Mandatory and Minimum Custodial Sentences

Sections 110 & 111 Powers of Criminal Courts (Sentencing) Act 2000 and section 51A Firearms Act 1968 (as inserted by section 287 Criminal Justice Act 2003

Principle
Mandatory and Minimum Custodial Sentences - Guidance
Mandatory and Minimum Custodial Sentences - Procedure

Principle

Section 110 Power of Criminal Courts (Sentencing) Act 2000 - minimum custodial sentence of seven years for third class A drug trafficking offence

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This section came into force on 1 October 1997. It was originally enacted as section 3 Crime (Sentences) Act 1997.

The section requires that a Crown Court shall impose a sentence of at least 7 years for a third class A drug trafficking offence if the offender:

was 18 or over when he committed the offence;
committed the offence on or after 1 October 1997;
had previously been convicted of two other class A drug trafficking offences in England and Wales; and
one of those offences had been committed after conviction for the other.

The court has discretion not to impose the minimum custodial sentence of seven years if it is of the opinion that there are particular circumstances which relate to any of the offences or to the offender which would make it unjust to do so in all the circumstances. The particular circumstances must be stated in open court.

For the purposes of this section "drug trafficking offence" is as defined in section 1 (3) Drug Trafficking Act 1994.

Section 111 Powers of Criminal Courts (Sentencing) Act 2000 - minimum custodial sentence of three years for third domestic burglary

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This section came into force on 1 December 1999. It was originally enacted as section 4 Crime (Sentences) Act 1997

The Crown Court shall impose a sentence of at least three years for a third domestic burglary if the offender:

was 18 or over when he committed the offence;
committed the offence on or after 1 December 1999;
had previously been convicted of two other domestic burglary offences in England and Wales; one of those offences has been committed after conviction for the other; and
both of the previous domestic burglaries had been committed on or after 1 December 1999.

The court has a discretion not to impose the minimum custodial sentence of three years if it is of the opinion that there are particular circumstances which relate to any of the offences or to the offender which would make it unjust to do so in all the circumstances. The particular circumstances must be stated in open court.

Section 111(5) of the Act defines domestic burglary as one committed in respect of a "building or part of a building which is a dwelling". The case law about the definition of a building is in Archbold at 21-115. There is very little case law on the question of what is a dwelling, and it will usually turn on the facts of an individual case.

The decisions in R- -v- Brewster 1998 1 CAR 220 and R -v- Rodmell 24 November 1994 (unreported - CCA ref 94/6020/W5) give a wide interpretation to the term "domestic burglary" and it is therefore for the tribunal of fact, in each case, to determine whether a burglary qualifies as a "domestic burglary".

For example, in R v Massey [2001] 2 Cr.App.R.(S) 80 - where the accused committed burglary by breaking in to a guest room in a hotel (where the guest was in residence but out of the room at the time) and stole property, the court observed that on these facts, in its view "burglary of a hotel bedroom was akin to burglary of domestic premises".

Section 113 Powers of Criminal Courts (Sentencing) Act 2000 - certificate of conviction

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Where a court issues a certificate of conviction under section 113 of the Act the certificate shall be evidence for the purposes of the relevant section that the accused was convicted of such an offence on that date.

Under section 113 of the Act, for offences of drug trafficking or domestic burglary, a court may state and certify that the offence was committed on a particular day or over, or at some time during a particular period. This additional information over and above that certified under section 113 of the Act may at some future date become relevant in establishing whether a conviction qualifies under sections 110 or 111 of the Act.

Section 51A Firearms Act 1968 (as inserted by section 287 Criminal Justice Act 2003

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Section 287 of the Criminal Justice Act 2003 inserted a new section 51A into the Firearms Act 1968 that introduced a mandatory minimum sentence for the offence of possession, purchase, acquisition, manufacture, transfer or sale of certain prohibited weapons on or after 22nd January 2004.

Section 51A applies to offences committed on or after 22 January 2004 (where the offender was aged 16, 17 or over 21 years of age when the offence was committed), or to offences committed on or after 28 May 2007 where the offender was aged 16 or over AND is aged 18, 19 or 20 at the date of conviction.

The section requires that a Crown Court shall impose a minimum sentence of

5 years imprisonment if the offender is aged 18 or over when convicted, or,
3 years detention under s. 91 PCC(S)A 2000 (long term detention) if the offender was under 18 but over 16 when the offence was committed.

The reason for the different commencement dates is explained in full, together with further guidance on firearms offences, and the operation of the minimum mandatory term in such cases in:

<Specific Subject Guidance>Weapons>Firearms> elsewhere in this guidance.

The qualifying offences are:

Sec 5 (1) (a) any firearm which is so designed or adapted so that two or more missiles can be successively discharged without repeated pressure on the trigger e.g. machine guns, burst fire weapons;

Sec 5 (1) (ab) any self-loading or pump-action rifled gun other than one which is chambered for .22 rimfire e.g. short barrelled rifles or carbines;

Sec 5 (1) (aba) any firearm which either has a barrel less than 30cm in length or is less than 60cm in length overall, other than an air weapon, a muzzle-loading gun or a firearm designed as signalling apparatus e.g. handguns, revolvers;

Sec 5 (1) (ac) any self-loading or pump-action smooth-bore gun which is not an air weapon or chambered for .22 rim-fire cartridges and either has a barrel less than 24" in length or is less than 40" in length overall e.g. self loading or pump action shotguns;

Sec 5 (1) (ad) any smooth-bore revolver gun other than one that is chambered for 9mm rim-fire cartridges or a muzzle-loading gun e.g. Dragon or Striker Gun;

Sec 5 (1) (ae) any rocket launcher, or any mortar, for projecting a stabilised missile, other than a launcher or mortar designed for line-throwing or pyrotechnic purposes or as signalling apparatus

Sec 5(1)(af) any air rifle, air gun or air pistol which uses, or is designed or adapted for use with, a self- contained gas cartridge system e.g. Brococks

Sec 5 (1) (c) any cartridge with a bullet designed to explode on or immediately before impact, any ammunition containing or designed or adapted to contain any such noxious thing as mentioned above, and, if capable of being used with a firearm of any description, any grenade, bomb (or other like missile), or rocket or shell designed to explode as aforesaid e.g. ammunition containing explosive bullets or CS;

Sec 5 (1) (A) (a) any firearm which is disguised as another object e.g.pengun, key fob gun, .

Section 29 of the Violent Crime Reduction Act 2006 extends the mandatory minimum sentence to the offence of using another person to mind a dangerous weapon, where the weapon is a prohibited weapon.

Section 30 of the Violent Crime Reduction Act 2006 extends the mandatory minimum sentence to the following offences committed on or after 6th April 2007, where the firearm used is a prohibited weapon listed above:

Section 16 Firearms Act 1968 (possession of firearm with intent to injure)
Section 16A Firearms Act 1968 (possession of firearm with intent to cause fear of violence)
Section 17 Firearms Act 1968 (use of firearm to resist arrest)
Section 18 Firearms Act 1968 (carrying firearm with criminal intent)
Section 19 18 Firearms Act 1968 (carrying a firearm in a public place)
Section 20 (1) 18 Firearms Act 1968 (trespassing in a building with a firearm
Section 28 Violent Crime Reduction Act 2006 (using another person to mind a dangerous weapon)

NB. The minimum sentence provisions for firearms offences apply on first conviction, unlike the provisions of s110 and 111 PCC(S)A, which apply only to repeat offenders.

Section 109 Powers of Criminal Courts (Sentencing) Act 2000 - mandatory life sentence for second serious offence (now repealed)

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Section 109 PCCSA was repealed with effect from 4 April 2005 (see below) but still applies if the offences were committed before 4 April 2005. The provisions have been replaced by the "dangerous offender " provisions in Chapter 5 of the Criminal Justice Act 2003 <Sentencing Issues>Dangerous Offenders - elsewhere in this guidance>

Section 109 PCC(S)A provides for an automatic life sentence where a person over 18 years of age is convicted of a second serious offence committed after 30^th September 1997.

It came in to force on 1 October 1997. It was originally enacted as section 2 Crimes (Sentence)(Act 1997) and the 1997 Act was consolidated into the Powers of the Criminal Courts (Sentencing) Act 2000. It was repealed with effect from 4 April 2005, but continues to apply to offences committed before that date.

The court has a discretion not to impose the mandatory life sentence if of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so. The exceptional circumstances must be stated in open court (see R v Frost,Times LR 5.1.01; R v Offen, [2001] 1 WLR 253 CA).

"Serious offences" are defined in section 109 (5) - (7)

Mandatory and Minimum Custodial Sentences - Guidance

Charging Practice

The mandatory and minimum sentence provisions underline the need for care in selecting the appropriate charge and strict application of the Code for Crown Prosecutors.

Section 110 of the Act

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Within the definition of "drug trafficking offence" the most common offences are the production, supply and possession with intent to supply of a controlled drug. The definition also includes conspiracy, attempt, and incitement to commit drug trafficking offences.

Section 111 of the Act

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Sections 9(1)(a) and (b) and section 10 of The Theft Act 1968 apply for the purposes of section 111 of the Act

Offences of conspiracy to burgle a dwelling house, incitement or an attempt to do so do not qualify under section 111 of the Act

Section 113 of the Act

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Where, in general, an accused is convicted of an offence that would fall within sections 110 and 111 of the Act, the court should be reminded of the provisions of section 113 of the Act.

Indictment

It has been agreed with the Home Office and ACPO that the CPS will include in the indictment the word "dwelling" in order to identify for the purposes of the court and police that a conviction qualifies under section 111 of the Act. It is important that prosecutors and caseworkers ensure that the word "dwelling" is included in the 'Particulars of Offence' when appropriate.

Mandatory and Minimum Custodial Sentences - Procedure

Police

The police should highlight convictions which may qualify under the Act when submitting the case file to the CPS.

Magistrates' Court

Section 51A Firearms Act 1968; Venue for Trial

The offences that attract the minimum mandatory sentence are triable only on indictment. (section 288 Criminal Justice Act 2003, which also amends Schedule 6 to the Firearms Act 1968.) They should therefore be sent to the Crown Court for trial.

16 and 17 year olds are subject to a mandatory minimum sentence of 3 years and so the case must be committed to Crown Court for trial. The youth court has no jurisdiction to try such cases (s.24 (1B) Magistrates Courts Act 1980).

Section 51A Firearms Act 1968 - General

For detailed guidance on the Firearms Act and the operation of the mandatory minimum sentence provisions, go to <Specific Subject Guidance>Weapons>Firearms> elsewhere in this guidance

Sections 110 and 111 of the Act; Venue for trial

The offences covered by these sections are either way or indictable only. Sections 110 and 111 of the Act provide that an either way drug trafficking or domestic burglary offence, which could attract the minimum sentence of seven years or three years, shall be triable only on indictment.

The prosecutor should identify that an accused qualifies under the Act [eg has two qualifying convictions] and is before the court for a third offence. The prosecutor must take positive steps to advise the magistrates as soon as possible that the prosecution assert that an accused qualifies under the Act and always before Plea Before Venue.

Where an accused appears before a magistrates' court and the CPS claims that he or she is subject to two qualifying convictions under sections 110 or 111 of the Act the court must satisfy itself:

that the accused is charged with an offence that qualifies under the relevant sections

and

that upon conviction the accused may be sentenced to a statutory minimum sentence.

The court may send or commit the accused for trial

If the magistrates proceed to deal with a third offence which qualifies under section 110 or 111 of the Act and should be treated as indictable only, it is likely that proceedings before the court are a nullity.

Challenges in the Magistrates' Court to one or more qualifying convictions

Where the defence indicate that there is a challenge to a qualifying conviction under the Act the court should be advised and the case adjourned.

If the dispute turns on whether a previous conviction qualifies (eg the accused claims a conviction was for a class B drug rather than a class A drug trafficking offence), it is the responsibility of the CPS to request the convicting court to supply a copy of the memorandum or certificate of conviction.

Where the accused disputes a qualifying conviction or asserts that for any other reason section 110 or 111 does not apply, the magistrates must resolve the dispute to its own satisfaction and rule on the point. In most circumstances a memorandum or certificate of conviction, particularly under section 113 of the Act, showing that a particular conviction qualifies under the 2000 Act is likely to be proof at this stage in the proceedings. Where in exceptional circumstances the memorandum or certificate is not capable of resolving the dispute, the court will be able to consider whatever other information is available to resolve the dispute.

Where an accused disputes that he or she is the person named in the certificate of conviction, the normal means of proof will apply.

Crown Court

Case preparation issues

The Crown Court should be advised by the magistrates' court that sections 110 or 111 apply. However, the CPS should also confirm with the court that they are so aware.

The prosecutor or the caseworker preparing the Outline of Allegations and Issues for Judge and Defence should note under "Aggravating Features" when sections 110 or 111 Powers of the Criminal Courts (Sentencing) Act 2000 apply. A copy of the defendant's previous convictions should be annexed to the form.

It is also the responsibility of the police to provide the Crown Court with brief details of the circumstances of the last three similar convictions and/or of convictions likely to be of interest to the court, the latter being judged on a case by case basis. This information should be provided separately and attached to the antecedents." See Practice Note [1997] 4 All E R 350 (italics added).

Pre-trial hearings to include Plea and Case Management Hearings (PCMH)

The defence will be aware from committal or will have had a notice that a mandatory minimum sentence might apply.

Where sections 110 or 111 apply the prosecution advocate should be instructed by the CPS to enquire at the pre-trial/PCMH whether the defendant accepts:

that the previous convictions relate to him or her;
the convictions bring into play the Powers of the Criminal Courts (Sentencing) Act 2000;
the facts of the previous offence(s) as outlined in the documentation provided by the police; and
whether the defence will claim that there are exceptional or particular circumstances in the case for not imposing the prescribed sentences.

It should also be noted that the defence has a duty to notify the prosecution where any points arise from the antecedents at least seven days before the hearing date so that the matter can be resolved prior to the hearing: Practice Note [1997] 4 All E R 350. This is an added safeguard and may be a further indicator where a conviction is disputed.

Challenges in the Crown Court

As with the magistrates' court, it will be the responsibility of the CPS to request the relevant certificate or memorandum of conviction.

Even though the conviction and the identity of the offender are accepted there may be a dispute as to the facts of the previous offence(s). These may be relevant to finding exceptional or particular circumstances which would justify not passing a mandatory or minimum sentence.

The antecedents which are based on the police file may not resolve the issue. They will not take account of any agreed basis of plea or judge's finding of fact on sentence.

In these circumstances, it may be appropriate to consider:

obtaining the transcripts of the sentencing remarks for the previous offence; or
whether the previous sentence itself is relevant. If the defendant received a sentence within the normal tariff for the previous offence, this may suggest that there were no exceptional or particular circumstances.

Reduction in sentence for a Guilty Plea

Where the offender has pleaded guilty, the court is required to take into account the stage at which he indicated his intention to plead guilty and the circumstances in which the indication was given- s.144 Criminal Justice Act 2003.

In the case of an offence where the offender falls to be sentenced under either s.110 or s.111 PCC(S)A, the maximum reduction for the guilty plea will be 20% of the minimum term which would otherwise have been imposed - s.144(2) Criminal Justice Act 2003

However, in the case of an offence contrary to s. 51A Firearms Act 1968, in contrast to s.144(2) PCC(S)A, there is no provision that limits the extent to which a guilty plea can affect the sentence imposed. In R v Jordan [2005] 2 Cr.App.R.(S) 266, the Court of Appeal held that in respect of section 51A, Parliament must have intended to exclude the normal principles of reduction in sentence to reflect the guilty plea, and no discount was therefore available. The effect of s.51A was mitigated by the possibility of "exceptional circumstances" being found. For what may amount to exceptional circumstances, see R v Rehman [2006] 1 Cr. App. R. (S) 77).

For more detailed guidance go to <Specific Subject Guidance>Weapons>Firearms> elsewhere in this guidance.

See also the Sentencing Guidelines Council Definitive Guideline: reduction in Sentence for a Guilty Plea (revised 2007) www.sentencing-guidelines.gov.uk

CPS responsibilities at sentence: Unduly lenient sentences

In the event that a court does not impose a mandatory minimum custodial sentence, consideration should be given to either:

having the case re-listed by applying the 28 day slip-rule to correct a simple error, or
seeking an unduly lenient sentencing reference by the Law Officers to the Court of Appeal (under section 36 Criminal Justice Act 1988 as amended) when the judge has consciously decided not to impose the mandatory/minimum sentence.<Refer to Unduly Lenient Sentences, elsewhere in this guidance> Note that there are strict time limits for submission of applications to refer a case and the time limits may not be extended.

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