Report on Mandatory Sentences - Law Reform Commission

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she be released. 192 This direction may only be given where the Commissioners are satisfied that it is no longer necessary for the protection of the public from serious harm that the offender should be confined. 193 Remission may not be granted under the prison rules to an offender sentenced under Article 13. 194 4.99 The fact that Article 13 bears a remarkable resemblance to section 225 of the Criminal Justice Act 2003 (which, as discussed at paragraph 2.196, was repealed in 2012) may be explained by reference to the findings of the 2000 Review of the Sentencing Framework in Northern Ireland. The Review referred to the fact that section 225 of the Criminal Justice Act 2003 had introduced extended and indeterminate public protection sentences for offenders convicted of specified sexual or violent offences who were assessed as dangerous by the sentencing court. 195 It observed, however, that the 2003 Act did not apply to Northern Ireland and that there remained as a result a gap in Northern Irish law in respect of such offenders: “The Review identified a gap in provision in Northern Ireland for the management of dangerous, violent and sexual offenders who continue to pose a risk to the public at their automatic release date. Under existing provision it is only where offenders have been given a mandatory or discretionary life sentence that assessment of the risk they pose to the public enables their continued detention in custody. Consultation respondents considered this an important public protection issue which needed to be addressed. Therefore we now introduce indeterminate and extended custodial sentences in Northern Ireland.” 196 4.100 Although Article 13 was inspired by section 225 of the Criminal Justice Act 2003, it would appear that the difficulties associated with the IPP sentence in England and Wales have not materialised in the context of the Northern Irish legislation. In July 2012, Criminal Justice Inspection Northern Ireland published its <strong>Report</strong> on The Management of Life and Indeterminate Sentence Prisoners in Northern Ireland. This <strong>Report</strong> found that “the legislative basis for managing indeterminate sentenced prisoners in Northern Ireland was good, and had been informed by serious pitfalls that arose in England and Wales.” 197 The Commission observes that one apparent difference between the two sentencing models is that the regime which operates in Northern Ireland requires the court to first consider whether the imposition of an “extended custodial sentence” (discussed below) would be sufficient to protect the public from serious harm. Where this is the case, an indeterminate custodial sentence may not be imposed. 4.101 Article 14 of the Criminal Justice (Northern Ireland) Order 2008 requires the imposition of an “extended custodial sentence” for a “specified violent offence” 198 or “specified sexual offence”. 199 This obligation applies where the sentencing court is of the opinion that: (i) there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences, and (ii) in the event that the specified offence is a “serious offence”, the court is not required by Article 13 to impose a life sentence or an indeterminate custodial sentence. 200 4.102 Under Article 14, an “extended custodial sentence” is a sentence of imprisonment (or detention, in the case of an offender under the age of 21 years) which is equal to the aggregate of: (a) the 192 193 194 195 196 197 198 199 200 Article 18(3) of the Criminal Justice (Northern Ireland) Order 2008. Article 18(4) of the Criminal Justice (Northern Ireland) Order 2008. Article 13(7) of the Criminal Justice (Northern Ireland) Order 2008. Proposed Draft Criminal Justice (Northern Ireland) Order 2007 - Equality Screening Forms (Northern Ireland Office, 2007) at 7. Ibid at 8. The Management of Life and Indeterminate Sentence Prisoners in Northern Ireland (Criminal Justice Inspection Northern Ireland, 2012) at vi. A “specified violent offence” is an offence listed in Part 1 of Schedule 2 to the Order. A “specified sexual offence” is an offence listed in Part 2 of Schedule 2 to the Order. Article 14(1) of the Criminal Justice (Northern Ireland) Order 2008. 150
“appropriate custodial term”, which means a term of at least 12 months, not exceeding the statutory maximum, which the court considers appropriate, and (b) a further period for which the offender is to be subject to a licence and which is of such length as the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the commission by the offender of further specified offences. 201 The extension period imposed must not exceed five years in the case of a “specified violent offence” or 8 years in the case of a “specified sexual offence”. 202 As a whole, the term of an extended custodial sentence may not exceed the statutory maximum sentence for the relevant offence. 203 4.103 An offender sentenced under Article 14 will become eligible for release only after he or she has served half of the custodial sentence imposed by the court. 204 An offender who has served the entirety of the “appropriate custodial term” must be released unless he or she has previously been recalled while on licence. Remission may not be granted under the prison rules to an offender sentenced under Article 14. 205 (b) England and Wales 4.104 It has been observed that mandatory sentencing in the United Kingdom reflects the attention which was paid to recidivist offenders in the 1990s, and which resulted in the enactment of “three-strikes” statutes in the United States. 206 In England and Wales, in addition to the mandatory life sentence for murder, there are presumptive minimum sentences for certain repeat drug offences; repeat serious violent and/or sexual offences; repeat domestic burglaries; firearms offences; and aggravated knife offences. Those sentencing regimes which apply only in respect of repeat offenders are considered in Chapter 5. In this section, the Commission focuses on those provisions which create a “one-strike” rule so that a presumptive or mandatory sentence applies where an offender is convicted for the first time of a specified offence. (i) Firearms Offences 4.105 Section 51A 207 of the Firearms Act 1968, as amended, 208 prescribes a presumptive minimum sentence of five years’ imprisonment for an offender, aged at least 21 years, 209 who is convicted of a specified firearms offence. These offences are: (i) possession, purchase, acquisition, manufacture, sale or transfer of a firearm; 210 (ii) using another person to mind a dangerous prohibited weapon; 211 (iii) possession of a firearm with intent to injure; 212 (iv) possession of a firearm with intent to cause fear of 201 202 203 204 205 206 207 208 209 210 211 212 Article 14(4) of the Criminal Justice (Northern Ireland) Order 2008. Article 14(8) of the Criminal Justice (Northern Ireland) Order 2008. Article 14(9) of the Criminal Justice (Northern Ireland) Order 2008. Article 18(2) of the Criminal Justice (Northern Ireland) Order 2008. Article 14(12) of the Criminal Justice (Northern Ireland) Order 2008. Mandatory Sentences of Imprisonment in Common Law Jurisdictions (Department of Justice, Canada) at 14. Inserted by section 287 of the Criminal Justice Act 2003. Section 30 of the Violent Crime Reduction Act 2006. Section 51A(4)(a) of the Firearms Act 1968, as modified by Article 2 of The Firearms (Sentencing) (Transitory Provisions) Order 2007 (SI 2007/1324). An offender aged 18, 19 or 20 years will receive a minimum sentence of five years’ detention in a young offender institution (section 51A(4)(a), as modified by Article 2 of The Firearms (Sentencing) (Transitory Provisions) Order 2007 (SI 2007/1324)). An offender under the age of 18 years will receive a minimum sentence of three years’ detention in a young offender institution (section 51A(5)(ii) of the Firearms Act 1968). Section 5(1) and section 5(1A) of the Firearms Act 1968. Section 29 of the Violent Crime Reduction Act 2006. Section 16 of the Firearms Act 1968. 151
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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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which captured adverse public atten
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compromise which failed to achieve
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2.16 It may be recalled that the ma
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y law and applicable in all cases w
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ody under Article 5(4). As the Secr
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irrespective of whether the sentenc
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2.45 In Attorney General for Northe
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five years. This was made permanent
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penalty or suspending it for an exp
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protection from those with murderou
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an application for release under Ar
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2.87 The Supreme Court upheld the d
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independent judicial body which wou
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whether the life prisoner poses a c
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offences became extremely unpopular
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who rarely had large quantities of
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2.124 The Crime (Sentences) Act 199
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and suppliers. 300 It was proposed
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Bill which would, among other matte
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(2) Mandatory Sentences for Firearm
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(b) England and Wales 2.154 In 2002
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filtered into the public domain. Th
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now applied to a range of drug and
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D Historical Evolution of Mandatory
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supervision should be liable to one
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“These are unduly weak provisions
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offender is being sentenced for any
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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
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Page 167 and 168: used, and (b) a vehicle the means o
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Page 173: endanger life or cause serious dama
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Page 179 and 180: 4.117 Minimum sentences are also pr
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Page 183 and 184: examinations; 282 (xv) stalking in
Page 185 and 186: in Schedule I or Schedule II to the
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Page 189 and 190: of age. 355 Second, the following o
Page 191 and 192: ecent years, it would appear that t
Page 193 and 194: custodial sentence in circumstances
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Page 197 and 198: 4.183 Section 297 of the Criminal C
Page 199 and 200: offences. aims. It is arguable, how
Page 201 and 202: analysis suggested, among other thi
Page 203 and 204: 4.210 Third, the Commission observe
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Page 207: eneficial” response to other form
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Page 212 and 213: C Mandatory Sentence for a Second o
Page 214 and 215: institution. For the purposes of th
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Page 220 and 221: the perpetrator has a previous conv
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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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