Report on Mandatory Sentences - Law Reform Commission

while under the age of 18 years, but who attains this age by the date of conviction, may still be subject to
section 25.
(ii)
Prior Scheduled Offence
5.06 Section 25(1)(a) states that the offender must have been convicted on indictment of an offence
listed in Schedule 2 to the 2007 Act. Section 25(4) provides that the prior offence may be one committed
before or after the commencement of section 25. Thus, it appears that the provision may in certain
circumstances apply retrospectively. 4
5.07 The offences included in Schedule 2 may be described as serious offences and are particularly
likely to be committed by those involved in gangland activities. 5 This is unsurprising in the sense that the
2007 Act (as discussed at paragraphs 2.209 and 2.210) was intended to respond to the particular
problems posed by gangland crime. Nonetheless, it is not a requirement of this regime that the
scheduled offences be committed in relation to such activities; rather, the presumptive sentence may
apply regardless of whether there is any such connection. The Commission considers that this is in order
as the scheduled offences are, of themselves, serious enough to merit severe penalties.
(iii)
Five Year Sentence of Imprisonment
5.08 Section 25(1)(b) states that the offender must have been sentenced to imprisonment for at least
five years for the prior offence. This provision was intended to distinguish between more serious and less
serious incidents of the crimes listed in Schedule 2. In this respect, the Commission notes that it is also
the case that “serious” 6 and “arrestable” 7 offences are defined by reference to a five-year term of
imprisonment. The 2007 Act does stipulate, however, that the presumptive sentencing regime will not
apply where the sentence for the prior offence has been wholly 8 or partially 9 suspended, or where the
conviction has been quashed on appeal or otherwise. 10
(iv)
Subsequent Scheduled Offence
5.09 Section 25(1)(c) provides that the offender must be convicted on indictment of a subsequent
offence listed in Schedule 2 to the 2007 Act. It is not a requirement of the sentencing regime that this
offence be connected with gangland activities or to the prior scheduled offence. Section 25(4) states,
however, that the subsequent offence must have been committed after the commencement of section 25.
4
5
6
7
8
9
10
McIntyre “Criminal Justice Act 2007 (Annotated)” (2007) ICLSA.
The offences listed in Schedule 2 to the Criminal Justice Act 2007 are: (i) murder; (ii) causing serious harm;
(iii) threats to kill or cause serious harm; (iv) false imprisonment; (v) causing explosion likely to endanger life or
damage property; (vi) possession, etc., of explosive substances; (vii) making or possessing explosives in
suspicious circumstances; (viii) possession of firearm with intent to endanger life; (ix) possession of firearms
while taking vehicle without authority; (x) use of firearms to assist or aid escape; (xi) possession of firearm or
ammunition in suspicious circumstances; (xii) carrying firearm with criminal intent; (xiii) shortening barrel of
shotgun or rifle; (xiv) aggravated burglary; (xv) drug trafficking offence within the meaning of section 3(1) of
the Criminal Justice Act 1994; (xvi) offence of conspiracy; (xvii) organised crime; (xviii) commission of offence
for criminal organisation; (xix) blackmail; (xx) extortion; and (xxi) demanding money with menaces.
Section 1 of the Bail Act 1997 defines a “serious offence” as an “offence specified in the Schedule for which a
person of full capacity and not previously convicted may be punished by a term of imprisonment for a term of 5
years or by a more serious penalty.”
Section 2 of the Criminal Law Act 1997 defines an “arrestable offence” as “an offence for which a person of full
capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment
for a term of five years or by a more severe penalty... .”
Section 25(5)(a) of the Criminal Justice Act 2007.
Section 25(5)(b) of the Criminal Justice Act 2007.
Section 25(6) of the Criminal Justice Act 2007.
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