Wednesday, 22 August 2012

On R v Wiles

A reply, from me, in a forum thread:

R v Wiles ruling - justice?

An ES under the CJA 2003, is not the same as an ES before it. As for the LASPO, I have some detailed documentation on it, but, will wait for the Act. Of course, as the ROA periods are to be 'reduced', that should be translated to the SOA requirements (for the reasons are identical) - do you think they will be? I will be asking the HO on Friday, for their thoughts, on the matter.

"Hi WM.

I'm at a disadvantage. How is an ES different pre and post CJA 2003?" 
"An extended sentence may be imposed, under section 227 of the Criminal Justice Act 2003 (as amended) on an offender aged 18 or over where the following criteria are met:

>the offender is guilty of a specified violent or sexual offence;
>the court assesses the offender as a significant risk to the public of committing further specified offences;
>a sentence of imprisonment for life is not available or justified; and
>the offender has a previous conviction for an offence listed in schedule 15A to the Criminal Justice Act 2003 or the current offence justifies an appropriate custodial term of at least four years."
"What is an extended sentence? 

An extended sentence is a determinate sentence comprising an appropriate custodial term plus an extended period of licence. The appropriate custodial term is the determinate period of imprisonment that would have been imposed if the offender was not dangerous, but it must be for a minimum period of 12 months. It is defined as "the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it": section 153(2) CJA 2003. Despite the requirement of the condition in section 227(2B) that the appropriate custodial term must be 4 years (i.e. 2 years actually in custody), it is possible in some circumstances that that an offender may receive an extended sentence with an appropriate custodial term of less than 4 years if he satisfies the previous conviction criteria in section 227(2A). The extension period is "of such length as the court considers necessary for the purpose of protecting members of the public from serious harm": section 227(2) CJA 2003. It may be up to 5 years for a specified violent offence and 8 years for a specified sexual offences: section 227(4) CJA 2003. The sum of the custodial term and the extended licence must not exceed the maximum penalty for the offence: section 227(5) CJA 2003."
The CJA 2003 introduced the concept of dangerousness, much more rigorously (and severely), to the ES (which caused me no end of fun, inside, at the time).

Prior to that [CDA 1998;, then the PCC(S)A 2000] the judge could extend the sentence (i.e. 'would not be adequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation' - which the PSR almost always did, based on no valid theoretical, research etc evidence, in those days - even less so, now), so as to 'assist the offender in their rehabilitation' etc (see the David Lee piece) ...
36 Bedford Row
This is why sentences are now 'lesser' [sic], in many cases, so that they get the 'care in the community', which would not happen, inside, because they would not be dangerous enough for 4 years or more. Of course, the populist quid pro quo is, usually, the court application, of an unwarranted and unjustified SOPO.
This is why ES's, prior to 2003, could never be meant to lead to indefinite notification.
Note, Wiles [] [4th March 2004], was after the CJA 2003 [20th November 2003], so that is why the outcome was as it was (quashing Graham [R v Graham (S) [2001] 1 Cr App R 111]), which was correct, before 2003).

You will not find much of this stated, officially (for it is contentious, legal, history), although the odd judge will whine about it.

Addendum (27/8/2012)

"This case is governed by the extended sentence regime of the PCC(S)A 2000, not the successor regime of the CJA 2003 ..."

[2011] EWHC 1610 (Admin)

R (on the application of Minter) v Chief Constable of Hampshire Constabulary and another


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