Policy paper

Sentence lengths for serious offenders: Police, Crime, Sentencing and Courts Act 2022 factsheet

Updated 20 August 2022

The public want to know that custodial sentences for these sorts of crimes do what they say on the tin. They want to know that when serious and violent offenders go to prison, that’s where they’ll stay for as long as possible. These reforms will restore their faith that the system will keep dangerous criminals off our streets for longer.

Rt Hon Robert Buckland QC MP, Lord Chancellor and Secretary of State for Justice.

What are we going to do?

We are strengthening the law around custodial sentences so that the time spent in prison better reflect the severity of the crimes committed.

This will ensure that the public are protected and there is greater public confidence in the justice system.

How are we going to do it?

Whole Life Orders

Whole life orders are the most severe penalty available in our justice system. Someone sentenced to a whole life order will spend the rest of their life in prison without the possibility of release, unless there are exceptional compassionate grounds.

The Government will expand the existing criteria so that the premeditated murder of a child should carry, as its starting point, a whole life order as the punishment.

We will also give judges the discretion, in exceptional circumstances, to impose a whole life order on offenders aged 18 or over but under 21.

This will give courts the power to impose the most severe punishment available for those who commit the very worst crimes.

Discretionary Life Sentences

A discretionary life sentence is one which may be imposed in the case of many serious offences such as manslaughter, rape or grievous bodily harm with intent (unlike in the case of murder which carries a mandatory life sentence).

Where a discretionary life sentence is imposed by the court, it is required to set a minimum term (commonly known as a tariff). This is currently calculated with reference to what the notional determinate sentence would have been, had a life sentence not been given.

This Government will change the way in which the starting point for the minimum term is calculated, so that the courts will be required to take the starting point of at least two thirds of a notional determinate sentence instead of half of such a sentence as at present.

This will mean that the most serious offenders should serve longer in prison before they become eligible to be considered for release by the Parole Board, thereby ensuring that the punishment better reflects the severity of the crime.

Statutory minima for repeat offenders

This Government will change the threshold for passing a sentence below the minimum term for repeat offenders, including key serious offences, such as “third strike” domestic burglary and “two strike” knife possession, to ensure that courts depart from the minimum sentence only in exceptional circumstances, and to create greater consistency in the statutory provisions on minimum sentences.

Background

Whole Life Orders

We propose that the premeditated murder of a child should carry, as its starting point, a whole life order. The imposition of a whole life order would still be subject to judicial discretion but the expectation is that one would be imposed in these circumstances.

Currently, the circumstances where a whole life order is the appropriate starting point for the sentence are: (i) the murder of two or more persons involving substantial degree of premeditation or planning, abduction of the victim or sexual or sadistic conduct (ii) the murder of a child involving the abduction of a child or sexual or sadistic motivation (iii) the murder of a police or prison officer in the course of his or her duty (iv) the murder done for purpose of advancing a political, religious, racial or ideological cause; or (v) the murder by an offender previously convicted of murder.

Currently, judges are only able to apply whole life orders to offenders aged 21 and over. The Government will make it possible for someone aged 18, 19 or 20 to receive a whole life order. It will remain the case that they will not ordinarily be given to offenders in this age group. However, judges should be able, in rare and exceptional circumstances, to impose this most severe punishment if that is appropriate.

Discretionary Life Sentences

We are proposing to change the standard way in which the minimum term in a discretionary life sentence is calculated so that the starting point for the term is based on at least two-thirds of a notional determinate sentence, as opposed to half as at present. This will bring the calculation of such terms in line with the surrounding sentencing framework, including the change that will require serious offenders receiving standard determinate sentences to serve two-thirds of their sentence in custody.

For example, when awarding a life sentence, the judge will consider what the equivalent determinate sentence would be. If that ‘notional’ determinate sentence would be one of 20 years, the judge would take the halfway point of that to calculate the starting point of the minimum term for the life sentence and thereby give a term of 10 years. Under these proposals in this example the minimum term would be 13 years and 4 months – over three years longer. Judges will, however, retain their discretion to depart from this new starting point as they consider appropriate in the particular case before them.

Statutory minima for repeat offenders

There are a number of offences for which the law provides minimum custodial sentences, including repeat offences for certain key serious offences. These include (i) minimum sentence of 7 years for third class A drug trafficking offence, (ii) minimum sentence of 3 years for third domestic burglary, (iii) minimum sentence for second offence involving possession of an offensive weapon or bladed article and (iv) minimum sentence for threatening with offensive weapon or bladed article. However, minimum sentences are not mandatory, they are a mandatory consideration that the court must make before passing a sentence. The court may depart from them depending on the offenders’ circumstances and nature of the case.

Data indicates that a large proportion of offenders are not receiving the minimum term. While judicial discretion will be retained, we are amending the criteria for passing a sentence below the minimum term to ensure that courts depart from the minimum sentence only in exceptional circumstances. We are also making sure that in these cases, where a minimum sentence applies to a standard determinate sentence, the criteria by which the courts can depart from the minimum sentence is consistent.

Frequently Asked Questions

Will all premeditated murders of a child result in a whole life order?

As a whole life order is the most severe form of punishment that the courts can impose, where that sentence is the starting point, judges will be able to use discretion to determine whether that sentence is appropriate, in the same way they can when currently considering a Whole Life Order.

In what circumstances could a younger offender receive a whole life order?

Given the severe nature of the whole life order (WLO) punishment, judges will be able to choose to impose one for those aged 18-20 where they consider the seriousness of the offence to be exceptionally high — even by the standard of offences where a WLO would be the starting point for someone aged over 21.

Why are you making this change?

The judge presiding over the trial of Hashem Abedi, the brother of the Manchester Arena bomber was unable to give him a WLO due to the defendant’s age but stated that it would have been a ‘just sentence’ in that case. We believe it is right that judges should be able to exercise this power in exceptional circumstances such as this.

How will you ensure more repeat offenders serve the minimum term?

The legislation governing the majority of repeat offences provides that a court shall impose an appropriate custodial sentence “…except where the court is of the opinion that there are particular circumstances which relate to any of the offences or to the offender; and would make it unjust to do so in all the circumstances.”

We intend to amend the criteria for passing a sentence below the minimum term to ensure that courts depart from the minimum sentence only in exceptional circumstances.

A discount for pleading guilty will continue to be available. This reduction cannot take the sentence below 80% of the statutory minimum.

Will the measure for repeat offenders remove judicial discretion all together?

It is necessary for courts to retain the discretion to depart from the minimum sentence where the circumstances warrant it.

However, the Government wants to reduce the prospect that the court would depart from the minimum sentence for these serious crimes, to ensure it only occurs in exceptional cases.