Friday, 19 March 2021

Police, Crime, Sentencing and Courts Bill ~ Sentencing

The Police, Crime, Sentencing and Courts Bill will make important changes to the Sentencing Code (previous post) which came into force as recently as 1 December 2020.

The Sentencing Code is actually Parts 2 to 13 of the Sentencing Act 2020.  See also Sentencing Council - Sentencing Code.

This post is an overview of (a) amendments to the Sexual Offences Act 2003, (b) Clauses 100-105 which deal with the minimum term in murder and other serious cases and (c) the post notes the bill's provisions for early release of some categories of offenders.

The provisions are

rather complicated but are likely to be generally welcomed within the population. For example, a future offender such as Hashem Abedi (Manchester Arena bombing) could receive a whole life term even if under age 21 at the time of the offence(s). Under present law, Hashem Abedi, being under age 21, received 22 life sentences each with a minimum term of 55 years. 

The public is also likely to welcome the fact that some offenders will be less likely to avoid a minimum term of imprisonment - e.g. the third (or subsequent) time burglar. 

Furthermore, more prisoners will have to serve two-thirds of their sentences before being eligible for parole.

*** Amendments to Sexual Offences Act 2003***

The Sexual Offences Act 2003 (SOA) will be amended by Clauses 44 and 45 of the Bill. 

Clause 44 will amend section 14 of the SOA (Arranging or facilitating commission of a child sex offence). Currently a charge under section 14 only applies to the arranging or facilitation of offences under sections 9 to 13. The amendment will widen this to embrace sections 5 to 13. It will be noticed that sections 5 to 8 are particularly serious offences against children under age 13 - e.g. rape of a child under 13.

Sections 16 to 19 of the SOA are concerned with abuse of positions of trust. Section 21 defines who is in a position of trust and section 22 deals with interpretation. Clause 45 will insert a new section 22A into the SOA. The new section will be headed "Further positions of trust" and will bring individuals such as sports coaches and religious teachers within the term "position of trust".

See the Positions of Trust Factsheet.

*** Sentencing and Release ***

Part 7 of the Bill (Sentencing and Release) is divided into 2 Chapters - Chapter 1 (Custodial sentences) and Chapter 2 (Community Sentences).

My focus in this post will be on changes made by Part 7 Chapter 1 of the Bill to sentence length for serious offenders. This topic is subject to its own factsheet - HERE.

Clause 100 (Minimum sentences for particular offences)

Currently the sentencing code provides for a minimum sentence to be imposed in relation to certain offences. Clause 100 seeks to ensure that the specified minimum will be applied unless there are EXCEPTIONAL circumstances which (a) relate to the offender and (b) justify not doing so. This is a stricter test than at present.  The sections in the sentencing code to be amended in this way are:

Section 312 (Threatening with a weapon or bladed article)

Section 313 (7 year minimum for third Class A drug trafficking off

Section 314 (3 years for third domestic burglary)

Section 315 (Repeat offence involving weapon or bladed article)

Clause 101 (Whole life order as starting point for premeditated child murder)

Clause 101 will amend Schedule 21 to the Sentencing Code. Schedule 21 deals with determination of the minimum term in relation to the mandatory life sentence for murder. 

In a number of murder cases, whole life orders are possible as a starting point for sentencing. Those include the murder of a child if involving the abduction of the child or sexual or sadistic motivation. Clause 101 will add to the list cases where the murder of a child involved a substantial degree of premeditation or planning.

Clause 102 Whole Life Orders for some young adults:

Clause 102 will amend Section 321 to the Sentencing Code so that in some exceptional cases a young adult (i.e. aged 18 to uder 21) may receive a whole life order.  

This particular change is said by the Factsheet to arise from the fact that - "the judge presiding over the trial of Hashem Abedi, the brother of the Manchester Arena bomber was unable to give him a WLO due to the defendant’s age but stated that it would have been a ‘just sentence’ in that case. We believe it is right that judges should be able to exercise this power in exceptional circumstances such as this."

The Abedi case is discussed in a previous post.  Abedi was actually sentenced to life imprisonment on each of 22 counts of murder with minimum terms of 55 years on each count.

Clause 103 Starting points for murder committed when under 18:

Clause 103 will amend Schedule 21 to the Sentencing Code with the aim of increasing the mnimum terms to be served for those aged under 18 at the time they commit a murder. 

Clause 104 Reviww of minimum term for offenders serving Detention during Her Majesty's Pleasure:

The appropriate sentence for an offence of murder committed by an offender under age 18 is Detention during Her Majetsy's Pleasure (DHMP) - see Sentencing Code section 259. A minimum term is still determined by the court.

Clause 104 will allow the offender to apply to the Secretary of State for review of a DHMP minimum term once the offender has served half the term imposed. The Secretary of State will normally have to refer the application to the High Court and the court will have power to reduce the minimum term.

Clause 105 Life sentence not fixed by law: minimum term:

Clause 105 deals with fixing the minimum term to be served by an offender who has been sentence to LIFE imprisonment where the life sentence is NOT fixed by law.

This is a complicated provision. The starting point in determining the minimum term will be what is called "the relevant portion of the notional determinate sentence".

Clause 105 then goes on to define "notional determinate sentence"

*** Early release ***

There can be little doubt that public concern exists regarding the fact that some serious offenders sentenced to imprisonment for a determinate period (e.g. 6 years) will usually be released on licence after serving half. The Bill will end this in some cases.

See factsheet on Release of Serious Offenders

More offenders to serve two-thirds:

In April 2020 the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 came into law. This ensured that serious violent or sexual offenders who receive a Standard Determinate Sentence (SDS) of 7 years or more (for an offence for which the maximum penalty is life) are required to serve two-thirds of their sentence in custody instead of half. 

The Bill puts this into primary legislation and applies the two-thirds release point to certain serious violent and sexual offenders given a Standard Determinate Sentence of between 4 and 7 years.

Offenders of Particular Concern:

A further provision in the Bill relates to offenders who receive a Sentence for Offenders of Particular Concern (SOPC) Order. The Bill will require them to serve at least two-thirds of the term imposed. After the 2/3 point they may be release at the discretion of the Parole Board.

SOPC sentences apply to specified terrorist offences and the two most serious child sex offences (rape of a child under 13 and sexual assault of a child under 13). See Sentencing Code section 265 and section 278.

Power to prevent automatic early release of prisoners who become a public protection concern:

The Government introduced emergency legislation after the terrorist attack in Streatham in February 2020 (BBC 3 February 2020 and previous post) to ensure that those convicted of terrorist or terrorist-connected offences serving a Standard Determinate Sentence are not released before the end of their sentence without the approval of the Parole Board.

The government considers that it is necessary to capture those offenders who are not convicted of a terrorism offence but where it later emerges that they pose a credible public protection concern. Those individuals should be reviewed by the Parole Board, to ensure that release at the halfway point is appropriate and safe.

The factsheet comments that - "The new power is intended to be used in rare cases where there is strong evidence which shows that the public may be at risk of serious harm or there may be a national security threat if the offender were to be released at their automatic release date. Instead, they can be referred to the Parole Board who can consider whether they are safe to release or whether they should continue to be detained until the end of their custodial sentence."

What might be done to reduce the risks posed by such individuals whilst they spend the additional time in prison is not mentioned.

Amendments to driving disqualification provisions:

The Bill makes changes to how courts impose driving disqualifications (when imposed with a custodial sentence) so that any longer period served in prison doesn’t reduce the driving disqualification period that should be served in the community. The Road Traffic Offenders Act 1988 and the Sentencing Act 2020 are to be updated to reflect the new later release points for affected prisoners.


Parliament - the Police, Crime, Sentencing and Courts Bill


House of Commons Library - Briefings on the Bill

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