1 May 2012
657.Section 124 inserts new sections 226A and 226B in the 1991 Act. Those sections create new extended sentences for adults and persons under 18 respectively. The sentences may be imposed in respect of the sexual and violent offences listed in Schedule 15 to the 1991 Act (referred to as “specified offences”) where certain conditions are met. For both sentences, the court must consider that the offender presents a substantial risk of causing serious harm through re-offending.
658.For adults, two further conditions apply as alternatives. Either the court must consider that the current offence is serious enough to merit a determinate sentence of at least 4 years, or at the time the present offence was committed the offender must have previously been convicted of an offence listed in new Schedule 15B.
659.The second of these alternative conditions does not apply in respect of persons under 18.
660.Where these conditions are made out, the court may impose an extended period for which the offender is to be subject to a licence (an ‘extension period’) of up to 5 years for a violent offence and up to 8 years for a sexual offence. Schedule 15 lists violent and sexual offences separately. Specific provision is made about the release on licence of persons serving sentences under these new sections - see section 125 below.
661.Subsection (1) of new section 226A provides that the new section applies where (a) an offender aged 18 is convicted of a specified offence (whenever that offence was committed); (b) the court considers that the offender presents a significant risk to members of the public of serious harm through the commission by the offender of further specified offences; (c) the court is not obliged to impose a life sentence because of the seriousness of the offence by virtue of section 224A (life sentence for second listed offence) or 225(2) (life sentence for dangerous offenders); and (d) either condition A or condition B is met.
662.The ‘significant risk’ test in subsection (1)(b) is the same as the test for indeterminate sentences for public protection, which are abolished by section 123.
663.Subsection (2) of new section 226A sets out condition A, which is that when the current offence was committed the offender had a previous conviction for an offence listed in Schedule 15B (in relation to the scope of the offences listed there see paragraph 633 above).
664.Subsection (3) of new section 226A sets out condition B, which is that the current offence is serious enough that, if the court imposed an extended sentence under this section, it would specify an appropriate custodial term of at least 4 years.
665.Subsection (5) of new section 226A sets out the structure of the new extended sentence. It consists of the appropriate custodial term followed by an extension period, which is a further period during which the offender is to be subject to a licence.
666.Subsection (6) of new section 226A provides that the court must determine the custodial term in accordance with section 153(2) of the 1991 Act (provision for length of discretionary custodial sentences).
667.Subsection (7) of new section 226A stipulates that the extension period must be a period of such length as the court considers necessary to protect the public from serious harm caused by the offender’s commission of further offences listed in Schedule 15.
668.Subsection (8) of new section 226A sets out the maximum extension periods of 5 years for a violent offence and 8 years for a sexual offence.
669.Subsection (9) of new section 226A stipulates that the appropriate custodial term and the extension period must not together exceed the maximum term of imprisonment that may be imposed for the offence.
670.Subsection (10) of new section 226A follows from the fact that sentences under that section are to be available in respect of offences whenever committed. It allows the court to impose the new extended sentence on an adult offender who has committed an offence which was abolished before 4th April 2005, but which, if committed on the date the offender was convicted, would have constituted a specified offence. And subsection (11) makes section 226A work for offences committed before that date.
671.New section 226B makes similar provision to new section 226A, in respect of persons aged under 18. It contains no equivalent to condition A (see new section 226A(2)).