Report on Mandatory Sentences - Law Reform Commission

considering whether this condition is met, the court must contemplate the sentence that it would have
imposed but for section 224A, disregarding any extension period that it would have applied under section
226A. 37 Thomas notes that because the sentencing court must be willing to impose a sentence of at least
10 years having taken account of all relevant considerations (including the offender’s plea), the ‘sentence
condition’ sets a “very high threshold” 38 for the imposition of a life sentence.
5.35 The “previous offence condition” stipulates that the offender must, at the time when the second
offence was committed, have a prior conviction for an offence listed in any part of Schedule 15B 39 and
have received a “relevant life sentence” or a “relevant sentence of imprisonment” for that prior offence. 40
Section 224A(5) clarifies that a “relevant life sentence” is one where the offender was not eligible for
release during the first five years (not taking into account any period spent on remand or bail). Any
extended sentence 41 or other determinate sentence of imprisonment or detention 42 will be considered
relevant where the custodial term was at least 10 years. Section 224A(9) provides that any reduction in
sentence for the purpose of taking account of time spent on remand, either in custody or on bail, is to be
disregarded when considering whether the “previous offence condition” has been met. Thomas suggests
that very few offenders are likely to satisfy both the “sentence condition” and the “previous offence
condition” and that, as a result, “the imposition of a new-style automatic life sentence will be a rare event
indeed.” 43
5.36 The presumptive life sentence prescribed by section 224A has been described as a “most
peculiar provision”. 44 Although referred to as a ‘mandatory’ provision by the Government, 45 it is clear that
a life sentence need only be imposed under this regime where it would be just in all the circumstances of
the case. As the courts will always seek to impose a sentence that is just in the circumstances, the
purpose of this reform has been called into question. 46
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Subject to certain conditions, section 226A permits the imposition of extended sentences upon certain violent
or sexual offenders who are aged at least 18 years.
Thomas “The Legal Aid, Sentencing and Punishment of Offenders Act 2012: The Sentencing Provisions”
(2012) 8 Criminal Law Review 572 at 573.
In addition to the 44 offences listed in Part 1, Schedule 15B lists under Part 2, the crime of murder and any
offence that was abolished (with or without savings) prior to the Schedule coming into force and which would,
if committed on the relevant day, have constituted an offence specified in Part 1 of the Schedule. For the
purposes of section 224A(4), the ‘relevant day’ is that on which the offender was convicted of the offence
referred to in section 224A(1)(a). Part 3 of the Schedule further lists an array of offences under service law,
while Part 4 includes any offence for which the person was convicted in Scotland, Northern Ireland or a
member state other than the United Kingdom and which, if committed in England and Wales at the time of
conviction, would have constituted an offence specified in Part 1 or Part 2 of the Schedule.
Section 224A(4) of the Criminal Justice Act 2003.
Section 224A(6) of the Criminal Justice Act 2003.
Section 224A(8) of the Criminal Justice Act 2003.
Thomas “The Legal Aid, Sentencing and Punishment of Offenders Act 2012: The Sentencing Provisions”
(2012) 8 Criminal Law Review 572 at 573. See also: Picton “The Effect of the Changes in Sentencing of
Dangerous Offenders Brought About by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and
the Mystery of Schedule 15B” (2013) 5 Criminal Law Review 406 at 408.
Anthony Lloyd “Two strikes and then a mandatory life sentence No” The Guardian 19 March 2012.
See: Hansard, House of Commons, Legal Aid, Sentencing and Punishment of Offenders Bill, 1 November
2011, Column 788.
Anthony Lloyd “Two strikes and then a mandatory life sentence No” The Guardian 19 March 2012.
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