Report on Mandatory Sentences - Law Reform Commission

supervision should be liable to one year’s imprisonment when it was proved summarily before
magistrates that they had been acting suspiciously or when they were unable to prove that they had been
earning their livelihood by honest means. 434 This soon became unworkable. 435
2.183 The Prevention of Crimes Act 1871 was thus enacted. 436 This gave the courts discretion to
decide whether to make a habitual offender subject to supervision or not. It provided that a twiceconvicted
offender would be liable, at any time within 7 years of release from prison, to one year’s
imprisonment if proved to be earning his or her livelihood by dishonest means or acting in certain
suspicious circumstances. He or she would not, however, be subject to supervision. The 1871 Act also
provided that a twice-convicted offender might be placed under police supervision for 7 years or for any
shorter period subject to the same conditions of good behaviour. 437
2.184 In 1895, the Gladstone Committee argued in favour of a special sentencing provision to deal with
persistent thieves and robbers, who would otherwise serve a succession of short sentences only to be
released into the community to re-offend. 438 The Committee’s proposals led to the enactment of the
Prevention of Crime Act 1908. 439 Section 10 of the Prevention of Crime Act 1908 empowered the court to
impose on an offender with three previous felony convictions, a sentence of preventive detention of not
less than five or more than 10 years in addition to the normal sentence for the crime. The practical focus
of the 1908 Act changed when the then Home Secretary issued a circular stating that preventive
detention should not be imposed for merely repetitive offending but for repetitive offending that is a
serious danger to society. 440
2.185 In 1932, the Dove-Wilson Committee proposed a new type of preventive detention for
professional criminals. 441 This led to the enactment of the Criminal Justice Act 1948. Section 21 of the
Criminal Justice Act 1948 prescribed for persistent offenders a sentence of not less than five or more than
14 years instead of, rather than in addition to, the normal sentence. Over time, however, the courts found
that preventive detention was being imposed for relatively minor offences. In 1962, the Lord Chief Justice
issued a Practice Direction to restrict the use of preventive detention. 442 Following a critical report from
the Advisory Council on the Treatment of Offenders in 1963, and a number of other reports which
highlighted the minor nature of many of the offences which had attracted a sentence of preventive
detention, the sentence fell into disuse.
2.186 In 1965, a White Paper 443 proposed the introduction of an extended sentence to deal with
persistent offenders who constituted a menace to society. 444 This led to the enactment of the Criminal
Justice Act 1967. Section 37 of the Criminal Justice Act 1967 empowered the courts to extend a
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Radzinowicz and Hood “Incapacitating the Habitual Offender: The English Experience” (1979-1980) 78 Mich L
Rev 1305 at 1341.
Ibid at 1342.
Ibid at 1343.
Ibid at 1344.
Ashworth Sentencing and Criminal Justice (Butterworths, 3 rd ed, 2000) at 160; and Radzinowicz and Hood
“Incapacitating the Habitual Offender: The English Experience” (1979-1980) 78 Mich L Rev 1305 at 1352ff.
Ashworth Sentencing and Criminal Justice (Butterworths, 3 rd ed, 2000) at 160; and Radzinowicz and Hood
“Incapacitating the Habitual Offender: The English Experience” (1979-1980) 78 Mich L Rev 1305 at 1361ff.
Ashworth Sentencing and Criminal Justice (Butterworths, 3 rd ed, 2000) at 161.
Ibid; and Radzinowicz and Hood “Incapacitating the Habitual Offender: The English Experience” (1979-1980)
78 Mich L Rev 1305 at 1378ff.
Practice Direction (Corrective training: Preventative Detention) [1962] 1 All ER 671.
White Paper on the Adult Offender (Home Office, 1965).
Ashworth Sentencing and Criminal Justice (Butterworths, 3 rd ed, 2000) at 161; and Radzinowicz and Hood
“Incapacitating the Habitual Offender: The English Experience” (1979-1980) 78 Mich L Rev 1305 at 1382ff.
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