The Legal Aid Sentencing and Punishment of Offenders Act 2012 was passed by parliament in May 2012. Provisions within the Act were implemented on 3 December 2012. Provisions regarding the rehabilitation of offenders and out of court disposals do not commence until spring 2013. We have outlined the main changes below. More information can be found on the Ministry of Justice website.
The Act makes changes to the law on bail and remand, aimed at reducing the number of those who are unnecessarily remanded into custody. Under the new “no real prospect” test, people would be released on bail if they would be unlikely to receive a custodial sentence.
Changes to the youth remand framework were made following public concern that 17 year olds were being remanded like adults and not on the same principles as younger children. That practice has attracted criticism from the UN Committee on the Rights of the Child. Placement of children in secure accommodation was also seen to be discriminatory and unfair as it was predominantly determined by age and gender. Furthermore, many 15-17 year olds whose alleged offences are not the most serious and whose behaviour does not pose a risk to the public are remanded securely. A better approach to youth remand that maintains community-led supervision, support, education and training is needed.
Conservative estimates predict a 15% reduction in the use of custodial remand following these changes.
The key changes to the youth remand framework can be summarised as follows:
- 10 to 17 year olds are treated according to the same remand framework and conditions for custodial remand regardless of their age and gender;
- the court must first consider whether to remand a child on bail. Where the court refuses bail it should then consider whether to remand to local authority accommodation or whether, if the child is aged 12-17, the conditions for a remand to youth detention accommodation are met;
- 17 year olds who are remanded will be treated in the same way as younger children. They may therefore now be remanded to local authority accommodation;
- A 12-17 year old can be remanded to youth detention accommodation if they meet one of two sets of conditions; the first are based on the type of offending and the second are based on the history of absconding or offending together with whether there is a real prospect of a custodial sentence; and
- every child remanded to youth detention accommodation will now be treated as “looked after” by their designated local authority.
Additional changes for under-18s include:
- Changes to the out of court disposals framework, including introduction of a new youth caution
- Relaxation of the rules surrounding the Referral Order, allowing sentencers to use them more than once
- An increase to the maximum curfew which can be attached to the Youth Rehabilitation order (YRO) – from 12 to 16 hours per day for up to 12 months
- Increase in the maximum fine which can be given for breach of the YRO to £2500
- Introduction of a new mandatory minimum 4 month custodial sentence for 16 and 17 year olds found guilty of threatening with a knife
- Changes to DTO breach
- Abolition of the DPP (Detention for Public Protection) and introduction of a new extended sentence.
The abolition of IPP sentences came into force on 3 December 2012. However, the IPP sentence can still be given to someone convicted before 3 December 2012 but sentenced after 3 December 2012. Anyone convicted after 3 December cannot get an IPP.
The IPP sentence has been replaced with determinate and extended sentences. This does not affect people already sentenced.
There will be no sentence conversion or automatic release for people already on the sentence.
There is a new Extended Determinate Sentence. This sentence has a custody period and an extended licence period. People on this sentence must serve a minimum of two thirds of the custody period
- if the custodial part of the sentence is less than 10 years, release is automatic at the two thirds point
- if the custodial part of the sentence is 10 years or more, people will go to the Parole Board before being released.
The licence runs to the end of the extension period. So, if someone is released at the two thirds point, they are on licence for the rest of the custody period and the whole of the licence period.
The court must consider whether to give a life sentence to people if they have committed a second serious offence.
This life sentence can be given out to people who are 18 or over and who have:
- committed a new offence that justifies a ten year or more sentence and
- previously been sentenced to life or to 10 years or more on another offence.