Criminal Justice and Immigration Act 2008

Criminal Justice and Immigration Act 2008

2008 CHAPTER 4

The Act

Commentary on Sections

Part 2: Sentencing

Section 16:  Extended sentences for certain violent or sexual offences: persons under 18

205. Section 16 amends sections 228 of the 2003 Act (extended sentence for certain violent or sexual offences: persons under 18)

206. Subsection (2) is a consequential amendment to reflect the fact that the courts will no longer have an obligation to impose public protection sentences.

207. Subsections (3) and (4) amend section 228. The amendments have the following effect:

• They give the court a power rather than a duty to impose an extended sentence

• They provide that this power may only be exercised where the immediate offence would attract an “appropriate custodial term” of at least 4 years.

208. Subsection (4) then inserts a new subsection (2B) which sets out the structure of the extended sentence: it consists of an “appropriate custodial term” followed by a further licence period. This simply reproduces the definition of extended sentence of detention which is currently in section 228(2).

209. Subsection (5) preserves the current position whereby the custodial period of the extended sentence must not exceed the maximum penalty for the offence. It also removes the current requirement for the custodial period of the extended sentence to be set at 12 months or more (as this is no longer required in the light of the other changes to section 228).

210. Subsection (6) gives the Secretary of State an order-making power to amend the custodial period of 4 years specified in new subsection (2A). This is because the intention is that an extended sentence should be imposed only if the offence warrants that the offender spend a minimum period of 2 years in custody. This currently means that a custodial period of at least 4 years should be imposed, as release on licence from an extended sentence occurs at the halfway point (under section 247 of the 2003 Act, as amended by section 25 of this Act). The proportion of sentence served prior to release on licence may be changed, however, by secondary legislation. If this were to happen, the figure of 4 years would need to be changed accordingly, to retain the 2 year threshold.