those who steal from shops, are addicted to cannabis or pervert the course of justice.  Individuals who have committed non-violent offences should be diverted away from incarceration and serve their sentences in the community.  Not only will this reduce the strain on our vastly overcrowded prisons and be cost-effective, but it will ultimately reduce re-offending as those serving custodial sentences will be subjected to intensive rehabilitation, the likes of which we simply cannot afford at present.  This is not a new idea, the Howard League for Penal Reform have long argued that a cut in prison sentences and an increase in community-based penalties will have a dramatic effect in lowering re-offending rates.  The fact is this isn’t going to happen overnight, but the increase in suspended sentences (now available for sentences of 24 months or less, an increase of 12 months since 2012) is a step in the right direction.  But we need to take more of those steps.  For things to change we need to see a total reform of criminal sentencing.  Only then will we see re-offending rates substantially reduce, which is, arguably, the most important aim of criminal sentencing.

Photo courtesy of BBC News

R v Huhne and Pryce – The key information

R v Huhne and Pryce – Sentencing hearing

Southwark Crown Court

11 February 2013, 2pm

Mr Justice Sweeney

Facts can be found here.

Here is an explanation of what perverting the course of justice is.

The emails between Pryce and The Sunday Times can be found here. 

An explanation of how Huhne tried to avoid pleading guilty can be found here

Click here for our report of when Huhne pleaded guilty.

Here is a timeline of the Pryce trial. 

The questions asked by the first Pryce jury can be seen here.

See here for an opinion piece on the potential consequences of discharging the jury for failing to reach a verdict rather than because there were concerns over the propriety of any verdict they would return.

When might Pryce and Huhne be released? Here is an explanation of release provisions. 

What is the likely sentence? See here for a brief look.

R v Huhne and Pryce – A brief chronology

R v Huhne and Pryce – Sentencing hearing

Southwark Crown Court

11 February 2013, 2pm

Mr Justice Sweeney

Well, where to start? The Huhne/Pryce saga has provided many column inches over the last month or so. On Friday, Vicky Pryce was convicted of perverting the course of justice by a unanimous verdict. Chris Huhne had earlier pleaded guilty after attempts to have the prosecution stayed as an abuse of process.

So, let’s set out exactly what has happened.

In short, Huhne was caught speeding, attracting 3 penalty points. He already had 9 on his licence and so would be liable to be disqualified via the totting up procedure. He asked (or made, if you believe Vicky Pryce) his then wife, Pryce, to ‘take’ the points for him. This essentially involved Chris Huhne completing a form stating that he was not driving, and Vicky Pryce completing a form stating that she was driving. This would absolve Huhne of liability and therefore he would retain his licence.

He did retain his licence, for all of 3 months. He was caught speeding once again and was disqualified.

Subsequently, Chris Huhne had an affair with Carina Trimmingham, his PR aide. He left Pryce and the family home.

Pryce then sought to ‘ruin’ Huhne and began conversations with The Sunday Times about how best to orchestrate Huhne’s downfall. The allegations of Huhne making someone take his penalty points subsequently turned into an admission that Pryce had been a part of the deception.

See here for the emails between Pryce and The Sunday Times. 

Pryce was advised that there was a risk but that it was ‘highly unlikely’ that she would be prosecuted (note: don’t take your legal advice from a journalist). The allegations were made public and so the CPS became interested. Hunhe was charged with perverting the course of justice and amid blanket denials from Huhne, the case began to strengthen.

Here is an explanation of the offence.

Huhne pleaded not guilty. Pryce pleaded not guilty.

Huhne made a series of attempts to have the prosecution kicked out. Andrew Keogh of Crimeline wrote a superb explanation of the basis for the abuse of process applications.

Click here to see how Huhne tried to avoid pleading guilty.

This led to Huhne pleaded guilty on the day set for trial.

Click here for our report of when Huhne pleaded guilty.

Pryce’s trial began and it appeared that the defence she was seeking to establish was one of marital coercion.

There was extensive legal argument over the defence of marital coercion; it had not been before the courts since R v Shortland 1996 – pre the Human Rights Act. It was therefore necessary to re-examine the law and determine whether it was lawful to require Pryce to prove that she was coerced, or whether, pursuant to her article 6 rights, and the presumption of innocence, the burden should be ‘read down’ to an evidential burden only and that it was for the prosecution to disprove the claim that Pryce was coerced. Click here for the reasons given by Sweeney J.

Here is a timeline of the trial. 

The jury asked a series of questions which created quite a stir on Twitter and in the press. They can be seen here.

The jury were then discharged for failing to reach a decision (although in light of Sweeney J’s comments about the questions asked, it was suspected that a factor was the fact that the jury had appeared to fundamentally fail to grasp how a jury trial works and what their function was.).

See here for an opinion piece on the potential consequences of discharging the jury for failing to reach a verdict rather than because there were concerns over the propriety of any verdict they would return.

The CPS announced they would seek a retrial and a retrial was set for the following week.

Pryce was convicted on Thursday 7 March of perverting the course of justice. In a statement, she said she was disappointed.

Sentencing was adjourned until Monday 11 March 2013. When Huhne pleaded guilty, he was told to be under no illusion as to the sentence he would receive – this is a slightly flowery way of saying he can expect a custodial sentence. This would have come as no surprise to him, I am sure.

Pryce was given the same warning on Thursday.

Sentencing will take place at Southwark Crown Court at 2pm before Mr Justice Sweeney.

R v Huhne and Pryce – What is the likely sentence?

R v Huhne and Pryce – Sentencing hearing

Southwark Crown Court

11 February 2013, 2pm

Mr Justice Sweeney

Chris Huhne and Vicky Pryce were warned to be under no illusion as to the sentence they would likely receive when sentenced. This means they are going to receive custodial sentences.

The Court of Appeal have said that this offence should always lead to a custodial sentence ‘in all but the most exceptional circumstances’.

But how long? Well let’s first look at Huhne. He pleaded guilty, on the day of trial. Here is our explanation of the usual way in which credit for a guilty plea is calculated.

Based on that, one may think he is entitled to no more than 10%. However, based on his abuse of process applications (for an explanation, see here) it may be that Huhne is entitled to more. It will not have been Chris Huhne’s decision to have the abuse of process applications immediately before the trial and so it could be argued that his late plea is not a consequence of his persistent denials of guilt. Consequently, it may be said on his behalf that he would have pleaded guilty earlier, had the abuse applications been heard sooner. If Mr Kelsey-Fry is feeling cheeky, he may even argue that Huhne had the right to make the abuse applications and upon their determination (against him) pleaded at the first reasonable opportunity. Such an argument is unlikely to succeed. He may receive 20% credit – but it is difficult to predict.

Turning to Vicky Pryce, she did not plead guilty and so she receives no such credit. She was obviously less culpable than Huhne, who instigated the offence, and gained nothing from the offence.

Perhaps Huhne and Pryce could end up with the same sentence – the 20% credit for plea wiping out the uplift for being the driving force behind the offence.

The persistent denials have certainly done them no favours.

My personal view is that 9 months would be appropriate, however, on the authorities, it may be that 6 months is more in keeping with sentencing practice.

Of course, there is much to be said in mitigation – how much both of them have lost, personally and professionally, and so the range would appear to be from 4 months (any shorter would not mark the seriousness of the offence) to 16 months (any longer would certainly trouble the Court of Appeal.

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?