Report on Mandatory Sentences - Law Reform Commission

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2.124 The Crime (Sentences) Act 1997 received the Royal Assent on 21 st March 1997, the day the UK Parliament was prorogued prior to the General Election on 1 st May. 280 Its enactment was to mark an evolutionary step in sentencing both in terms of its practical and its symbolic effects. In relation to drugs offences, its practical effect comprised a presumptive ‘three-strikes’ rule that required the imposition of a 7-year sentence - except in specific circumstances - on offenders convicted of a third Class A drug trafficking offence. 281 2.125 Thomas asserts, however, that the real significance of the 1997 Act was in what it symbolised. 282 In his view, it indicated that the Home Secretary, Michael Howard, had little regard for the opinions of the senior judiciary and was more interested in the political impact rather than the practical effect of the legislation. Above all, he asserted that the legislation set “a precedent for the introduction of mandatory minimum sentences for just about any crime.” 2.126 The Powers of Criminal Courts (Sentencing) Act 2000 replaced the Crime (Sentences) Act 1997 but, as it was a consolidation Act, 283 made no changes to the substantive law. 284 Thus, section 110 of the 2000 Act now governs the presumptive minimum 7-year sentence which applies in respect of a third Class A drug trafficking conviction. 285 The practical operation of this sentencing regime will be discussed in greater detail in Chapter 5. 2.127 In January 2012, the Sentencing Council for England and Wales published a new sentencing guideline on drug offences, which will be used by both the Crown Court and the magistrates’ courts. 286 The guideline covers the most commonly sentenced offences including importation, production, supply, permitting premises to be used for drug offences, and possession. The Sentencing Council has indicated that, under the new guideline, there are likely to be increased sentence lengths for those guilty of large scale production offences and reduced sentence lengths for so-called drug mules. Sentences for drug mules - “who are usually vulnerable and exploited by organised criminals” - will have a starting point of six years’ imprisonment. The guideline also recognises a new aggravating factor in the context of supply offences, namely, the dealing of drugs to those under the age of 18 years. 2.128 The publication of the guideline followed a public consultation on the Sentencing Council’s draft proposals. 287 It was also informed by research into a number of areas including the effects of the draft 280 281 282 283 284 285 286 287 Henham “Making Sense of the Crime (Sentences) Act 1997” (1998) 61 Mod L Rev 223. Section 3 of the Crime (Sentences) Act 1997. Section 2 established a presumptive “two-strikes” rule that required the imposition of a life sentence, except in exceptional circumstances, on offenders who had been convicted of a second serious offence. Section 4 established a presumptive “three-strikes” rule that required the imposition of a three-year sentence, except in exceptional circumstances, on offenders who had been convicted of a third domestic burglary. Thomas “The Crime (Sentences) Act 1997” [1998] Crim LR 83. The Powers of Criminal Courts (Sentencing) Act 2000 was enacted pursuant to the recommendations of the Law Commission and the Scottish Law Commission contained in the 2000 <strong>Report</strong> on the Consolidation of Legislation relating to Sentencing Cm 4626 SE/2000/15. Current Law Statutes (Sweet and Maxwell, 2000) at 6-7. Class A drugs are defined in Part 1 of Schedule 2 to the Misuse of Drugs Act 1971. The term “drug trafficking offence” is defined by section 1 of the Drug Trafficking Act 1994. Sentencing Council “Courts issued with New Guideline for Sentencing Drug Offenders” Press Release 24 January 2012. Drug Offences Guidelines Professional Consultation (Sentencing Council, 2011); Drug Offences Guidelines Public Consultation (Sentencing Council, 2011); and Drug Offences Response to Consultation (Sentencing Council, 2012). 76
drug offences guideline, 288 public attitudes to the sentencing of drug offences, 289 drug offences 290 and cases involving drug mules. 291 (c) Ireland 2.129 Drug misuse and drug trafficking have been longstanding and persistent problems in Ireland. 292 It has been noted, however, that the situation deteriorated with the advent of intravenous heroin use in the early 1980s. In addition to the problem of substance addiction, this gave rise to increased criminality and a greater incidence of HIV/AIDS and Hepatitis B and C. 293 2.130 Initially, the Misuse of Drugs Act 1977 provided for the sole offence of possessing a controlled drug for the purpose of sale or supply, 294 for which it prescribed a fine and/or a maximum sentence of 14 years’ imprisonment. 295 In an effort to combat the worsening drug problem, 296 the Oireachtas enacted the Misuse of Drugs Act 1984 which, among other matters, increased the maximum sentence to life imprisonment. 297 2.131 In spite of this, vast quantities of illicit drugs continued to be intercepted at Ireland’s frontiers. In November 1995, An Garda Síochána made a record seizure of cannabis at Urlingford, County Kilkenny. 298 Despite the size of the seizure and a number of arrests, there were no prosecutions. The Government and, indeed, several community groups made numerous attempts to combat the growing drugs problem but to no apparent avail. 299 2.132 In 1995, the Opposition moved a motion requesting the Government to respond to the “drug emergency” by introducing legislation to strengthen the law and penalties for drug importers, distributors 288 289 290 291 292 293 294 295 296 297 298 299 Research into the Effects of the Draft Drug Offences Guideline on Sentencing Practice Analysis and Research Bulletins (Sentencing Council, 2012). Jacobson, Kirby and Hough Public Attitudes to the Sentencing of Drug Offences (Sentencing Council, 2011). Drugs Offences Analysis and Research Bulletins (Sentencing Council, 2011). Drug “Mules”: Twelve Case Studies Analysis and Research Bulletins (Sentencing Council, 2011). Burke “Rabbitte Revisited: The First <strong>Report</strong> of the Ministerial Task Force on Measures to Reduce Demand for Drugs - Ten Years On” (2007) 55 Administration 125 at 128. First <strong>Report</strong> of the Ministerial Task Force on Measures to Reduce Demand for Drugs 1996 at 12. Section 15 of the Misuse of Drugs Act 1977. Section 27(a) of the Misuse of Drugs Act 1977 provided that an offender, on summary conviction, would be liable to a fine of £250 and/or a maximum term of 12 months and section 27(b) provided that an offender, on indictment, would be liable to a maximum fine of £3,000 and/or a maximum term of 14 years. Select Committee on Legislation and Security Debates, Criminal Justice (Drug Trafficking) Bill 1996, Committee Stage, 18 June 1996, Mr John O’Donoghue TD. Section 6 of the Misuse of Drugs Act 1984 inserted a new section 27 into the Misuse of Drugs Act 1977. Section 27(3)(a) provided that an offender, on summary conviction, would be liable to a maximum fine of £1,000 and/or a maximum term of 12 months and section 27(3)(b) provided that an offender, on indictment, would be liable to a fine of such amount as the court considers appropriate or a maximum term of life imprisonment or a fine and a lesser period of imprisonment. Dáil Debates, Adjournment Debate - Importation of Illegal Drugs, 9 November 1995, Vol 458, No 1; Cusack and Mooney “Pounds 150m Cannabis Haul may have been bound for UK” Irish Times 9 November 1995; Cleary “Drug Force’s Major Haul probably aimed at UK” Irish Times 11 November 1995; Maher “Gardaí claim Media Leaks thwarted Attempts to Capture Drugs Barons” Irish Times 9 December 1995; and Editorial “Divisions in Drugs Response” Irish Times 11 December 1995. Burke “Rabbitte Revisited: The First <strong>Report</strong> of the Ministerial Task Force on Measures to Reduce Demand for Drugs - Ten Years On” (2007) 55 Administration 125 at 129. 77
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REPORT MANDATORY SENTENCES (LRC 108
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MEMBERSHIP The Law Reform Commissio
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ADMINISTRATION STAFF Head of Admini
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ACKNOWLEDGEMENTS The Commission wou
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TABLE OF CONTENTS TABLE OF LEGISLAT
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CHAPTER 5 (1) Presumptive Minimum S
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Pg N o . Criminal Code Act 1899 (Ql
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Pg N o . Misuse of Drugs Act 1971 c
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TABLE OF CASES Pg N o . Attorney Ge
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Pg N o . The People (DPP) v Barry T
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Pg N o . The People (DPP) v Kelly C
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INTRODUCTION A Background: Request
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sentences for offences committed wh
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1 CHAPTER 1 CONCEPTUAL FRAMEWORK FO
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from loss of liberty is clearly evi
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3. Criminal conduct will, in genera
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1.19 In the context of preventing f
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and vocational programmes. 39 Suppo
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standards, recognising that these m
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he lost his post, pension and pay-r
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(i) Identifying the range of applic
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1.58 In general, however, the court
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Thus, depending on the presence of
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Page 51 and 52: of the person who must pay it. In t
Page 53 and 54: (9) Whether the offence was committ
Page 55 and 56: e put through the additional suffer
Page 57 and 58: (1) The Problem of a Lack of Struct
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Page 65: since 1996; and (iii) information i
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Page 72 and 73: 2.16 It may be recalled that the ma
Page 74 and 75: y law and applicable in all cases w
Page 76 and 77: ody under Article 5(4). As the Secr
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Page 80 and 81: 2.45 In Attorney General for Northe
Page 82 and 83: five years. This was made permanent
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Page 88 and 89: an application for release under Ar
Page 90 and 91: 2.87 The Supreme Court upheld the d
Page 92 and 93: independent judicial body which wou
Page 94 and 95: whether the life prisoner poses a c
Page 96 and 97: offences became extremely unpopular
Page 98 and 99: who rarely had large quantities of
Page 102 and 103: and suppliers. 300 It was proposed
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Page 108 and 109: (b) England and Wales 2.154 In 2002
Page 110 and 111: filtered into the public domain. Th
Page 112 and 113: now applied to a range of drug and
Page 114 and 115: D Historical Evolution of Mandatory
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Page 122 and 123: 2.208 Section 24 of the 2007 Bill p
Page 124 and 125: proportionality and judicial discre
Page 126 and 127: 2.220 The Commission notes that an
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Page 132 and 133: e released. These recommendations w
Page 134 and 135: considers that the seriousness of t
Page 136 and 137: then adjusted to reflect the aggrav
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Page 140 and 141: (8) Summary 3.43 From this survey,
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4 CHAPTER 4 PRESUMPTIVE MINIMUM SEN
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(b) Importation 4.08 The first elem
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creates a risk of arbitrary and unj
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This permits the court to presume,
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should apply. Thus, it has been not
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injury. 66 An admission voluntarily
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4.44 Section 27(3D)(c)(i) provides
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(4) Drug Mules 4.52 The Commission
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used, and (b) a vehicle the means o
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(i) Have 4.74 The meaning of the te
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Misuse of Drugs Act 1977, material
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endanger life or cause serious dama
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“appropriate custodial term”, w
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offensive weapon or an article with
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4.117 Minimum sentences are also pr
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identity theft; 257 (v) certain gan
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examinations; 282 (xv) stalking in
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in Schedule I or Schedule II to the
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possession of a weapon obtained by
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of age. 355 Second, the following o
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ecent years, it would appear that t
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custodial sentence in circumstances
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to commit an indictable offence. 41
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4.183 Section 297 of the Criminal C
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offences. aims. It is arguable, how
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analysis suggested, among other thi
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4.210 Third, the Commission observe
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4.224 In Chapter 1, the Commission
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eneficial” response to other form
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while under the age of 18 years, bu
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C Mandatory Sentence for a Second o
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institution. For the purposes of th
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5.37 Subject to certain conditions,
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operates retrospectively in so far
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the perpetrator has a previous conv
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(iv) Federal Government 5.58 At fed
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(f) Australia 5.65 Certain Australi
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coerced the offender to commit the
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5.79 Division 2A of the Criminal La
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would be manifestly unjust. If the
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deterrent effect of mandatory sente
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treat dissimilar cases differently.
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and have therefore been discussed,
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6 CHAPTER 6 SUMMARY OF RECOMMENDATI
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