In the Media

Judges to be given get-out clause on mandatory prison sentences

PUBLISHED October 27, 2011

Ken Clarke proposes legislative amendments allowing judicial discretion for special circumstances Judges and magistrates are to be given a substantial get-out clause for the new US-style "two strikes and you're out" life sentence and the six-month minimum prison term for serious knife crime. The wording of the legislative amendments, which MPs will vote on next week, makes clear that while the courts are to be told they must impose the mandatory sentences, they won't have to if they think it would lead to an injustice. "The court must impose an appropriate custodial sentence unless the court is of the opinion that there are particular circumstances which relate to the offence or to the offender, and would make it unjust to do so in all the circumstances," read the amendments, in the name of Ken Clarke, the justice secretary. It was also confirmed that up to 400 teenage offenders a year could be given the mandatory four-month detention and training order for using a knife in a threatening manner. The Magistrates' Association immediately criticised the plan, saying mandatory sentences failed to take account of the rare but exceptional circumstances when such a custodial sentence was inappropriate. It also said that youths aged 16 and 17 should not be treated like adults, because they lacked the maturity of thought. The level of judicial discretion in the mandatory sentences is similar to that which the House of Lords insisted be included in Michael Howard's 1997 "three strikes and you're out" sentence for repeat burglars and drug dealers. Clarke told MPs on Tuesday that the amendment had hardly ever been used, as judges had always found a way to ensure the sentence fitted the circumstances of the crime. "This is a game that should not go on between parliament and the courts," he said. A Ministry of Justice spokeswoman confirmed that the wording was the same as the 1997 law: "It means that the court has to impose the sentence unless they can prove it would be unjust to do so." The more punitive sentencing package was tabled as the justice ministry published long-term prison projections that showed the current record 87,000 jail population could rise by a further 3,700 to 6,600 within six years. In the face of this, Clarke's hopes of using his legal aid, sentencing and punishment bill to stabilise the prison population look challenging in the short to medium term. He proposes to replace the much-criticised indeterminate sentence of imprisonment for public protection [IPP], under which 6,500 people are now imprisoned without a release date, with a new extended determinate or fixed-term sentence. This will have no impact on the prison population in the short and medium term, according to an official impact assessment, though it may slow the growth in demand for prison places by 2,500 after 2019. The Ministry of Justice says that about 20 cases a year will be affected by the new "two strikes and you're out" mandatory life sentence for very serious sexual or violent offenders. The offences will have to carry a sentence of at least 10 years each to trigger the mandatory life term.Clarke's proposals may also speed up the release of existing IPP prisoners, as they include a new release test in which the burden of proof will be reversed so that the parole board has to prove an inmate remains a danger to the public to refuse their release. The shadow justice secretary, Sadiq Khan, said: "It hasn't taken long for this government's sentencing plans to be shown up for what they really are ? an unnecessary risk with public safety. It is classic smoke and mirrors and the public will see through it." UK criminal justice Prisons and probation Ken Clarke Alan Travis © 2011 Guardian News and Media Limited or its affiliated companies. All rights reserved. | Use of this content is subject to our Terms & Conditions | More Feeds