Clause 28

Part of Criminal Justice and Immigration Bill – in a Public Bill Committee at 7:00 pm on 20 November 2007.

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Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice 7:00, 20 November 2007

The purpose of amendments Nos. 79 to 82 is twofold. First, they make it clear that when the Attorney-General refers an unduly lenient life or  indeterminate sentence to the Court of Appeal, the so-called double jeopardy discount is abolished in respect of any aspect of the sentence that is varied by the Court of Appeal. Therefore, if the Court of Appeal were to increase not only the tariff but also another aspect of the sentence, the fact that the person is being sentenced twice would not be taken into account on either point.

Perhaps it would be of assistance if I were to explain briefly the background to clause 28. It is concerned with appeals against unduly lenient sentences. Hon. Members may be aware that part 4 of the Criminal Justice Act 1988 enables the Attorney-General to refer certain cases to the Court of Appeal if the sentencing in the Crown court appears to have been unduly lenient. The Court of Appeal can then review the sentencing in the case and, where appropriate, increase the sentence.

When the Court of Appeal decides to increase a sentence in such a case it will, when calculating the sentence, often allow a discount on so-called double jeopardy grounds to take account of the offender’s distress and anxiety at being re-sentenced and having to await the outcome of the referral.

There has already been legislation in the Criminal Justice Act 2003 to prevent the Court of Appeal from giving such a discount in mandatory life sentence murder cases. We now propose to extend the prohibition to apply to other very serious offences for which an unduly lenient sentence was passed. It seems strange to an ordinary member of the public that when a sentence is increased because it has been unduly lenient, the offender should then get a discount in the increased sentence on the grounds of their distress at being re-sentenced. That is the point of the clause and the amendments.

The prohibition would apply in all cases where the Crown court has imposed a discretionary life or indeterminate sentence. The clause does not contain anything new in principle, in the sense that this has already been done in respect of mandatory life sentences. That discount has already been abolished, so there is a clear precedent for the clause.

Under the clause as drafted, where the Court of Appeal decides to increase the minimum period ordered by the Crown court to be served under a life or indeterminate sentence, or, indeed, where it alters the sentence in another way, no discount may be given.

The amendments have a largely technical flavour. They have two purposes: primarily, they ensure that when the Attorney-General refers an unduly lenient life or indeterminate sentence to the Court of Appeal, the discount cannot apply to the Court’s review of any aspect of the sentence, not just the tariff. In doing so, they also remove a technical ambiguity in the clause as it appears in the Bill.

The clause as currently drafted followed the structure of existing section 36(3A); that is, it focused only on the Court of Appeal’s variation of the tariff or minimum term. That is because section 36(3A) currently applies only to mandatory life sentences, so the minimum term is the only aspect that would be under review by the Court of Appeal. However, now that the provision is to be extended to include discretionary life and indeterminate sentences, the Court of Appeal may in limited circumstances  want to vary another aspect of the sentence. For example, in some cases covered by the clause, the Court of Appeal might decide to increase an indeterminate sentence to a discretionary life sentence. The amendments will ensure that, as was always intended, the discount will not be available in relation to any aspect—not just the minimum term—of the sentence reviewed by the Court.

Government Amendment No. 83 applies to provisions for the unduly lenient sentencing appeals scheme in Northern Ireland, and we will be tabling further amendments in due course to fully extend provisions in clause 28 to Northern Ireland, as the Northern Ireland Office has asked us to do. I commend the amendments and the clause to the Committee.