Criminal Justice Act 2003
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The Criminal Justice Act 2003 (c. 44) is an Act of the
Parliament of the United Kingdom The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom, the Crown Dependencies and the British Overseas Territories. It meets at the Palace of Westminster, London. It alone possesses legislative suprema ...
. It is a wide-ranging measure introduced to modernise many areas of the
criminal justice system Criminal justice is the delivery of justice to those who have been accused of committing crimes. The criminal justice system is a series of government agencies and institutions. Goals include the rehabilitation of offenders, preventing other ...
in
England and Wales England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
and, to a lesser extent, in
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and
Northern Ireland Northern Ireland ( ga, Tuaisceart Éireann ; sco, label= Ulster-Scots, Norlin Airlann) is a part of the United Kingdom, situated in the north-east of the island of Ireland, that is variously described as a country, province or region. Nort ...
. Large portions of the act were repealed and replaced by the
Sentencing Act 2020 In law, a sentence is the punishment for a crime ordered by a trial court after conviction in a criminal procedure, normally at the conclusion of a trial. A sentence may consist of imprisonment, a fine, or other sanctions. Sentences for mul ...
.Sentencing Act 2020
s. 413 & sch. 28
It amends the law relating to
police The police are a constituted body of persons empowered by a state, with the aim to enforce the law, to ensure the safety, health and possessions of citizens, and to prevent crime and civil disorder. Their lawful powers include arrest and t ...
powers,
bail Bail is a set of pre-trial restrictions that are imposed on a suspect to ensure that they will not hamper the judicial process. Bail is the conditional release of a defendant with the promise to appear in court when required. In some countries ...
,
disclosure Disclosure may refer to: Arts and media * ''Disclosure'' (The Gathering album), 2012 *Disclosure (band), a UK-based garage/electronic duo * ''Disclosure'' (novel), 1994 novel written by Michael Crichton ** ''Disclosure'' (1994 film), an American ...
, allocation of
criminal offence In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Can ...
s,
prosecution A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the civil law inquisitorial system. The prosecution is the legal party responsible for presenting the case in a criminal trial ...
appeals, ''autrefois acquit'' ("double jeopardy"),
hearsay Hearsay evidence, in a legal forum, is testimony from an under-oath witness who is reciting an out-of-court statement, the content of which is being offered to prove the truth of the matter asserted. In most courts, hearsay evidence is inadmis ...
, propensity evidence,
bad character evidence The Criminal Justice Act 2003 applicable in England and Wales, and to a lesser extent Scotland and Northern Ireland, implemented fundamental changes to the admissibility of evidence relating to character, in respect to defendants and others. Th ...
,
sentencing In law, a sentence is the punishment for a crime ordered by a trial court after conviction in a criminal procedure, normally at the conclusion of a trial. A sentence may consist of imprisonment, a fine, or other sanctions. Sentences for mult ...
and
release on licence Release on licence in England and Wales can refer to * Release from prison on temporary licence, followed by return to prison. * Release from prison on parole Parole (also known as provisional release or supervised release) is a form of earl ...
. It permits offences to be
tried In law, a trial is a coming together of parties to a dispute, to present information (in the form of evidence) in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court. The tribunal, ...
by a judge sitting alone without a
jury A jury is a sworn body of people (jurors) convened to hear evidence and render an impartiality, impartial verdict (a Question of fact, finding of fact on a question) officially submitted to them by a court, or to set a sentence (law), penalty o ...
in cases where there is a danger of jury-tampering. It also expands the circumstances in which defendants can be tried twice for the same offence (double jeopardy), when "new and compelling evidence" is introduced.


Origins

The Act had its genesis in several reports and consultations: * Home Secretary
David Blunkett David Blunkett, Baron Blunkett, (born 6 June 1947) is a British Labour Party politician who has been a Member of the House of Lords since 2015, and previously served as the Member of Parliament (MP) for Sheffield Brightside and Hillsborough ...
, Lord Chancellor Irvine of Lairg and Attorney-General Lord Goldsmith's ''Justice for All - A White Paper on the Criminal Justice System'', published 17 July 2002cps.gov.uk: "Justice for All - A White Paper on the Criminal Justice System" (CM 5563)
, also available fro
The Stationery Office
* Lord Justice Auld's ''Review of the Criminal Courts of England and Wales'', published on 5 September 2001 * Deputy Under Secretary of State John Halliday's ''Making Punishment Work: report of a review of the sentencing framework of England and Wales'', published on 16 May 2000 * Mr Justice Carnwath's Law Commission report: ''Evidence of Bad Character of Criminal Proceedings'', published on 9 October 2001 * Mrs Justice Arden's Law Commission report: ''Evidence in Criminal Proceedings: Hearsay and Related Topics'', published on 19 June 1997 * Mr Justice Carnwath's Law Commission report: ''Double Jeopardy and Prosecution Appeals'', published on 6 March 2001 Other recommendations of the Criminal Courts Review relating to court procedures were implemented in the
Courts Act 2003 The Courts Act 2003 (c.39) is an Act of the Parliament of the United Kingdom implementing many of the recommendations in Sir Robin Auld's (a Court of Appeal judgeReview of the Criminal Courtsin England and Wales (also known as the "Auld Review" ...
. The intention of the Act was to introduce reforms in two main areas: improved case management and a reduction in scope for
abuse of the system Gaming the system (also rigging, abusing, cheating, milking, playing, working, or breaking the system, or gaming or bending the rules) can be defined as using the rules and procedures meant to protect a system to, instead, manipulate the system ...
.


Reforms to court and police procedure


Stop and search powers

Police "stop and search" powers are increased to include cases of suspected
criminal damage Property damage (or cf. criminal damage in England and Wales) is damage or destruction of real or tangible personal property, caused by negligence, willful destruction, or act of nature. It is similar to vandalism and arson (destroying proper ...
in, for example, the carrying of spray paint by aspirant graffiti artists. People who accompany constables on a search of premises may now take an active part in the search, as long as they remain accompanied at all times. This is particularly useful in cases where computer or financial evidence may need to be sifted at the scene, for which outside expertise is required.


Bail

The right of a prisoner to make an application to the High Court is abolished. Previously an application could be made to the Crown Court and the High Court as of right. The right to make a bail application by way of
judicial review Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompat ...
remains, although only if its more stringent tests applicable are satisfied. The Crown Court is now effectively the final arbiter of bail in criminal cases. Prosecution appeals against decisions of
magistrates' court A magistrates' court is a lower court where, in several jurisdictions, all criminal proceedings start. Also some civil matters may be dealt with here, such as family proceedings. Courts * Magistrates' court (England and Wales) * Magistrate's Cour ...
s to grant bail are extended to all imprisonable criminal offences.


Conditional cautions

The police may now, as well as issuing the normal cautions (which are unconditional), issue conditional cautions. The recipient of any kind of caution must admit his guilt of the offence for which the caution is imposed. Conditional cautions must be issued in accordance with a code of practice, issued by the Home Secretary. They will impose conditions upon the offender. If those conditions are breached the offender may then be prosecuted for the offence. The
Criminal Justice and Immigration Act 2008 The Criminal Justice and Immigration Act 2008 (c 4) is an Act of the Parliament of the United Kingdom which makes significant changes in many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland and Nor ...
extends the adult conditional caution scheme to young offenders.


Disclosure

The Act makes amendments to the
Criminal Procedure and Investigations Act 1996 The Criminal Procedure and Investigations Act 1996 or CPIA Abbreviation used in Ministry of JusticeCriminal Procedure and Investigations Act 1996 (section 23(1)) Code of Practice published March 2015, accessed 29 October 2022 is a piece of sta ...
legislation.gov.uk: "Criminal Procedure and Investigations Act 1996", c.25
/ref> relating to prosecution and defence disclosure. The old system was that the prosecution would provide initial disclosure to the defence (known as "primary disclosure"), the defence would provide a "defence statement" and the prosecution would provide "secondary disclosure" in response to that defence statement. Now the prosecution are under a continuous duty to disclose evidence, though the defence statement would impose a revised and stricter (depending on the contents and detail of the defence statement) test. The test for disclosure — "evidence which undermines the prosecution case or assists the defence case" — remains, though the prosecutor's own opinion of whether unused evidence meets those criteria is replaced by an objective test. However, the defence still cannot force the prosecutor to disclose such evidence until a defence statement is produced, so this change means little in practice. Reforms are made to the extent to which the defence must disclose their case in order to trigger both the revised duty to disclose and the right to a "section 8" application to the court to force the prosecution to disclose an item of evidence. A defence statement must now state each point at which issue is taken with the prosecution and why, any particular defence or points of law (such as evidential admissibility or abuse of process) upon which he or she would rely. The defendant must also give a list of defence witnesses, along with their names and addresses. The police may then interview those witnesses, according to a code of practice issued by the Home Secretary. The Explanatory Notes make it clear the police interviewing of potential defence witnesses is one of the intents of the Act. The details of any defence expert witness instructed must also be given to the prosecution, whether or not they are then used in the case. However, no part of the Act explicitly amends the law on legal privilege, so the contents of any correspondence or
expert report An expert report is a study written by one or more authorities that states findings and offers opinions. In law, expert reports are generated by expert witnesses offering their opinions on points of controversy in a legal case and are typically sp ...
would remain confidential to the same extent as before. Co-defendants must now also disclose their defence statements to each other as well as to the prosecution. The duty to serve defence statements remains compulsory in the Crown Court and voluntary in magistrates' courts.


Allocation and sending of offences

The mode of trial provisions are amended to allow the court to be made aware of the defendant's previous convictions at the mode of trial stage (that is, when a magistrates' court decides whether certain offences are to be tried summarily before them or before a judge and jury at the Crown Court). The right to commit to the Crown Court for sentence (when a magistrates' court regards its own powers as insufficient) is abolished for cases when it has previously accepted jurisdiction. These provisions amend the previous position when a defendant whose bad prior record means that he is tried summarily and then sent elsewhere for sentence; the same type of court deals with both trial and sentence in ordinary cases. The provisions were introduced under section 41 and section 42 of Part 6 of the act.


Prosecution appeals against case termination and evidence exclusion

The prosecution are given, for the first time, the right to appeal decisions by judges in the Crown Court which either terminate the case or exclude evidence. The prosecution has historically had the right to appeal decisions in the magistrates' courts on grounds of error of law or unreasonableness, and the right under the
Criminal Justice Act 1988 The Criminal Justice Act 1988 (c 33) is an Act of the Parliament of the United Kingdom. Title The title of this Act is: Unduly lenient sentences In England and Wales, the Act granted the Attorney General the power to refer sentences for ...
to appeal an "
unduly lenient sentence The Criminal Justice Act 1988 (c 33) is an Act of the Parliament of the United Kingdom. Title The title of this Act is: Unduly lenient sentences In England and Wales, the Act granted the Attorney General the power to refer sentences for c ...
". A "terminating ruling" is one which stops the case, or in the prosecution's view, so damages the prosecution case that the effect would be the same. Adverse evidentiary rulings on prosecution evidence can be appealed for certain serious offences before the start of the defence case. These appeals are "interlocutory", in that they occur during the middle of the trial and stops the trial pending the outcome of the appeal. They differ in this respect from a defendant's appeal which can only be heard after conviction.


Jury service

The Act expanded substantially the number of people eligible for jury service, firstly by removing the various former grounds of ineligibility, and secondly by reducing the scope for people to avoid service when called up. Only members of the Armed Forces whose commanding officers certify that their absence would be prejudicial to the efficiency of the Service can be excused jury duty. This has been controversial, as people now eligible for jury service (who were previously ineligible) include judges, lawyers and police officers. A Crown Court judge commented: "I don't know how this legislation is going to work intelligently."


Trials without a jury

The Act introduced measures to permit trial without a jury in the specific cases of complex fraud (s.43) and
jury tampering Jury tampering is the crime of unduly attempting to influence the composition and/or decisions of a jury during the course of a trial. The means by which this crime could be perpetrated can include attempting to discredit potential jurors to ensur ...
(s.44), though these provisions did not come into force on the passage of the Act.


Complex fraud

Section 43 of the Act sought to allow cases of serious or complex fraud to be tried without a jury if a judge was satisfied that:
the complexity of the trial or the length of the trial (or both) is likely to make the trial so burdensome to the members of a jury hearing the trial that the interests of justice require that serious consideration should be given to the question of whether the trial should be conducted without a jury.
However the
Attorney General In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general. In some jurisdictions, attorneys general also have exec ...
, Lord Goldsmith, subsequently sought to repeal the section and to replace it with new provisions under the
Fraud (Trials Without a Jury) Bill References External links
2007 in British law English criminal law Proposed laws of the United Kingdom Corruption in the United Kingdom Fraud in the United Kingdom 2007 in British politics Juries in the United Kingdom ...
. In the event, that Bill was defeated and plans to introduce trials without a jury in serious fraud cases were dropped. Section 43 of the Act was repealed on 1 May 2012 by section 113 of the
Protection of Freedoms Act 2012 The Protection of Freedoms Act 2012 is an Act of the Parliament of the United Kingdom. As the Protection of Freedoms Bill, it was introduced in February 2011, by the Home Secretary, Theresa May. The bill was sponsored by the Home Office. On Tuesd ...
.


Jury tampering

A case where a judge was satisfied that there was "evidence of a real and present danger that jury tampering would take place", and "notwithstanding any steps (including the provision of police protection) which might reasonably be taken to prevent jury tampering, the likelihood that it would take place would be so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury" may also be conducted without a jury. This provision came into force on 24 July 2007. On 18 June 2009, the Court of Appeal in
England and Wales England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
made a landmark ruling under the terms of the Act that resulted in the
Lord Chief Justice Lord is an appellation for a person or deity who has authority, control, or power over others, acting as a master, chief, or ruler. The appellation can also denote certain persons who hold a title of the peerage in the United Kingdom, or are ...
,
Lord Judge Igor Judge, Baron Judge, (born 19 May 1941) is an English former judge who served as the Lord Chief Justice of England and Wales, the head of the judiciary, from 2008 to 2013. He was previously President of the Queen's Bench Division, at the ...
, allowing the first-ever
Crown Court The Crown Court is the court of first instance of England and Wales responsible for hearing all Indictable offence, indictable offences, some Hybrid offence, either way offences and appeals lied to it by the Magistrates' court, magistrates' court ...
trial to be held without a
jury A jury is a sworn body of people (jurors) convened to hear evidence and render an impartiality, impartial verdict (a Question of fact, finding of fact on a question) officially submitted to them by a court, or to set a sentence (law), penalty o ...
. The case in question involved four men accused of an
armed robbery Robbery is the crime of taking or attempting to take anything of value by force, threat of force, or by use of fear. According to common law, robbery is defined as taking the property of another, with the intent to permanently deprive the perso ...
at
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in February 2004. It was the fourth time the case had been tried, but this time in front of only a single
judge A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility an ...
. The trial opened on 12 January 2010. The four accused were convicted, and on 31 March 2010 they received sentences ranging from 15 years to life. It was the first juryless criminal trial held in England for over 400 years.


Retrial for serious offences (the "double jeopardy" rule)

The Act creates an exception to the
double jeopardy In jurisprudence, double jeopardy is a procedural defence (primarily in common law jurisdictions) that prevents an accused person from being tried again on the same (or similar) charges following an acquittal or conviction and in rare case ...
rule, by providing that an acquitted defendant may be tried a second time for a serious offence. In November 2000 both the Home Secretary
Jack Straw John Whitaker Straw (born 3 August 1946) is a British politician who served in the Cabinet from 1997 to 2010 under the Labour governments of Tony Blair and Gordon Brown. He held two of the traditional Great Offices of State, as Home Secretary ...
and the Leader of the Opposition
William Hague William is a male given name of Germanic origin.Hanks, Hardcastle and Hodges, ''Oxford Dictionary of First Names'', Oxford University Press, 2nd edition, , p. 276. It became very popular in the English language after the Norman conquest of Engl ...
favoured this measure. The prosecutor must have the permission of the Director of Public Prosecutions prior to making the application for a second trial. Authority to give permission may not be exercised generally by Crown Prosecutors (typically employed lawyers of the Crown Prosecution Service), but can be delegated. There is a requirement for "new and compelling evidence", not adduced during the original trial, to be found. A "public interest" test must also be satisfied, which includes an assessment of the prospect of a fair trial. The application is made to the Court of Appeal, which is the sole authority for quashing an acquittal and ordering a retrial. The offence to be re-tried must be among a list of offences in Schedule 5 of the Act, all of which involve maximum sentences of life imprisonment. The ''Justice for All'' report of Blunkett, Lairg and Goldsmith prefaced the legislation with this statement on double jeopardy at paragraph 4.63:
The double jeopardy rule means that a person cannot be tried more than once for the same offence. It is an important safeguard to acquitted defendants, but there is an important general public interest in ensuring that those who have committed serious crimes are convicted of them. The
Stephen Lawrence Stephen or Steven is a common English first name. It is particularly significant to Christians, as it belonged to Saint Stephen ( grc-gre, Στέφανος ), an early disciple and deacon who, according to the Book of Acts, was stoned to death; ...
Inquiry Report recognised that the rule is capable of causing grave injustice to victims and the community in certain cases where compelling fresh evidence has come to light after an acquittal. It called for a change in the law to be considered, and we have accepted that such a change is appropriate. The
European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by t ...
(Article 4(2) of Protocol 7) explicitly recognises the importance of being able to re-open cases where new evidence comes to light.
The ''Justice for All'' report stated in paragraph 4.66 that the double jeopardy power was to be retrospective. That is, it was to apply to acquittals which took place before the law was changed, as well as those that happened afterwards. This Act was not the first legislation to affect the double jeopardy rule: the Criminal Procedure and Investigations Act 1996 provided that an acquittal proved beyond reasonable doubt to have been procured through violence or intimidation of a juror or witness could be quashed by the High Court. The first person to be re-tried under the Criminal Justice Act 2003 for an offence of which he had previously been acquitted was Billy Dunlop. He was acquitted of murdering his former girlfriend Julie Hogg in 1989. The application was brought by the Crown with the consent of the Director of Public Prosecutions, given in writing on 10 November 2005 and heard by the
Lord Chief Justice of England and Wales Lord is an appellation for a person or deity who has authority, control, or power over others, acting as a master, chief, or ruler. The appellation can also denote certain persons who hold a title of the peerage in the United Kingdom, or are ...
on 16 June 2006, who granted it. Dunlop was retried and convicted on 6 October 2006. He was sentenced to a life term, with a minimum tariff of 17 years.


Criminal evidence reform


Bad character

The 2003 Act extensively changed the law regarding the admissibility into evidence of a defendant's convictions for previous offences, and his other misconduct, broadening the circumstances in which the prosecution could introduce such matters. It also imposed statutory restrictions, for the first time, on the ability of defence lawyers to cross-examine prosecution witnesses about their own criminal records. Bad character evidence is defined under section 98 as evidence of, or a disposition towards, misconduct on his part, other than evidence which - (a) has to do with the alleged facts of the offence with which the defendant is charged, or (b) is evidence of misconduct in connection with the investigation or prosecution of that offence. Evidence of the defendant’s bad character includes not only previous convictions but also previous misconduct other than misconduct relating to the offence(s) charged. This fundamental change in the law means that under section 101(1) of the Criminal Justice Act 2003 the prosecution is free to adduce evidence of the defendant’s bad character subject to it passing through any one of seven gateways, unless it would have such an adverse effect on the fairness of the trial that it should not be admitted. Subsection 1 provides: in criminal proceedings evidence of the defendant’s bad character is admissible if, but only if—


Exclusion of bad character evidence

The Act provides for the exclusion of bad character evidence where it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. This language mirrors that of PACE 1984 s.78, with one minor difference - the Criminal Justice Act provides that courts 'must' exclude potentially unfair evidence, whilst
PACE Pace or paces may refer to: Business *Pace (transit), a bus operator in the suburbs of Chicago, US * Pace Airlines, an American charter airline *Pace Foods, a maker of a popular brand of salsa sold in North America, owned by Campbell Soup Compan ...
states courts 'may' exclude potentially unfair evidence.


Hearsay

The Act made substantial reforms to the admissibility of hearsay evidence, building upon the reforms of the
Criminal Justice Act 1988 The Criminal Justice Act 1988 (c 33) is an Act of the Parliament of the United Kingdom. Title The title of this Act is: Unduly lenient sentences In England and Wales, the Act granted the Attorney General the power to refer sentences for ...
, which regulated use of business documents and absent witnesses. Various categories of the common law were preserved and the remainder abolished. A new power was incorporated to permit hearsay evidence if certain 'interests of justice' tests were met.


Sentencing reform

Part 12 of the Criminal Justice Act made substantial amendments to nearly every part of sentencing practice, containing 159 sections and referring to 24 schedules. The regime set out in the
Powers of Criminal Courts (Sentencing) Act 2000 The Powers of Criminal Courts (Sentencing) Act 2000 (c.6) is a consolidation Act of the Parliament of the United Kingdom that brings together parts of several other Acts dealing with the sentencing treatment of offenders and defaulters. It w ...
was almost wholly replaced, even though it had only been passed three years previously and was itself coming slowly into force. The Act sets out in statute the principles underlying sentencing: punishment, crime reduction, reform and rehabilitation, public protection and reparation. These were previously part of the common law. The Act also created the
Sentencing Guidelines Council The Sentencing Guidelines Council was a non-departmental public body of the United Kingdom government, created by s.167 of the Criminal Justice Act 2003. It gave authoritative guidance on sentencing to the courts of England and Wales. It was re ...
to give authoritative guidance.


Community sentences

The previous and varied types of community sentence (such as community punishment order, community rehabilitation order, drug treatment and testing order) have been replaced by a single "community order" with particular requirements, such as unpaid work, supervision, activity, curfew, exclusion, residence and others, alone or in combination with each other. The intent was to tailor sentences more closely to the offender.


Combined custody and community sentences

The previously deprecated "suspended sentence of imprisonment" returns, also allowing elements of a community order (''see above'') to be imposed at the same time. This ensures the offender knows what sentence of imprisonment is facing him or her if he or she fails to comply with the order or commits a further offence during its suspended period. Provision is made for sentences of intermittent custody, and custodial sentences followed by period of community work and supervision.


Dangerous offenders

The Act replaced the previous law on the
mandatory sentencing Mandatory sentencing requires that offenders serve a predefined term for certain crimes, commonly serious and violent offenses. Judges are bound by law; these sentences are produced through the legislature, not the judicial system. They are inst ...
of defendants convicted of violent or sexual crimes, introducing compulsory life sentences or minimum sentences for over 150 offences (subject to the defendant meeting certain criteria). The Act created a new kind of life sentence, called "
imprisonment for public protection In England and Wales, the imprisonment for public protection (IPP; ) sentence was a form of indeterminate sentence introduced by section 225 of the Criminal Justice Act 2003 (with effect from 2005) by the Home Secretary, David Blunkett, and abolis ...
" (or "detention for public protection" for those aged under 18), which may even be imposed for offences which would otherwise carry a maximum sentence of ten years. In response to unprecedented
prison overcrowding Prison overcrowding is a social phenomenon occurring when the demand for space in prisons in a jurisdiction exceeds the capacity for prisoners. The issues associated with prison overcrowding are not new, and have been brewing for many years. Dur ...
, Parliament passed sections 13 to 17 of the
Criminal Justice and Immigration Act 2008 The Criminal Justice and Immigration Act 2008 (c 4) is an Act of the Parliament of the United Kingdom which makes significant changes in many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland and Nor ...
(with effect from 14 July 2008), which imposed stricter criteria for the imposition of these sentences, and restored judicial discretion by providing that they were no longer compulsory when the criteria were met.


Life sentences for murder

The House of Lords ruled in ''
R v Secretary of State for the Home Department ex parte Anderson Anthony Anderson is a convicted British murderer. He is most notable for successfully challenging the Home Secretary's powers to set minimum terms for life sentence prisoners. On 25 November 2002, the Law Lords ruled in favour of Anderson's cla ...
'' that the Home Secretary was not permitted to set minimum terms for life sentences. The reasoning was on the basis that in order to have a fair trial under Article 6 of the
European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by t ...
a defendant should be sentenced by an independent tribunal (that is, a judge) and not a politician who will have extraneous and irrelevant concerns which may affect his or her judgment. The Home Secretary's (
David Blunkett David Blunkett, Baron Blunkett, (born 6 June 1947) is a British Labour Party politician who has been a Member of the House of Lords since 2015, and previously served as the Member of Parliament (MP) for Sheffield Brightside and Hillsborough ...
MP) response was outlined in a written response to a parliamentary question on 25 November 2002. Mr Blunkett said
The case of Anderson deals with the Home Secretary's power to set the tariff, or minimum period a convicted murderer must remain in custody until he becomes eligible for release. This power has ensured ministerial accountability to Parliament within the criminal justice system for the punishment imposed for the most heinous and serious of crimes. ... This judgment will affect only the issue of who sets the tariff in each case. As is proper in a democracy, Parliament will continue to retain the paramount role of setting a clear framework within which the minimum period to be served will be established. I am determined that there should continue to be accountability to Parliament for these most critical decisions. ... I intend to legislate this Session to establish a clear set of principles within which the courts will fix tariffs in the future. ...in setting a tariff, the judge will be required, in open court, to give reasons if the term being imposed departs from those principles.
The new law applies to murders committed on or after 18 December 2003. Schedule 21 of the Act sets out "minimum terms" (a term further defined in section 269(2)) for those convicted of murder. The terms are in the form of standard "starting points" based on age and other factors, from which any increase or decrease is then made by the sentencing judge according to the circumstances of the crime and the offender. "Aggravating and mitigating factors" are also set out, which can cause the sentencing judge to adjust the sentence from the starting point. Judges are free to decide a minimum term of any length or a "whole life" sentence but must state their reasons for deviations from the starting point.


Controversy


Passage through Parliament

The original
bill's Bill's is a British restaurant and bar chain, founded by Bill Collison in 2001 when he opened a small greengrocery in Lewes, East Sussex. As of January 2020, there are 78 branches in the UK, down from 81 in September 2018. With home deliverie ...
passage through
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did not meet with universal approval. The legal profession and civil liberties groups were opposed to several of the measures in the Bill, though most of them were contained within the final Act. John Wadham, the then Director of
Liberty Liberty is the ability to do as one pleases, or a right or immunity enjoyed by prescription or by grant (i.e. privilege). It is a synonym for the word freedom. In modern politics, liberty is understood as the state of being free within society fr ...
said The
Bar Council {{see also, Bar association A bar council ( ga, Comhairle an Bharra) or bar association, in a common law jurisdiction with a legal profession split between solicitors and barristers or advocates, is a professional body that regulates the profess ...
and Criminal Bar Association published a joint document setting out their concerns about a number of measures in the Bill. In this the disclosure provisions, the requirement of the defence to disclose details of any expert they instruct, whether or not they go on to use them was referred to as a "major scandal" by Professor
Michael Zander Michael Zander, KC, FBA, (born 16 November 1932 in Berlin) is a British legal scholar. He is Professor Emeritus of Law at the London School of Economics and Political Science, and the author of several books known to generations of lawyers an ...
QC. The disclosure provisions generally were described by the Bar Council as placing an "unnecessary burden on the defence which does nothing to improve the prospect of conviction of the guilty". Removal of jury trial was opposed on the ground that mere expediency (in cases of fraud) should never justify its removal, and that judge-alone acquittals of major City figures might cause "grave public disquiet". Jury-tampering might be protected against by better protection for jurors; there was also the danger that judges would hear secret evidence about intimidation or threats and then go on to try the defendant alone, which was again highly unsatisfactory. Re-trials for serious offences was opposed as a breach of a fundamental right, the Bar Council quoting Justice Hugo Black of the
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
in ''
Green v. United States Green is the color between cyan and yellow on the visible spectrum. It is evoked by light which has a dominant wavelength of roughly 495570 nm. In subtractive color systems, used in painting and color printing, it is created by a combina ...
'':
The underlying idea ... deeply ingrained in at least the Anglo-Saxon system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offence, thereby compelling him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity as well as enhancing the possibility that even though innocent he may be found guilty
In the event the measures came into law, though with strict qualifications. The measures to expand admissibility of bad character evidence were also opposed on the grounds of unfairness (the defendant's past bad character can more easily be adduced than a witness's) and of dangerous irrelevance. The measures reforming hearsay, which were more closely modelled on the Law Commission's report than the other reforms, attracted less adverse attention, though the Bar Council disputed some of its aspects. The maximum period a suspected terrorist could be detained without charge was increased from 7 to 14 days. This was later increased to 28 days by the
Terrorism Act 2006 The Terrorism Act 2006 is an Act of the Parliament of the United Kingdom that received royal assent on 30 March 2006, after being introduced on 12 October 2005. The Act creates new offences related to terrorism, and amends existing ones. Th ...
. The act was also criticised by the
Conservative Party The Conservative Party is a name used by many political parties around the world. These political parties are generally right-wing though their exact ideologies can range from center-right to far-right. Political parties called The Conservative P ...
for its lenient sentencing rules and handling of
parole Parole (also known as provisional release or supervised release) is a form of early release of a prison inmate where the prisoner agrees to abide by certain behavioral conditions, including checking-in with their designated parole officers, or ...
. Further fueling the controversy was the revelation that 53 prisoners who had been sentenced to
life imprisonment Life imprisonment is any sentence of imprisonment for a crime under which convicted people are to remain in prison for the rest of their natural lives or indefinitely until pardoned, paroled, or otherwise commuted to a fixed term. Crimes for ...
under the Crime (Sentences) Act 1997 had been freed on parole since 2000.


Victims of crime and their families

Gill Smith, whose 18-year-old daughter Louise was murdered in December 1995, praised David Blunkett for giving judges the power to set longer minimum terms. Her daughter's killer, David Frost, was convicted of murder and sentenced to life but with a minimum of 14 years, as he had confessed to the crime as well as expressing remorse in court. Mrs Smith felt that 14 years was a very short time, especially when one of the men who tried to steal a diamond from the Millennium Dome was sentenced to 18 years. She criticised the judiciary for implying that a diamond was worth more than her daughter's life. (However, a person sentenced to 18 years is eligible for parole after 9 years.) Denise Bulger, whose two-year-old son
James James is a common English language surname and given name: *James (name), the typically masculine first name James * James (surname), various people with the last name James James or James City may also refer to: People * King James (disambiguat ...
was murdered by two 10-year-old boys in February 1993, criticised the legislation for insufficient severity. She protested that whole life sentences should apply to children who kill as well.


Judges

The Court of Appeal and the High Court have frequently passed adverse comment on the poor drafting of many provisions of the Act, which have resulted in numerous appeals to ascertain what the Act means. In March 2006 Lord Justice Rose, sitting in the Court of Appeal, said:
Time and again during the last 14 months, this Court has striven to give sensible practical effect to provisions of the Criminal Justice Act 2003, a considerable number of which are, at best, obscure and, at worst, impenetrable.
In December 2005, sitting in the High Court, he said:
So, yet again, the courts are faced with a sample of the deeply confusing provisions of the Criminal Justice Act 2003, and the satellite statutory instruments to which it is giving stuttering birth. The most inviting course for this Court to follow, would be for its members, having shaken their heads in despair, to hold up their hands and say: "the Holy Grail of rational interpretation is impossible to find". But it is not for us to desert our judicial duty, however lamentably others have legislated. But, we find little comfort or assistance in the historic canons of construction for determining the will of Parliament which were fashioned in a more leisurely age and at a time when elegance and clarity of thought and language were to be found in legislation as a matter of course rather than exception.Crown Prosecution Service (Applicant) v. South East Surrey Youth Court (Respondent) and Milad Leon GHANBARI (Interested Party), 005EWHC 2929 (Admin); LTL 9/12/2005; (2006) 1 WLR 2543; (2006) 2
All ER The All England Law Reports (abbreviated in citations to All ER) are a long-running series of law reports covering cases from the court system in England and Wales. Established in 1936, the All England Law Reports are a commercially produced alt ...
444; (2006) 2 Cr App R (S) 26


Notes


External links

* * {{UK legislation United Kingdom Acts of Parliament 2003 English criminal law Criminal law of the United Kingdom