2nd Strike Life Sentences and New
Extended Sentences
Don't Throw Away Old Text Books: Get Out The
Ibuprofen
As has been widely publicised, among the many amendments that came into force on the
3rd December 2012 is the 2nd Strike means Imprisonment for Life provision. As ever the
detail is rather different to the Headline. The various legislative hurdles that have to be gone
through before the two convictions lead to a Life Sentence are undoubtedly complicated 1;
the Court of Appeal will enjoy untangling these. Looking at these one wonders how many
offenders will be sentenced to a Life Sentence under these provisions? For it is not as
simple as commit a second strike serious offence having committed a first serious offence.
If Headline Writers pander to what the public want to read (a cynic might also say that
politicians act rather similarly), it will be practitioners and the Courts who have to try and
disentangle what is left. For whilst the Headline relates to 2nd Strikes (section 224A) in fact
the enacted amendments also affect Extended Sentences (section 226A) and Recall
(section 246A).
Quite possibly a wholly unnecessary headache will arise due to the drafting of the new
Schedule 15B of the Criminal Justice Act 2003 (as inserted by section 122 and Schedule 18
of the Legal Aid, Sentencing and Punishment of Offenders Act 2012).
This new Schedule 15B creates what might be described as the list of triggering offences.
Such lists are not new.
Section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 enacted a previous
1
See section 224A(1) of the Criminal Justice Act 2003.
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version of the 2nd strike Automatic Life Sentence. Then, the list of triggering offences
remained somewhat restrained 2; later the Criminal Justice Act 2003 Schedule 15 created the
list of Specified Offences for the purposes of Chapter 5 of Part 12 (Dangerous Offenders): of
course that list was far longer including some, as many advocates will recall, everyday
offences e.g. Affray.
Whether because of the law of unintended consequences, or was it just legislative madness,
or lack of any foresight, Judges found themselves passing 'Dangerous Offender' sentences
in wholly unrealistic cases. The Criminal Justice and Immigration Act 2008 3 sought to
confine the availability of such sentences. The 2008 Act used two measures (i) a notional
minimum custodial term 4 or (ii) the commission of a previous offence specified in a newly
inserted Schedule 15A. Now for the for the purposes of an Extended Sentence under the
new section 226A of the Criminal Justice Act 2003 these same two measures 5 are repeated
Schedule 15B now being substituted for 15A.
Whilst the original Schedule 15 was lengthy (153 separate offences plus attempts etc),
Schedule 15A was considerably shorter (23 offences for England & Wales).
What is notable in both Schedule 15 and Schedule 15A is that the lists include repealed
offences. The most obvious repealed offences are those contrary to the Sexual Offences Act
1956. It did not matter for the purposes of either Schedule that the 1956 Act had been
repealed: Listed Offences contrary to the 1956 Act were nevertheless triggering offences.
So what of the new Schedule 15B?
Ah, now there the headache begins.
Schedule 15B contains 5 Parts. I confine myself to Parts 1 and 2 (Part 3 relates to Offences
Under Service Law; Part 4 Offences in Scotland, Northern Ireland or a Member State other
than the UK; Part 5 is Interpretation) though the same point will arise in relation to Parts 3
and 4 6.
2
See section 109(5) of the Powers of Criminal Courts (Sentencing) Act 2000.
3 Section 13(1) and Schedule 5.
4 Sections 225(3B) and 227(2B) of the Criminal Justice Act 2003
5 i.e. notional minimum term or commission of an offence contained within a particular list.
6
Part 4 could be/will be particularly interesting in relation to Offences in Member States.
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Part 1 lists the Offences under the Law of England and Wales listed for the purposes of
Sections 224A (1), 224A (4), 226A and 246A. There are 44 offences listed, but they are all
offences that are currently in force. This is relatively straightforward: for the purposes of the
new provisions the second offence has to have been committed after the commencement of
the section, thus after 3rd December 2012. No point therefore the Legislators presumably
thought in listing repealed offences.
Part 2 is headed "Further Offences under the Law of England and Wales for the purposes of
Sections 224A (4), 226A and 246A. This continues the list
The following offences to the extent that they are offences under the law of England and
Wales 45. Murder
46 (1) Any offence that (a) was abolished (with our without savings) before the coming into force of this Schedule,
and
(b) would, if committed on the relevant day, have constituted an offence specified in Part 1 of
this Schedule.
(2) "Relevant day", in relation to an offend, means(a) for the purposes of this paragraph as it applies for the purposes of section 246A(2), the
day on which the offender was convicted of that offence, and
(b) for the purposes of this paragraph as it applies for the purposes of sections 224A(4) and
226A(2), the day on which the offender was convicted of the offence referred to in section
224A(1)(a) or 226A(1)(a) (as appropriate).
It is necessary to focus for a moment: Part 2 is Part 2 of Schedule 15B. Thus an offence
falling within Part 2 may be the first 'strike' offence 7, there being no requirement that the first
'strike' offence is committed after the 3rd December 2012. In exactly the same way an
7
And most certainly will be for the foreseeable future.
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offence in Part 2 may be the earlier conviction for the purposes of section 226A (Extended
Sentences) 8.
So herein lies the headache: where the Defendant has previous convictions in relation to
offences no longer on the statute book, the Sentencing Court will have to determine for
which, if any, offence under Part 1 the Defendant would have been convicted, if he were
then convicted of offences not then enacted but enacted now. Whereas it was relatively easy
to run down a list of previous offences to determine whether a section 109 PCC(S)A 2000 or
Schedules 15/15A CJA 2003 offence was recorded - now one will have to look at not only
the recorded offence itself, but potentially the circumstances of the offence (even quite
possibly basis of plea) to determine which offence in Part 1 the Defendant would then have
committed if the law as it is now was in force then 9.
As mentioned above these provisions might be 'headlined' as 2nd Strike means Life
Imprisonment, nevertheless Schedule 15B also applies to Extended Sentences. The hurdles
that have to be crossed before passing a 2nd Strike = Life Sentence are high, not so with an
Extended Sentence 10.
A previous conviction for a Schedule 15B offence is one of the two alternate preconditions
for an Extended Sentence (see section 226A(2)). So whilst the Criminal Justice and
Immigration Act 2008 narrowed the availability of Extended Sentences with an amended
section 227 and Schedule 15A, the availability of such a sentence has now been
considerably widened given much the wider list of offences in the new Schedule 15B. So
whereas, for example, the 1956 Sexual Offences of Rape (section 1) and Sexual Intercourse
with a Girl under 13 (section 5) were the two 1956 Act offences listed in Schedule 15A - now
presumably almost all previous sexual offending will fall to be considered, as it will almost
always be possible to pigeonhole such previous offending within one of the listed offences
from the Sexual Offences Act 2003 found in Part 1 of Schedule 15B.
8 And again most certainly will be for the foreseeable future.
9 One can foresee fundamental problems with this and no more clearly in the field of sexual offending.
10 Note that for both 2nd Strike an Extended Sentences the Dangerousness Test must be satisfied though.
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So the point is that the Practitioner will need to, and have to be able to, consider which
offence the Defendant not only did in the past commit, but had the law as it is now been
available then, which offence would have been committed. Headache tablets anyone 11?
Robert Bryan
Chambers of Michael Hubbard Q.C. and Karim Khail Q.C.
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11
And we have not even addressed the question of retrospective amendments to laws.
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