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Criminal Justice Bill


Criminal Justice Bill
Schedule 19 — Prisoners liable to removal from United Kingdom: modifications of Criminal Justice Act 1991

312

 

(3)   

A person who is liable to be detained by virtue of subsection (2)

above is, if at large, to be taken for the purposes of section 49 of the

Prison Act 1952 (c. 52) (persons unlawfully at large) to be unlawfully

at large.

(4)   

Subsection (2) above does not prevent the further removal from the

5

United Kingdom of a person falling within that subsection.

(5)   

Where, in the case of a person returned to prison by virtue of

subsection (2) above, the further custodial period ends before the

sentence expiry date, subsections (1) and (2) of section 33 above

apply in relation to him as if any reference to one-half or two-thirds

10

of the prisoner’s sentence were a reference to the further custodial

period.

(6)   

If a person returned to prison by virtue of subsection (2) above falls

by virtue of subsection (5) above to be released on licence under

section 33(1) or (2) above after the date on which (but for his removal

15

from the United Kingdom) he would have served three-quarters of

his sentence, section 37(1) above has effect in relation to him as if for

the reference to three-quarters of his sentence there were substituted

a reference to the whole of his sentence.

(7)   

If a person who is released on licence under section 33(1) or (2) above

20

at the end of the further custodial period is recalled to prison under

section 39(1) or (2) above, section 33A(3) above shall not apply, but it

shall be the duty of the Secretary of State—

(a)   

if the person is recalled before the date on which (but for his

removal from the United Kingdom) he would have served

25

three-quarters of his sentence, to release him on licence on

that date, and

(b)   

if he is recalled after that date, to release him on the sentence

expiry date.

(8)   

A licence granted by virtue of subsection (7)(a) above shall remain in

30

force until the sentence expiry date.

(9)   

In this section—

   

“further custodial period” has the meaning given by subsection

(2)(a) above;

   

“outstanding custodial period”, in relation to a person to whom

35

this section applies, means the period beginning with the

date on which he was removed from the United Kingdom

and ending with the date on which (but for his removal) he

would have served one-half of his sentence;

   

“sentence expiry date”, in relation to a person to whom this

40

section applies, means the date on which (but for his removal

from the United Kingdom) he would have served the whole

of this sentence.”

 

 

Criminal Justice Bill
Schedule 20 — Determination of minimum term in relation to mandatory life sentence

313

 

Schedule 20

Section 241(5)

 

Determination of minimum term in relation to mandatory life sentence

Interpretation

1          

In this Schedule—

           

“child” means a person under 18 years;

5

           

“mandatory life sentence” means a life sentence passed in

circumstances where the sentence is fixed by law;

           

“minimum term”, in relation to a mandatory life sentence, means the

part of the sentence to be specified in an order under section 241(2);

           

“whole life order” means an order under subsection (4) of section 241.

10

2          

Section 28 of the Crime and Disorder Act 1998 (c. 37) (meaning of “racially

or religiously aggravated”) applies for the purposes of this Schedule as it

applies for the purposes of sections 29 to 32 of that Act.

3          

For the purposes of this Schedule an offence is aggravated by sexual

orientation if it is committed in circumstances falling within subsection

15

(2)(a)(i) or (b)(i) of section 118.

Starting points

4     (1)  

If—

(a)   

the court considers that the seriousness of the offence (or the

combination of the offence and one or more offences associated with

20

it) is exceptionally high, and

(b)   

the offender was aged 21 or over when he committed the offence,

           

the appropriate starting point is a whole life order.

      (2)  

Cases that would normally fall within sub-paragraph (1)(a) include—

(a)   

the murder of two or more persons, where each murder involves any

25

of the following—

(i)   

a substantial degree of premeditation or planning,

(ii)   

the abduction of the victim, or

(iii)   

sexual or sadistic conduct,

(b)   

the murder of a child if involving the abduction of the child or sexual

30

or sadistic motivation,

(c)   

a murder done for the purpose of advancing a political, religious or

ideological cause, or

(d)   

a murder by an offender previously convicted of murder.

5     (1)  

If—

35

(a)   

the case does not fall within paragraph 4(1) but the court considers

that the seriousness of the offence (or the combination of the offence

and one or more offences associated with it) is particularly high, and

(b)   

the offender was aged 18 or over when he committed the offence,

           

the appropriate starting point, in determining the minimum term, is 30

40

years.

      (2)  

Cases that (if not falling within paragraph 4(1)) would normally fall within

sub-paragraph (1)(a) include—

 

 

Criminal Justice Bill
Schedule 20 — Determination of minimum term in relation to mandatory life sentence

314

 

(a)   

the murder of a police officer or prison officer in the course of his

duty,

(b)   

a murder involving the use of a firearm or explosive,

(c)   

a murder done for gain (such as a murder done in the course or

furtherance of robbery or burglary, done for payment or done in the

5

expectation of gain as a result of the death),

(d)   

a murder intended to obstruct or interfere with the course of justice,

(e)   

a murder involving sexual or sadistic conduct,

(f)   

the murder of two or more persons,

(g)   

a murder that is racially or religiously aggravated or aggravated by

10

sexual orientation, or

(h)   

a murder falling within paragraph 4(2) committed by an offender

who was aged under 21 when he committed the offence.

6          

In a case not falling within paragraph 4(1) or 5(1), the appropriate starting

point, in determining the minimum term, is 15 years.

15

Aggravating and mitigating factors

7          

Having chosen a starting point, the court should take into account any

aggravating or mitigating factors, to the extent that it has not allowed for

them in its choice of starting point.

8          

Detailed consideration of aggravating or mitigating factors may result in a

20

minimum term of any length (whatever the starting point), or in the making

of a whole life order.

9          

Aggravating factors (additional to those mentioned in paragraph 4(2) and

5(2)) that may be relevant to the offence of murder include—

(a)   

a significant degree of planning or premeditation,

25

(b)   

the fact that the victim was particularly vulnerable because of age or

disability,

(c)   

mental or physical suffering inflicted on the victim before death,

(d)   

the abuse of a position of trust,

(e)   

the use of duress or threats against another person to facilitate the

30

commission of the offence,

(f)   

the fact that the victim was providing a public service or performing

a public duty, and

(g)   

concealment, destruction or dismemberment of the body.

10         

Mitigating factors that may be relevant to the offence of murder include—

35

(a)   

an intention to cause serious bodily harm rather than to kill,

(b)   

lack of premeditation,

(c)   

the fact that the offender suffered from any mental disorder or

mental disability which (although not falling within section 2(1) of

the Homicide Act 1957 (c. 11)), lowered his degree of culpability,

40

(d)   

the fact that the offender was provoked (for example, by prolonged

stress) in a way not amounting to a defence of provocation,

(e)   

the fact that the offender acted to any extent in self-defence,

(f)   

a belief by the offender that the murder was an act of mercy, and

(g)   

the age of the offender.

45

 

 

Criminal Justice Bill
Schedule 21 — Mandatory life sentences: transitional cases

315

 

11         

Nothing in this Schedule restricts the application of—

(a)   

section 115(2) (previous convictions),

(b)   

section 115(3) (bail), or

(c)   

section 116 (guilty plea).

Schedule 21

5

Section 248

 

Mandatory life sentences: transitional cases

Interpretation

1          

In this Schedule—

           

“the commencement date” means the day on which section 241 comes

into force;

10

           

“the early release provisions” means the provisions of section 28(5) to

(8) of the Crime (Sentences) Act 1997 (c. 43);

           

“existing prisoner” means a person serving one or more mandatory life

sentences passed before the commencement date (whether or not he

is also serving any other sentence);

15

           

“life sentence” means a sentence of imprisonment for life or custody for

life passed in England and Wales or by a court-martial outside

England and Wales;

           

“mandatory life sentence” means a life sentence passed in

circumstances where the sentence was fixed by law.

20

Existing prisoners notified by Secretary of State

2          

Paragraph 3 applies in relation to any existing prisoner who, in respect of

any mandatory life sentence, has before the commencement date been

notified in writing by the Secretary of State (otherwise than in a notice that

is expressed to be provisional) either—

25

(a)   

of a minimum period which in the view of the Secretary of State

should be served before the prisoner’s release on licence, or

(b)   

that the Secretary of State does not intend that the prisoner should

ever be released on licence.

3     (1)  

On the application of the existing prisoner, the High Court must, in relation

30

to the mandatory life sentence, either—

(a)   

order that the early release provisions are to apply to him as soon as

he has served the part of the sentence which is specified in the order,

which in a case falling within paragraph 2(a) must not be greater

than the notified minimum term, or

35

(b)   

in a case falling within paragraph 2(b), order that the early release

provisions are not to apply to the offender.

      (2)  

In a case falling within paragraph 2(a), no application may be made under

this paragraph after the end of the notified minimum term.

      (3)  

Where no application under this paragraph is made in a case falling within

40

paragraph 2(a), the early release provisions apply to the prisoner in respect

of the sentence as soon as he has served the notified minimum term (or, if he

 

 

Criminal Justice Bill
Schedule 21 — Mandatory life sentences: transitional cases

316

 

has served that term before the commencement date but has not been

released, from the commencement date).

      (4)  

In this paragraph “the notified minimum term” means the minimum period

notified as mentioned in paragraph 2(a), or where the prisoner has been so

notified on more than one occasion, the period most recently so notified.

5

4     (1)  

In dealing with an application under paragraph 3, the High Court must have

regard to—

(a)   

the seriousness of the offence, or of the combination of the offence

and one or more offences associated with it,

(b)   

where the court is satisfied that, if the prisoner had been sentenced

10

to a term of imprisonment, the length of his sentence would have

been treated by section 67 of the Criminal Justice Act 1967 (c. 80) as

being reduced by a particular period, the effect which that section

would have had if he had been sentenced to a term of imprisonment,

and

15

(c)   

the length of the notified minimum term or, where a notification

falling within paragraph 2(b) has been given to the prisoner, to the

fact that such a notification has been given.

      (2)  

In considering under sub-paragraph (1) the seriousness of the offence, or of

the combination of the offence and one or more offences associated with it,

20

the High Court must have regard to—

(a)   

the general principles set out in Schedule 20, and

(b)   

any recommendation made to the Secretary of State by the trial judge

or the Lord Chief Justice as to the minimum term to be served by the

offender before release on licence.

25

      (3)  

In this paragraph “the notified minimum term” has the same meaning as in

paragraph 3.

Existing prisoners not notified by Secretary of State

5          

Paragraph 6 applies in relation to any existing prisoner who, in respect of

any mandatory life sentence, has not before the commencement date been

30

notified as mentioned in paragraph 2(a) or (b) by the Secretary of State.

6          

The Secretary of State must refer the prisoner’s case to the High Court for the

making by the High Court of an order under subsection (2) or (4) of section

241 in relation to the mandatory life sentence.

7          

In considering under subsection (3) or (4) of section 241 the seriousness of an

35

offence (or the combination of an offence and one or more offences

associated with it) in a case referred to the High Court under paragraph 6,

the High Court must have regard not only to the matters mentioned in

subsection (5) of that section but also to any recommendation made to the

Secretary of State by the trial judge or the Lord Chief Justice as to the

40

minimum term to be served by the offender before release on licence.

8          

In dealing with a reference under paragraph 6, the High Court—

(a)   

may not make an order under subsection (2) of section 241 specifying

a part of the sentence which in the opinion of the court is greater than

that which, under the practice followed by the Secretary of State

45

before December 2002, the Secretary of State would have been likely

to notify as mentioned in paragraph 2(a), and

 

 

Criminal Justice Bill
Schedule 21 — Mandatory life sentences: transitional cases

317

 

(b)   

may not make an order under subsection (4) of section 241 unless the

court is of the opinion that, under the practice followed by the

Secretary of State before December 2002, the Secretary of State would

have been likely to give the prisoner a notification falling within

paragraph 2(b).

5

Sentences passed on or after commencement date in respect of offences committed before that

date

9          

Paragraph 10 applies where—

(a)   

on or after the commencement date a court passes a life sentence in

circumstances where the sentence is fixed by law, and

10

(b)   

the offence to which the sentence relates was committed before the

commencement date.

10         

The court—

(a)   

may not make an order under subsection (2) of section 241 specifying

a part of the sentence which in the opinion of the court is greater than

15

that which, under the practice followed by the Secretary of State

before December 2002, the Secretary of State would have been likely

to notify as mentioned in paragraph 2(a), and

(b)   

may not make an order under subsection (4) of section 241 unless the

court is of the opinion that, under the practice followed by the

20

Secretary of State before December 2002, the Secretary of State would

have been likely to give the prisoner a notification falling within

paragraph 2(b).

Proceedings in High Court

11    (1)  

An application under paragraph 3 or a reference under paragraph 6 is to be

25

determined by a single judge of the High Court without an oral hearing.

      (2)  

In relation to such an application or reference, any reference to “the court” in

section 241(2) to (5) and Schedule 20 is to be read as a reference to the High

Court.

Giving of reasons

30

12    (1)  

Where the High Court makes an order under paragraph 3(1)(a) or (b), it

must state in open court, in ordinary language, its reasons for deciding on

the order made.

      (2)  

Where the order is an order under paragraph 3(1)(a) specifying a part of the

sentence shorter than the notified minimum term the High Court must, in

35

particular, state its reasons for departing from the notified minimum term.

13         

Where the High Court makes an order under subsection (2) or (4) of section

241 on a reference under paragraph 6, subsection (2) of section 242 does not

apply.

Right of appeal

40

14    (1)  

A person who has made an application under paragraph 3 or in respect of

whom a reference has been made under paragraph 6 may with the leave of

 

 

Criminal Justice Bill
Schedule 21 — Mandatory life sentences: transitional cases

318

 

the Court of Appeal appeal to the Court of Appeal against the decision of the

High Court on the application or reference.

      (2)  

Section 1(1) of the Administration of Justice Act 1960 (c. 65) (appeal to House

of Lords from decision of High Court in a criminal cause or matter) and

section 18(1)(a) of the Supreme Court Act 1981 (c. 54) (exclusion of appeal

5

from High Court to Court of Appeal in a criminal cause or matter) do not

apply in relation to a decision to which sub-paragraph (1) applies.

      (3)  

The jurisdiction conferred on the Court of Appeal by this paragraph is to be

exercised by the criminal division of that court.

      (4)  

Section 33(3) of the Criminal Appeal Act 1968 (c. 19) (limitation on appeal

10

from criminal division of Court of Appeal) does not prevent an appeal to the

House of Lords under this paragraph.

      (5)  

In relation to appeals to the Court of Appeal or the House of Lords under

this paragraph, the Secretary of State may make an order containing

provision corresponding to any provision in the Criminal Appeal Act 1968

15

(subject to any specified modifications).

Review of minimum term on reference by Attorney General

15         

Section 36 of the Criminal Justice Act 1988 (c. 33) applies in relation to an

order made by the High Court under paragraph 3(1)(a) as it applies in

relation to an order made by the Crown Court under section 241(2).

20

Modification of early release provisions

16    (1)  

In relation to an existing prisoner, section 28 of the Crime (Sentences) Act

1997 (c. 43) has effect subject to the following modifications.

      (2)  

Any reference to a life prisoner in respect of whom a minimum term order

has been made includes a reference to—

25

(a)   

an existing prisoner in respect of whom an order under paragraph

3(1)(a) has been made, and

(b)   

an existing prisoner serving a sentence in respect of which paragraph

3(3) applies.

      (3)  

Any reference to the relevant part of the sentence is to be read—

30

(a)   

in relation to a sentence in respect of which an order under

paragraph 3(1)(a) has been made, as a reference to the part specified

in the order, and

(b)   

in relation to a sentence in respect of which paragraph 3(3) applies,

as a reference to the notified minimum term as defined by paragraph

35

3(4).

      (4)  

In subsection (1B) (life prisoner serving two or more sentences), paragraph

(a) is to be read as if it referred to each of the sentences being one—

(a)   

in respect of which a minimum term order or an order under

paragraph 3(1)(a) has been made, or

40

(b)   

in respect of which paragraph 3(3) applies.

17         

In section 34(1) of the Crime (Sentences) Act 1997 (interpretation of Chapter

2 of that Act), in the definition of “life prisoner”, the reference to a

transferred prisoner as defined by section 245 of this Act includes a reference

to an existing prisoner who immediately before the commencement date is

45

a transferred life prisoner for the purposes of section 33 of that Act.

 

 

 
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