Report on Mandatory Sentences - Law Reform Commission

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“These are unduly weak provisions to support the severely restrictive sentences that follow. There is no hint of recognition of the well-known fallibility of judgments of dangerousness. There is no requirement on courts to obtain relevant reports on the offender: a requirement to consult a report if there is one is inadequate. Moreover, the presumption applies where there is just one previous conviction of any of more than 150 specified offences, which vary considerably in their seriousness. It is doubtful whether the presumption is compatible with Article 5 of the Convention, insofar as it requires the courts to assume significant risk without investigating the particular facts and reports, and (effectively) places the burden on the defence to negative this.” 455 2.192 In 2008, the Chief Inspector of Prisons and the Chief Inspector of Probation conducted a review of the IPP sentence. 456 They observed that section 225 and section 226 had given rise to a large number of new and resource-intensive prisoners being fed into a prison system that was already under strain. 457 This, they noted, had not only “increased pressure, and reduced manoeuvrability, within the prison system” but had also stretched the Probation Service. 458 The consequence of this was: “...IPP prisoners languishing in local prisons for months and years, unable to access the interventions they would need before the expiry of their often short tariff periods. A belated decision to move them to training prisons, without any additional resources and sometimes to one which did not offer relevant programmes, merely transferred the problem. By December 2007, when there were 3,700 IPP prisoners, it was estimated that 13% were over tariff. As a consequence, the Court of Appeal found that the Secretary of State had acted unlawfully, and that there had been ‘systematic failure to put in place the resources necessary to implement the scheme of rehabilitation necessary to enable the relevant provisions of the 2003 Act to function as intended.” 459 This was by no means a new revelation. Similar comments had been made by the media in the years preceding the publication of the report. 460 2.193 In 2008, section 225 was amended by section 13 of the Criminal Justice and Immigration Act 2008. The amendments provided that the courts would have a power, rather than a duty, to impose an IPP sentence. They further provided that this power may only be exercised where either of two conditions is met, namely, the immediate offence would attract a notional minimum term of at least two years, or the offender had on a previous occasion been convicted of one of the offences listed in the new Schedule 15A to the 2003 Act. 461 Section 14 made similar amendments to section 226. 2.194 In December 2010, the Government published a Green Paper on sentencing titled Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders. 462 This consultation paper acknowledged that there remained a range of problems with the IPP sentencing regime. Among other things, it observed that: (i) the regime had come to be applied on a much wider basis than had originally been anticipated; (ii) the release rate was very low because offenders were required to satisfy the Parole Board that they did not pose an unmanageable risk to the community and, in practice, this negative 455 456 457 458 459 460 461 462 Ashworth and Player “Criminal Justice Act 2003: The Sentencing Provisions” (2005) 68 Mod L Rev 822 at 835. The Indeterminate Sentence for Public Protection - A Thematic Review (HM Chief Inspector of Prisons and HM Chief Inspector of Probation, 2008). Ibid at 3. Ibid. Ibid at 4. See, for instance: “Sentence designed for ‘Public Protection” The Telegraph 20 August 2007. Inserted by Schedule 5 to the Criminal Justice and Immigration Act 2008. Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders (Ministry of Justice, 2010). 94
criterion was difficult to prove; (iii) the ability to predict future serious offending is limited, thus calling into question the entire basis upon which these sentences were imposed; (iv) the regime confused the sentencing framework and may have undermined public confidence in so far as the court, the victim and the public had little means of knowing how long an offender would remain in custody; and (v) the larger the number of prisoners subject to these sentences, the more difficult it had become to facilitate their rehabilitation. 463 2.195 On the basis of these deficiencies, the Green Paper proposed the restriction of IPP sentences to exceptionally serious cases, specifically, those which would otherwise have merited a sentence of at least 10 years. 464 Upon publishing the outcome of the consultation process in June 2011, however, the Government went beyond these initial proposals and signalled its intention to urgently review the IPP regime with a view to replacing it with a determinate sentencing framework. 465 2.196 In December 2012, section 225 and section 226 of the Criminal Justice Act 2003 were repealed by section 123 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. In place of the IPP sentence, the 2012 Act introduced a framework which, according to the former Secretary of State for Justice, Kenneth Clarke, was intended to “replace a regime that did not work as it was intended to with one that gives the public the fullest possible protection from serious, violent and sexual crime.” 466 Broadly speaking, this new regime has three main strands. First, section 122 of the 2012 Act introduced a presumptive life sentence for those described by the then Secretary of State for Justice as “the very serious offenders, the ones who are among the worst of the likely inhabitants of Her Majesty’s prisons.” 467 As outlined in greater detail at paragraph 5.33, this sentencing regime applies in circumstances where an offender has committed on two separate occasions, two prescribed serious sexual or violent offences, each of which was serious enough to merit a determinate sentence of at least 10 years. 2.197 Second, the then Secretary of State for Justice acknowledged that, following the abolition of the IPP sentence, the penalty most relevant to serious offenders would again be the discretionary life sentence. 468 He observed that this indeterminate sentence had long been available under the British justice system and that it was the appropriate penalty where the maximum penalty for an offence is life imprisonment and where the offence is sufficiently serious. 469 2.198 Third, any offender who would previously have received an IPP sentence is eligible to receive an extended determinate sentence where he or she has not received either the presumptive life sentence or the discretionary life sentence. As detailed at paragraph 5.37, this extended sentence, which is “broadly similar” 470 to that formerly provided by section 227 of the Criminal Justice Act 2003 was introduced by section 124 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, and consists of a custodial sentence plus a further extended licence period set by the court. The main change effected by this reform is that an offender must now serve at least two-thirds of the determinate sentence imposed under this regime or, in some particularly serious cases, must apply to the Parole Board for release and may be detained in prison until the end of the determinate sentence. This provision may apply where the 463 464 465 466 467 468 469 470 Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders (Ministry of Justice, 2010) at 55. Ibid at 56. Breaking the Cycle: Government Response (Ministry of Justice, 2011) at 11. Hansard, House of Commons, Legal Aid, Sentencing and Punishment of Offenders Bill: 1 November 2011, Column 785. Hansard, House of Commons, Legal Aid, Sentencing and Punishment of Offenders Bill: 1 November 2011, Column 788. Ibid. Ibid. Thomas “The Legal Aid, Sentencing and Punishment of Offenders Act 2012: The Sentencing Provisions” (2012) 8 Criminal Law Review 572 at 575. 95
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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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matters. She lost interest in study
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of the person who must pay it. In t
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(9) Whether the offence was committ
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e put through the additional suffer
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(1) The Problem of a Lack of Struct
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conviction that restricted employme
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and to hold public seminars on matt
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A mechanism based on measures being
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since 1996; and (iii) information i
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Page 70 and 71: compromise which failed to achieve
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
Page 78 and 79: irrespective of whether the sentenc
Page 80 and 81: 2.45 In Attorney General for Northe
Page 82 and 83: five years. This was made permanent
Page 84 and 85: penalty or suspending it for an exp
Page 86 and 87: protection from those with murderou
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 100 and 101: 2.124 The Crime (Sentences) Act 199
Page 102 and 103: and suppliers. 300 It was proposed
Page 104 and 105: Bill which would, among other matte
Page 106 and 107: (2) Mandatory Sentences for Firearm
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 120 and 121: offender is being sentenced for any
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 130 and 131: the case of a prisoner serving a ma
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
Page 138 and 139: 3.37 In three jurisdictions (the No
Page 140 and 141: (8) Summary 3.43 From this survey,
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Page 144 and 145: equirements of Article 5(1) were sa
Page 146 and 147: cannot reflect these variations in
Page 148 and 149: process. In particular, considerati
Page 151 and 152: 4 CHAPTER 4 PRESUMPTIVE MINIMUM SEN
Page 153 and 154: (b) Importation 4.08 The first elem
Page 155 and 156: creates a risk of arbitrary and unj
Page 157 and 158: This permits the court to presume,
Page 159 and 160: should apply. Thus, it has been not
Page 161 and 162: injury. 66 An admission voluntarily
Page 163 and 164: 4.44 Section 27(3D)(c)(i) provides
Page 165 and 166: (4) Drug Mules 4.52 The Commission
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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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Report on Mandatory Sentences - Law Reform Commission

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