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New Schedule 2
'Determination of Minimum Term in Relation to Mandatory Life Sentence
- Interpretation
1 In this Schedule—
"child" means a person under 18 years;
"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 (Determination of minimum term in relation to mandatory life sentence);
"whole life order" means an order under subsection (4) of section (Determination of minimum term in relation to mandatory life sentence).
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 where the offence would be racially or religiously aggravated if the references in section 28(1) and (2) of the Crime and Disorder Act 1998 (c. 37) to a racial or religious group were a reference to a group of persons defined by reference to their sexual orientation.
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 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 subparagraph (1)(a) include—
(a) the murder of two or more persons, where each murder involves any 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 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—
(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 years.
(2) Cases that (if not falling within paragraph 4(1)) would normally fall within subparagraph (1)(a) include—
(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 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 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.
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 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,
(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 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—
(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,
(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.
11 Nothing in this Schedule restricts the application of—
(a) section 128(2) (previous convictions),
(b) section 128(3) (bail), or
(c) section 129 (guilty plea).'.—[Paul Goggins.]
New Schedule 3
'Mandatory Life Sentences: Transitional Cases
- Interpretation
1 In this Schedule—
"the commencement date" means the day on which section (Determination of minimum term in relation to mandatory life sentence) comes into force;
"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 a mandatory life sentence passed before the commencement date;
"mandatory life sentence" means a sentence of imprisonment for life or custody for life passed in England and Wales in circumstances where the sentence was fixed by law.
Existing prisoners notified by Secretary of State
2 Paragraph 3 applies in relation to any existing prisoner who 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—
(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 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
(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 paragraph 2(a), the early release provisions apply to the prisoner as soon as he has served the notified minimum term (or, if he 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.
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 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
(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 subparagraph (1) the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, the High Court must have regard to—
(a) the general principles set out in Schedule (Determination of minimum term in relation to mandatory life sentence), 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.
(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 has not before the commencement date been 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 (Determination of minimum term in relation to mandatory life sentence).
7 In considering under subsection (3) or (4) of section (Determination of minimum term in relation to mandatory life sentence) the seriousness of an 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 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 (Determination of minimum term in relation to mandatory life sentence) 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 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 (Determination of minimum term in relation to mandatory life sentence) 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).
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
(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 (Determination of minimum term in relation to mandatory life sentence) 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 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 (Determination of minimum term in relation to mandatory life sentence) 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).
Proceedings in High Court
11 (1) An application under paragraph 3 or a reference under paragraph 6 is to be 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 (Determination of minimum term in relation to mandatory life sentence) (2) to (5) and Schedule (Determination of minimum term in relation to mandatory life sentence) is to be read as a reference to the High Court.
Giving of reasons
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 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 (Determination of minimum term in relation to mandatory life sentence) on a reference under paragraph 6, subsection (2) of section (Duty to give reasons) does not apply.
Right of appeal
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 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 from High Court to Court of Appeal in a criminal cause or matter) do not apply in relation to a decision to which subparagraph (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 (limitation on appeal 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 (c. 19) (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 (Determination of minimum term in relation to mandatory life sentence) (2).
Modification of early release provisions
16 The early release provisions have effect in their application by virtue of paragraph 3(1)(a) or (3) to a person to whom paragraph 3 applies as if any reference to the relevant part of the sentence were a reference to the part specified in the order under paragraph 3(1)(a) or, as the case may be, to the notified minimum term as defined by paragraph 3(4).
Transferred life prisoners
17 In relation to an existing prisoner who immediately before the commencement date is a transferred life prisoner for the purposes of section 33 of the Crime (Sentences) Act 1997 (c. 43), this Schedule is to be read as if—
(a) any certificate under subsection (2) of that section were a notification falling within paragraph 2(a) of this Schedule, and
(b) references to any recommendation of the trial judge or the Lord Chief Justice were omitted.'.—[Paul Goggins.]
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