Report on Mandatory Sentences - Law Reform Commission

5.37 Subject to certain conditions, 47 section 226A of the Criminal Justice Act 2003 48 permits the
application of an extended sentence to an adult offender 49 who is convicted of a specified violent
offence 50 or a specified sexual offence. 51 Under this regime, an “extended sentence of imprisonment” is a
sentence the term of which is equal to the aggregate of: (a) the appropriate custodial term that would
(apart from this section) be imposed in compliance with section 153(2) of the Criminal Justice Act 2003,
and (b) a further period (the “extension period”) for which the offender is to be subject to a licence. 52
While this sentencing regime does not prescribe a minimum sentence, section 246A of the Criminal
Justice Act 2003 53 provides that an offender sentenced under this regime will not be eligible for release
on licence until he or she has served at least two-thirds of the custodial term imposed, as opposed to
one-half of the sentence, as had formerly been the case. 54
(c)
Scotland
5.38 In Scotland, certain repeat drug offences attract a presumptive minimum sentence of
imprisonment.
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In order for an extended sentence to be imposed, the following criteria must be fulfilled: (i) the court must
consider that there is a significant risk to members of the public of serious harm occasioned by the
commission by the offender of further specified offences; (ii) the court must not be required by section 224A or
section 225(2) of the Criminal Justice Act 2003 to impose a life sentence for the offence; and (iii) “condition A”
or “condition B” must be met. “Condition A” is that, at the time the offence was committed, the offender must
have been convicted of an offence listed in Schedule 15B to the Act. “Condition B” is that, if the court were to
impose an extended sentence of imprisonment, the term that it would specify as the appropriate custodial term
would be at least four years.
Inserted by section 124 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
Section 226B of the Criminal Justice Act 2003 provides for a comparable extended detention regime which is
applicable to offenders under the age of 18 years, who are convicted of a specified violent or sexual offence.
A “specified violent offence” is defined by section 224 of the Criminal Justice Act 2003 as an offence specified
in Part 1 of Schedule 15 to the Act. Among the offences listed in that Part are: (i) manslaughter; (ii) false
imprisonment; (iii) threats to kill; (v) robbery or assault with intent to rob; and (v) attempted murder or
conspiracy to commit murder. Section 226A(10) and Section 226B(8) of the Criminal Justice Act 2003 clarify
that references to a “specified violent offence” include an offence that was abolished before 4 April 2005, and
which would have constituted such an offence if committed on the day on which the offender was convicted of
the offence.
A “specified sexual offence” is defined by section 224 of the Criminal Justice Act 2003 as an offence specified
in Part 2 of Schedule 15 to the Act. Among the offences listed in that Part are: (i) rape; (ii) intercourse with girl
under 16; (iii) incest; (iv) indecent assault; and (v) keeping a brothel. Section 226A(10) and Section 226B(8)
of the Criminal Justice Act 2003 clarify that references to a “specified sexual offence” include an offence that
was abolished before 4 April 2005, and which would have constituted such an offence if committed on the day
on which the offender was convicted of the offence.
The Act specifies that the extension period must be a period 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. However, in the case of a specified violent offence, the extension
period may not exceed five years, while in the case of a specified sexual offence it may not exceed 8 years.
Furthermore, the term of an extended sentence of imprisonment must not exceed the term that, at the time the
offence was committed, was the maximum term permitted for the offence.
Inserted by section 125 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
Thomas “The Legal Aid, Sentencing and Punishment of Offenders Act 2012: The Sentencing Provisions”
(2012) 8 Criminal Law Review 572 at 576; and 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 409.
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