Sentencing dangerous offenders
With effect from December 3, 2012 (Legal Aid, Sentencing and Punishment of
Offenders Act 2012 (Commencement No. 4 and Saving Provisions) Order 2012 (S.I.
2012 No. 2906)), the provisions of the Criminal Justice Act 2003 relating to the
sentencing of dangerous offenders are amended by the Legal Aid, Sentencing and
Punishment of Offenders Act 2012 (“LASPO”). On several occasions recently in the
Crown Court it has been apparent that, six months on, the effect of the amendments
is not as well known as might be expected. This article is an attempt to set out shortly
and clearly the current position.
The main effects of LASPO are (i) the abolition of imprisonment and detention for public
protection for offenders convicted after December 3, 2012, (ii) the introduction of a new life
sentence for offenders over 18 convicted of a “second listed offence”, and (iii) the
introduction of new provisions relating to extended sentences.
Life sentences for offenders
convicted of a second listed offence
Section 224A (life sentence for second listed offence) of the CJA 2003 was inserted by
LASPO. The criteria for the imposition of a life sentence under the section are, (i) the
offender, aged 18 or over, is convicted of an offence listed in Part 1 of Schedule 15B, (ii) the
offence was committed after December 3, 2012, and (iii) the sentence condition and the
previous offence condition are met.
The sentence condition is that, but for these provisions, the court would impose a sentence
of 10 years or more for the offence (s.224A(3)), in compliance with section 153(2). The
reference to section 153(2) makes it clear that in deciding whether a sentence of 10 years or
more would be appropriate the court may take account of other associated offences. The
previous offence condition is that at the time the offence was committed the offender had
been convicted of an offence listed in Schedule 15B (note not just Part 1 of the Schedule)
and a “relevant” life sentence or “relevant” sentence of imprisonment or detention was
imposed on the offender for the previous offence (s.224A(4)). A life sentence, which includes
a sentence of IPP or DPP, is relevant if the offender was not eligible for release during the
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first five years of the sentence (or would not have been so eligible but for time served on
remand) (s.224A(5)). An extended sentence is relevant if the custodial term exceeded 10
years, again excluding time served on remand (s.224A(6), (7), (9)). Any other sentence of
imprisonment or detention for a determinate period is relevant if it was for a period of 10
years or more (s.224A(8)).
Where the qualifying conditions are met, the court must impose a sentence of imprisonment
for life unless it is of the opinion that there are particular circumstances which relate to the
offence, the previous offence or to the offender which would make it unjust to do so in all the
circumstances (s.224A(2)).
Schedule 15B is inserted by LASPO (which repeals Schedule 15A). Part 1 lists violent and
sexual offences which are currently contrary to statute or the common law. Murder does not
appear because it carries a mandatory life sentence in any event. Abolished offences, for
example offences contrary to the Sexual Offences Act 1956, are not included because the
LASPO commencement provisions preclude their attracting a life sentence under s.224A.
Part 2 lists murder and any violent or sexual offence that was abolished before the coming
into force of Schedule 15B which would have constituted an offence specified in Part 1 if
committed on the relevant day, defined as the day on which the offender was convicted of
the current offence for which he is being sentenced under these provisions.
Extended sentences for certain
violent or sexual offences
Section 226A of the CJA 2003 was inserted by LASPO. It provides that an extended
sentence may be imposed where (i) an offender aged 18 or over, is convicted of a violent or
sexual offence committed before or after December 3, 2012, which is specified in the original
Schedule 15, (ii) the court considers that there is a significant risk to members of the public
of serious harm occasioned by the commission of further specified offences, ie. the offender
is “dangerous” in CJA terms, (iii) the offender does not qualify for a life sentence, and (iv)
condition A or B is met. Save for (iv), the criteria are similar to those which formerly applied.
Condition A is that, at the time the current offence for which he is being sentenced was
committed, the offender had been convicted of an offence listed in Schedule 15B. Condition
B is that, if the court were to impose an extended sentence of imprisonment, the appropriate
custodial term would be at least four years. That term is to be calculated in compliance with
section 153(2) and is therefore to be commensurate with the seriousness of the offence, or
the combination of that offence and one or more offences associated with it (s.226A(6)). The
extension period must be of such length as the court considers necessary for the purpose of
protecting the public from serious harm occasioned by the commission of further specified
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offences (s.226A(7)). It must not exceed five years in the case of a specified violent offence
or eight years in the case of a specified sexual offence (s.226(8)). The total term of an
extended sentence must not exceed the maximum term for the offence at the time it was
committed (s.226A(9)).
Section 226B (extended sentences: persons under 18) was also inserted by LASPO. Where
the offender is under 18, an extended sentence of detention may only be imposed on
conviction of a specified offence committed before or after December 3, 2012, where the
offender is assessed as dangerous in CJA terms, where the court is not required to impose a
sentence of detention for life and where the appropriate custodial term would be at least four
years. A previous conviction for an offence specified in Schedule 15B does not, in the case
of an offender aged under 18 have the effect of dis-applying the requirement of a minimum
four-year term.
Release on licence of prisoners serving extended
sentences under ss. 226A and 226B
The apparent lack of awareness of some practitioners as to the principles governing the
imposition of extended sentences extends to the release provisions, and perhaps to a
greater extent. They are of importance and a failure to advise a client in a case where the
dangerousness provisions are a live issue could have very serious consequences. In reality
the position is fairly straightforward and contained in section 246A of the CJA 2003 (inserted
by section 125 of LASPO). The section requires that a prisoner serving an extended
sentence must be released after serving two-thirds of the custodial term unless that term is
10 years or more or the sentence was imposed for an offence listed in Parts 1 to 3 of
Schedule 15B. In such cases the prisoner’s case must be referred to the Parole Board who
will only direct his release if satisfied that it is no longer necessary for the protection of the
public that the prisoner should be confined. These release provisions apply whether the
offence was committed before or after December 3, 2012.
Will Carter
Chambers of Michael Hubbard Q.C. and Karim Khail Q.C.
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