Swings and roundabouts: crime reduction provisions in LASPO

After a turbulent 11-month passage through parliament the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) finally became law on 1 May.

While much of the interest focused on the drastic reduction in the scope of and eligibility for civil legal aid, the Act introduces a range of reforms to criminal law which have received comparatively little attention.

Part 3 of the Act introduces a huge and disparate range of measures relating to the sentencing and punishment of offenders. The Ministry of Justice trumpeted the adoption of new provisions which chime with 'tough on crime' rhetoric but closer examination of the Act reveals new rules undoubtedly aimed at cutting costs by reducing the overall prison population. Other provisions that are of superficial appeal will arguably have very little effect on either crime rates or public safety.

Offences new and amended

The Act creates four new criminal offences and amends the rules on self-defence.

The new offences are: threatening another person with an offensive weapon/bladed article in public or at a school thereby creating immediate risk of physical harm; causing serious injury by dangerous driving; buying scrap metal for cash; and, perhaps the most significant, squatting in a residential building (see box).

The 2012 Act also amends the provisions of the Criminal Justice and Immigration Act 2008 on the protection of property.

Since the Tony Martin case in 1999, there has been a popular campaign in favour of an increase in the rights of householders ?to protect themselves and their property from intruders.

The Act amends section 76 of the CJIA 2008 to include the common law defence of protection of property. It also seeks to clarify, in relation to the degree of force that is deemed reasonable, that the householder is not under a duty to retreat, but that failure to retreat may be a factor to be taken into account in considering the reasonableness of his response.

The relevance of the new rule will depend on what the courts will make of the new provisions when they come into force. The extent to which the new law will in fact increase the rights of the householder is questionable. Will it really add anything to the 2008 Act other than a further layer of confusion? It is perhaps disappointing that the government considered it necessary to amend yet further what was a simple, workable and flexible definition in order to appease the tabloid press.

Tougher sentencing regime?

Amendments to the Bail Act 1976 introduce a new sentencing framework. Whether the net result of these changes will be an increase or a reduction in the overall prison population remains to be seen.

For example, much has been made of the new right for prosecutors to appeal against Crown Court decisions to grant bail. This measure has been introduced in response to a number of high-profile cases in which defendants have been released on bail and proceeded to commit further serious offences. However, much less has been made of the change to the Bail Act which introduces a 'no real prospect' test, which requires the release on bail of those defendants who are unlikely to receive a custodial sentence upon conviction. The ?net result of these two measures is likely ?to be an overall reduction in the number ?of individuals remanded in custody pending trial.

Second, the government has claimed that the Act introduces a tougher sentencing regime, in particular, the introduction of mandatory life sentences for a second conviction for a range of serious sexual ?and violent offences (the so-called 'two strikes' rule).

However, the Act also quietly scraps indefinite sentences of imprisonment for public protection (IPPs). The IPP is a controversial sentence which has led to the detention in custody of a wide range of offenders for such time until they could establish to the satisfaction of a parole board that they no longer posed a danger to society. The introduction of IPPs had the effect of creating a very significant body of inmates who were destined to remain in custody for a period far exceeding the minimum tariff set by the court. This created very considerable pressure on the available prison estate which will eventually be relieved by the coming into force of this provision. However, while the abolition of IPPs is to be welcomed, it is regrettable that these provisions will not apply to those prisoners currently serving IPPs.

The Act envisages greater use of penalty notices and conditional cautions to increase the percentage of cases being disposed of pre-charge and reduce the burden on the court system. It also creates a strengthened framework for fines and community sentences which is clearly aimed at the increased use of non-custodial disposals. Similarly, the Act will allow courts to suspend sentences for up to two years, rather than the current 12 months, in a clear bid to encourage courts to make greater use of this option.

Release and rehabilitation

The Act contains a number of measures that promote the effective rehabilitation of convicted offenders back into society.

Most notably, it amends the Rehabilitation of Offenders Act 1974, which governs the 'spending' of old convictions so that a greater number of offenders will in future benefit from its provisions. Currently, the convictions of those sentenced to over 30 months' imprisonment can never be spent. Under the new provisions, this will be reduced to sentences over 48 months in duration. The Act also reduces the rehabilitation periods for those who have served shorter custodial periods, on a sliding scale basis. However, exceptions still apply in respect of work with children and other vulnerable individuals.

The Act makes numerous amendments to the release and recall of prisoners, including provision for the unconditional release of prisoners serving sentences of less than 12 months at the half-way point of the sentence.

One eye-catching initiative is a new power, under section 129 of the Act, to force prisoners to make payments to support victims of crime. Given the very small sums to which such a power could ever relate, this is a provision which is surely a triumph of spin over substance.

The driving force behind the Act has been the need to cut costs. The majority of the headline-grabbing initiatives cost little and will be outweighed by the cost savings achieved by the overall reduction in the prison population. In tandem with the drastic cuts to civil legal aid, part 3 of the Act will surely achieve the aim of reducing the Ministry of Justice budget. However, the Act is also likely to have an insidious but far-reaching impact on the budgets of other departments and on society.