Life in crime | A changing sentencing landscape

The sentencing landscape changed dramatically with the advent of LASPO. For the first time, the Court of Appeal has offered guidance on the approach that the courts will adopt towards serious offenders facing the toughest sentences to make sense of a complicated area for practitioners.

In R v Saunders [2013] EWCA Crim 1027, 3 appellants in unrelated cases appealed against the imposition of non-mandatory sentences of life imprisonment. They had been sentenced shortly before the changes under the 2012 Act came into force on 3 December, 2012. The appellants argued, unsuccessfully, that they should have been sentenced under the new regime. The court wholeheartedly disagreed with this approach and reiterated that such a course of action would lead to chaos in the sentencing and release provisions. The real meat of the case came when their Lordships turned their attention to the hierarchy of public protection sentences.

As a reminder, following LASPO, life imprisonment arises in three situations: it is mandatory after conviction for murder; it is obligatory unless the particular circumstances would make it unjust where an offender clocks up a conviction for a second listed offence under section 224A of the 2003 Act. Finally, the sentence of life imprisonment under section 225 of the 2003 Act following conviction for a serious specified offence survives. The court's discretion is triggered where an offender is deemed dangerous, the offence is punishable with life and the court considers that the offence justifies life imprisonment. Below this, an extended sentence is the last option. The all-new LASPO extended sentence mandates that the offender is not released until at least the two-thirds point of the custodial term had been reached. Where the custodial term is ten years or more, or the offences for which the sentence will be imposed include one in Schedule 15B of the 2003 Act, the Parole Board will be the gatekeeper for release.

For anyone convicted after 3 December, 2012 the sentence of imprisonment for public protection is now defunct. The ?court considered that there may be offenders, who represent a danger to the public, who fall into this middle ground left vacant by IPP. They would not qualify for the statutory (two-strikes) life sentence. Nor would the all-new extended sentence be weighty enough.

The court concluded that very long-term public protection should be achieved by the imposition of a discretionary life sentence. Accordingly, in cases in which prior to the enactment of the 2012 Act the court would have concluded that IPP was required for public protection, the discretionary life sentence would arise for consideration, and where appropriate, if the necessary level of public protection could not be achieved by the new extended sentence, would be ordered. This case provides much-needed clarity on an increasingly complicated area of law. It reinforces the hierarchy of public protection offences and helps practitioners to advise their clients. Advocates will be able to assist sentencing judges by structuring their submissions based on ?this guidance.