Thursday 27 October 2011

The Legal Aid, Sentencing and Punishment of Offenders Bill - further amendments and a bit of Henry VIII

The passage of the Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) through the Commons is almost complete with the report stage set for 31st October.  It is therefore interesting that on 26th October, the Ministry of Justice announced  further and very significant sentencing proposals which could be added to the Bill.  They will be debated by the Commons next week and, if accepted, will be added to LASPO.   In essence, the new proposals are aimed at replacing Imprisonment for Public Protection (IPP) which was introduced in the Criminal Justice Act 2003 and which has proved to be exceptionally problematic.  It therefore seems particularly unfortunate that, by introducing these proposals at a late stage, the Commons will have minimal time in which to consider them.

Imprisonment for Public Protection:

The statutory law is in the Criminal Justice Act 2003 Part 12 Chapter 5.  The law was amended by the Criminal Justice and Immigration Act 2008 sections 13-20.

The law as originally enacted in 2003 was considered by the Court of Appeal (Criminal Division) in R v Lang [2005] EWCA Crim 2864 and, later, in R v Johnson and others [2006] EWCA Crim 2486.  The law, as amended by the 2008 Act, was considered in C and others [2008] EWCA Crim 2790.  (Other cases of interest include:  Ashes [2007] EWCA Crim 1848; Wilkinson and others [2009] EWCA Crim 1925 and the "causing or allowing the death of a child" case of  Owen [2009] EWCA Crim 2259).

A sentence for IPP is "indeterminate" in length.  Release, after a specified minimum term has been served, is subject to the discretion of the Parole Board.  The difficulties which some prisoners have encountered in this area have been the subject of litigation - for example, see the House of Lords judgment in Secretary of State for Justice v James [2009] UKHL 22 where Lord Hope of Craighead said:

"There is no doubt that the Secretary of State failed deplorably in the public law duty that he must be taken to have accepted when he persuaded Parliament to introduce indeterminate sentences for public protection (“IPPs”) by section 225 of the Criminal Justice Act 2003. He failed to provide the systems and resources that prisoners serving those sentences needed to demonstrate to the Parole Board by the time of the expiry of their tariff periods, or reasonably soon thereafter, that it was no longer necessary for the protection of the public that they should remain in detention."  

His Lordship then noted that the Secretary of State accepted that it was implicit in the statutory scheme of sections 224 and 225 of the Criminal Justice Act 2003 that he would make provision which allowed IPP prisoners a reasonable opportunity to demonstrate to the Parole Board that they should be released.

A useful report about IPP was issued in 2010 by the Prison Reform Trust.

See also the excellent article in Criminal Law and Justice Weekly 31st July 2010 which examines IPP in detail including the problems which had arisen in connection with release once the minimum period has been served.

Ministry of Justice proposals:

The Ministry's press release ("Tough Intelligent Sentencing") indicates that IPP will be replaced by a regime having the following  features:-
  • Mandatory life sentences - a ‘two strikes’ policy so that a mandatory life sentence will be given to anyone convicted of a second very serious sexual or violent crime. This will mean that mandatory life sentences can be given for crimes other than murder
  • Extending the category of the most serious sexual and violent offences to include child sex offences, terrorism offences and ‘causing or allowing the death of a child’ so that the new provisions will apply to them
  • The Extended Determinate Sentence (EDS) – all dangerous criminals convicted of serious sexual and violent crimes will be imprisoned for at least two thirds of their sentence, marking an end to the regime which allowed the release of these offenders at the half-way point. Offenders convicted of the most serious sexual and violent crimes in this category will not be released before the end of their sentence without Parole Board approval
  • Extended licence period – criminals who complete an EDS must then serve extended licence periods where they will be closely monitored and returned to prison if necessary. The courts have the power to give up to an extra five years of licence for violent offenders and eight years for sexual offenders on top of their prison sentence 
The new sentencing regime for such dangerous offenders would not apply to those already sentenced to IPP.  They would continue to be assessed by the Parole Board on a case by case basis.

Kenneth Clarke (Secretary of State for Justice) stated that:

'The new regime will restore clarity, coherence and common sense to sentencing, rid us of the inconsistent and confusing IPP regime and give victims a clearer understanding of how long offenders will actually serve in prison."

The detailed amendment proposals are set out in "Notices of amendment given on 26th October" (see 3627 at NC30) and they proceed, as is unfortunately usual, by the "cut and paste" technique.  This makes it far from easy to see the full legislative scheme as it will be if and when enacted.  In fact, in this instance, the amount of cutting and pasting required is very extensive.  At this point, one interesting feature may be noted.  It is a proposal to give the Secretary of State an "Henry VIII power" to alter the test for release on licence of certain prisoners - see NC34 here

The passing of IPP will not be mourned.   A fuller analysis of the proposals for its replacement will be necessary.

Earlier Law and Lawyers posts relating to IPP:

24th June 2010 ..... 11th July 2010 ..... 2nd November 2010

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