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19 December 2011

Mandatory and minimum sentences – time to review their role in the criminal justice system?

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By Sangeeta Bedi

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A comprehensive review of the role of mandatory and minimum sentences within the criminal justice system is required in light of a report published this month by the Homicide Review Advisory Group and the Justice Secretary Kenneth Clarke’s recent announcement regarding new sentencing regimes.

The Homicide Review Advisory Group has, in a report entitled “Public Opinion and the Penalty for Murder”, concluded that mandatory life sentences for murder in England and Wales and the system for setting minimum term sentences for other offences do not allow sentences to match individual crimes.  The only offence for which a “life sentence” is fixed by law is murder.  However, minimum fixed term custodial sentences are also imposed in certain circumstances for offences involving drug trafficking, domestic burglary and the possession, purchase, acquisition, manufacture, transfer or sale of firearms.  Where a minimum fixed term custodial sentence applies, the court has discretion not to impose the minimum custodial sentence only if such a course can be justified on the basis that to apply the minimum sentence would be “unjust” (in the case of drug trafficking and domestic burglary) or if there are “exceptional circumstances” relating to the offence or the offender (in the case of firearms offences).

Establishing a requirement on the judiciary to impose mandatory or minimum sentences is inflexible and prevents the courts from undertaking a full and independent consideration of the appropriate sentence on a case-by-case basis taking into account relevant factors such as the personal circumstances of the offender, the facts of the offence, the likelihood of rehabilitation and the risk of reoffending.

The Homicide Review Advisory Group’s comments come shortly after the Justice Secretary announced plans in October to extend mandatory life and custodial sentences to further offences (including a mandatory custodial sentence for aggravated knife possession) as part of the government’s commitment to provide clarity on sentencing by getting rid of indeterminate sentences.

The Ministry of Justice has argued that the imposition of mandatory and minimum sentences is justified on the basis that serious crimes deserve serious sentences.  However, this argument does not take into consideration that every offence will differ in its facts and circumstances and that this will affect the gravity of the offence and the appropriate measures which society should take to respond to it.  The imposition of mandatory and minimum sentences represents a restriction on the discretion of the judiciary to arrive at an appropriate sentence in each individual case by considering all relevant matters and should be opposed.

Corker Binning is a law firm specialising in fraud, regulatory litigation and general criminal work of all types. Call now on 0207 353 6000 to see how we can help you or visit /services/crime.php

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