CRIMINAL JUSTICE ACT 2003 - SENTENCING CHANGES


On 4 April 2005, significant changes were made to the law of sentencing in criminal cases.


The Criminal Justice Act 2003 has an underlying philosophy. The number of people sentenced to custody for offences that do not endanger the public should be reduced when effective community penalties can be justified, but if a defendant is dangerous, then there should be indefinite imprisonment or strict licence conditions.


The changes apply to offences committed on or after 4 April 2005.




Dangerous offenders - chapter 5



The identification of dangerous offenders becomes a critical issue. There is a series of relevant definitions.


A specified offence (section 224) is either a specified violent offence (schedule 15, part 1) or a specified sexual offence (schedule 15, part 2). These lists are far more extensive than might be expected. Within the specified violent offences are, for instance, crimes under section 47 of the Offences Against the Person Act 1861 and, under the specified sexual offences, voyeurism under the Sexual Offences Act 2003.


A serious offence is a specified offence for which the penalty is prescribed as life imprisonment or ten years' custody or more. Serious harm within these provisions means death or serious personal injury whether physical or psychological.


Where a person aged 18 or older is convicted of a serious specified offence committed after the commencement of the section - and the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences - the court must impose either life imprisonment or imprisonment for public protection. It must be noted that while the trigger is serious specified offences, it is the significant risk of any specified offence that has to be tested in deciding whether the public is at risk of serious harm (section 225).


A similar provision is introduced for those younger than 18, save that when detention for life is inappropriate, the court must first consider an extended sentence prior to imposing detention for public protection (section 226).


Where a person aged 18 or older is convicted of a specified offence, other than a serious offence, committed after the commencement of the section and 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, the court must impose an extended sentence that is a sentence of imprisonment comprising an appropriate custodial term (of not less than 12 months) with an extension period. There are parallel provisions for those under 18 years old (sections 227 and 228).


Special rules apply in assessing the significant risk. If at the time of the offence the defendant has no previous convictions for a specified offence, or is younger than 18, the court may take account of all relevant information, such as the nature and circumstances of the offence and the pattern of behaviour. However, if a defendant is 18 or older, and has previous convictions for specified offences, the court must assume there is a risk unless it considers it is unreasonable to conclude there is such a risk.


Those sentenced to life imprisonment are released only at some point after the minimum term specified by the court, at the discretion of the Parole Board, with licence that lasts for their life time.


If a penalty of imprisonment or detention for public protection is imposed, then the defendant may only be released at some point after the minimum term specified by the court, at the discretion of the Parole Board with a lifetime's licence. However, the Parole Board may revoke that licence once ten years of the licence has passed. This is the case whatever the maximum sentence for the serious specified offence.


An extended sentence involves a release at some point after the halfway stage of the custodial term, at the discretion of the Parole Board, with an extended licence. However, the custodial term cannot be less than 12 months and the extended licence cannot exceed five years for violent offences, or eight years for sexual offences. The total custodial term and extended licence must not exceed the maximum for the relevant crime.


The effect of these provisions enables the provisions for longer-than-normal sentences and for automatic life sentences for a second serious offence to be abolished.


It is the compulsory nature of these sentences that will cause considerable concern. Everything will depend on the definition the courts give to the meaning of 'significant risk'.




Youth courts



As a result of these provisions, new procedures are required in the youth courts.


The court will decline jurisdiction if the offence is a specified offence and there may be a significant risk to members to the public of serious harm occasioned by the commission of further specified offences, whereupon the case will be sent for trial.


If jurisdiction is accepted and a conviction is obtained, the court may, at the sentencing stage, again consider whether the dangerous offender provisions should be implemented; a committal for sentence is then possible.




Thresholds



A test as to when the custodial threshold is reached has been brought into effect.


This provides that a custodial sentence must not be imposed unless the offence (or series) is so serious that neither a community penalty nor fine can be justified (section 152).


Whether such a sentence can be justified will have to be examined against the five principal purposes of sentencing, namely, protection of the public, punishment of the offender, reduction of crime, rehabilitation of the offender and reparation for the victim (section142).




Community penalties



The law in relation to community penalties is dramatically changed (section 147).


No longer will there be a series of different community penalties. Instead, there is a single generic community order that may comprise one or more 'requirements'. These include: unpaid work, prescribed activities and/or programmes, prohibited activities, curfews, exclusion orders, conditions of residence, mental health treatment, drug rehabilitation, alcohol treatment and, for those younger than 25, attendance centres. Curfew and exclusion requirements will normally require electronic monitoring.


The first stage in deciding which of these penalties should be imposed is to identify the seriousness of the offence. The penalty must be commensurate with seriousness. The Sentencing Guidelines Council has recommended that, in each case, the court should specify whether a low, medium, or high-level community order is required. The courts are also required to identify the purpose of the sentence within the five sentencing objectives. Not only must the requirements be commensurate, they must also be the most suitable for the particular defendant and compatible with each other (see www.sentencing-guidelines.gov.uk).


The community order is not a progressive penalty and the fact that such an order has been received once does not mean it cannot be imposed again in appropriate circumstances.







REDUCING PRISON POPULATION



Significant changes have been made to the use of suspended prison sentences. No longer is there any requirement that there be exceptional circumstances before such a penalty can be imposed, but it remains an essential requirement that the offence be so serious that no fine or community order can be justified.



Under transitional arrangements, sentences of between 14 days and six months in the magistrates' court can be suspended, as can sentences between 14 days and 12 months in the Crown Court. Similarly, under transitional arrangements, a period in a young offenders' institution for 18 to 21-year-olds may now be suspended. The term of suspension must be the shortest commensurate with the seriousness of the offence.



All courts may now add requirements to a suspended sentence. The court is able to review a suspended sentence at regular intervals if it wishes.



A new form of deferred sentence will be piloted in appropriate areas. This differs from the existing deferred sentence in that the court can now identify a person to supervise the sentence and regularly review conduct while the order continues. In the event of a breach, the offender can immediately be brought back before the court.







BREACH PROCEEDINGS



Significant changes have been made to the penalties available to the courts on breach of a community order. No longer may a fine be imposed.



The court must either increase the severity of the existing sentence, or revoke the sentence and re-sentence for the original offence. Having decided that a community sentence is commensurate with the seriousness of the offence, the primary objective when sentencing for breach of requirements is to ensure that those requirements are completed.



The Act allows custodial sentences to be imposed in response to a breach but custody should be the last resort reserved for those cases of deliberate and repeated breach where all reasonable efforts to ensure that the offender complies have failed.



Before increasing the onerousness of requirements, sentencers should take account of the offender's ability to comply and should avoid precipitating further breach by overloading the offender with too many or conflicting requirements. There may be cases where the court will need to consider re-sentencing to a differently constituted community sentence to secure compliance for the purposes of the original sentence.



Also, all courts must consider credit for time spent on remand. This will no longer be an executive decision of the Prison Service.





By Anthony Edwards, TV Edwards, London