#10400 - Custodial Sentences - BPC Criminal Litigation (formerly BPTC) 2024/2025

CUSTODIAL SENTENCES

RELEASE ON LICENCE

• sentences of 12+ months (except dangerous offenders + life sentence prisoners - separate provision) must be released on license after serving half of sentence

MURDER (CJA 2003 s269)

• person aged 18+ on date of conviction AND commission must be sentenced to life imprisonment (unless under 18 when offence committed)

• early release provisions apply after serving specified part of sentence (unless 21+ and "whole life order" must be made)

• procedure

  1. ID starting point

  2. take into account mitigating / aggravating factors

  3. specify minimum term appropriate to seriousness

  4. deduct:

     1. days spend in remand (unless days wouldn't count if sentence had been indeterminate); or

     2. time spent on bail subject to curfew (if CJA s240A / Crim Justice and Immigration Act 2009 sch 6 would've applied)

  5. on passing sentence, must state reasons and starting point with reasons and reasons for departure in open court

Starting points

• whole life sentence

  • seriousness of offence(s) is exceptionally high AND offender 21+ when committed

  • usually exceptionally high e.g multiple sadistic / sexual murder, sexual / sadistic child murder, murder pre-con

• 30 years

  • seriousness of offence(s) particularly high AND offender 18+ when committed

  • usually particularly high e.g. multiple murder, sexual / sadistic murder, murder of police

• 25 years

  • seriousness of offence(s) is NOT exceptionally / particularly high AND offender 18+ when committed AND took weapon to scene and used it to commit the murder

• 15 years N.B. = starting point for offenders aged 18-20

  • seriousness NOT exceptionally / particularly high AND offender 18+ when committed AND no weapon

• 12 years

  • offender under 18 when committed

MANDATORY MINIMUM SENTENCES

Third domestic burglary OR class A drugs trafficking (PCC(S)A 2000 s111, 112)

• if prescribed sentence NOT imposed, state why in open court

• pre-cons:

  • absolute / conditional discharges do NOT count

  • youth convictions do count

• if requirements met, both = indictment only

• early guilty plea: up to 20%

• can make hospital order

• burglary

  • must impose minimum 3 years' imprisonment (unless particular circumstances relating to the offence OR offender make it unjust to do so) if:

    1. 18+ when committed

    2. 2+ domestic burglary pre-cons when committed

    3. all burglaries committed on / after 1 Dec 1999

    4. offender convicted of first domestic burglary before committing second

• class A drugs trafficking

  • must impose minimum 7 years' imprisonment (unless particular circumstances relating to the offence OR offender make it unjust to do so) if:

1. 18+ when committed

2. current offence committed on / after 1 Oct 1997

3. 2+ separate class A drug trafficking pre-cons when committed

   • drug trafficking = production, supply, possession with intent, importation, exportation etc.

Possession of a prohibited weapon etc. (Firearms Act 1968 s51A)

• must impose (unless exceptional circumstances relating to the offence OR offender make it unjust to do so):

  • 18+ when committed: minimum 5 years' (in young offender institution if U21)

  • 16 or 17 when committed: minimum 3 years' in young offender institution

• no reduction for G plea if reduces sentence below minimum term

DANGEROUS OFFENDERS

• definitions

  • specified offence = listed in sch 15 CJA 2003 (2+ years' imprisonment)

  • serious (specified) offence = listed in sch 15 AND punishable for 18+ by life / 10+ years

• main sch 15 offences

  • violent offences: manslaughter, kidnapping, false imprisonment, ABH, GBH, conspiracy to murder, burglary with intent to inflict GBH / do unlawful damage, arson (or aiding, abetting etc.)

  • sexual offences: rape, sexual assault, assault by penetration, causing person to engage in sexual activity without consent (or aiding, abetting etc.)

• assessing dangerousness

  • the test

    • significant risk to members of public of serious harm occasioned by commission of further offences

  • the assessment (based on PSR, pre-cons, psychiatric report)

    • court must take into account all available info about nature + circumstances of the offence

    • court may take into account:

      • pre-cons

      • pattern of behaviour

      • info about the offender

      • youths: level of maturity + that young offenders may develop in shorter time than adults (R v Lang)

Life sentences for dangerous offenders (s225 CJA 2003)

• court must impose life sentence if:

1. D 18+ convicted of "serious specified offence" (sch 15)

2. offence punishable with life imprisonment

3. seriousness of offence(s) justify life imprisonment i.e. high culpability, grave offence (Kehoe)

4. dangerous: significant risk to public of serious harm by D committing further specified offences

• court must fix minimum term, before which D eligible for parole

• offender on licence for rest of life

Extended sentences (s226A CJA 2003)

• extended sentence =

  • appropriate custodial term

    • normal sentence had it not required an extension

    • 2+ specified offences: impose term of 4 years to reflect seriousness of all

------- PLUS --------

• extension period

  • = as long as court thinks necessary to protect public from serious harm by D committing further specified offences

  • offender on licence

  • specified violent offence: up to 5 years

  • specified sexual offence: up to 8 years

• total = up to max sentence for offence

• when can an extended sentence be imposed?

  • court may impose extended sentence if:

1. D 18+ convicted of "specified offence" (sch 15)

2. either

   1. offender convicted of sch 15B offence before committing latest offence; OR

   2. appropriate custodial term is at least 4 years

3. dangerous: significant risk to public of serious harm by D committing further specified offences

4. court NOT required to impose imprisonment for life under s225 / s224A

• release on licence

  • eligible after serving 2/3 of appropriate custodial term

    • if for current offence app custodial term is 10+ years OR offence listed in Sch 15B

      • only released if parole board directs no detention longer necessary for protection of public before end of app custodial term

      • must be released at end of custodial term

    • otherwise, automatically released after serving 2/3

• court may make hospital order instead

Life for a second listed offence (CJA s224A)

• court must impose life sentence (unless particular circumstances relating to offence, previous sch 15B offence OR offender make it unjust in circumstances) if:

1. D 18+ convicted of offence in part I sch 15B CJA

2. offence committed on / after 3 Dec 2012

3. sentence condition met: court would otherwise impose imprisonment of 10+ years (disregarding any extension period)

4. previous offence condition met:

   1. at time when offence committed, pre-con for sch 15B offence; AND

   2. for that pre-con sentenced to:

      • life sentence with a minimum term of 5 years; OR

      • extended sentence with a custodial term of 10 years+; OR

      • sentence of imprisonment of 10 years+

SUSPENDED SENTENCES (CJA 2003 ss189-193)

• CANNOT pass suspended sentence AND community sentence at same time

• = custodial sentence, so must pass custody threshold

Duration of sentence which may be suspended

• CC

  • 14 days - 2 years

• mags'

  • 14 days - 12 months (when offender sentenced for 2+ either-way offences)

When does a suspended sentence comprise?

• operational period

  • = time for which sentence is suspended (6 months - 2 years)

  • can extend beyond supervision period

• supervision period

  • = if community requirements (same as for community order) added, time during which O must comply with them

  • CANNOT extend beyond operational period

When does a suspended sentence take effect?

• only if another offence committed during operational period

• breach

  • breach of community requirement

    • = failure without reasonable excuse to comply during supervision period

    • first failure: officer must give warning (failure unacceptable + if fails to comply again within 12 months will be brought before court)

    • second failure within 12 months: lay info with mags' or CC

  • convicted of offence during operational period

    • suspended sentence passed by mags' mags' can deal

    • suspended sentence passed by CC and later convicted by mags' commit to CC OR notify CC, so can issue process to secure appearance

    • later convinced by CC CC can deal regardless of whether suspended sentence passed by mags' or CC

  • sanctions for...