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Sentencing: Former law lord will question amendment on sentencing

Lord Lloyd of Berwick, a former law lord, has announced that he will challenge a key government proposal on sentencing included in the Legal Aid, Sentencing and Punishment of Offenders bill. The proposed change in the law would see a 'two-strikes' rule brought in for serious, repeat offences.

The proposal is included in clause 117 of the controversial bill, which has seen numerous defeats and challenges in the House of Lords in recent weeks.

Under the new law, any offender who commits a serious 'listed' offence attracting a sentence of ten years or more would then be on a 'one-strike'. If later they were to commit another serious 'listed' offence then judges would be bound to give them a mandatory life sentence.

The proposals, which are similar to those employed in the US, have been criticised by magistrates who argue that mandatory sentencing does not allow them to consider the individual facts and nuances of each case.

Lord Lloyd will be supported in opposition to the proposal by fellow peer Baroness Stern. Stern is a former director of the National Association of the Care and Resettlement of Offenders. In an article in the Guardian, the two peers criticised clause 177.

"This is a most peculiar provision. It has been described by the Government as a mandatory life sentence, but it is no such thing. To our mind a mandatory sentence is a sentence which the court is obliged to pass, like the mandatory sentence of life imprisonment for murder, which the court is obliged to pass, even when the defendant has killed in mercy," they wrote.

Their objection is that the wording of the clause includes the word 'must', implying that judges must impose a mandatory sentence. However the clause goes on to state that judges must also consider the facts of the case. This confusing provision then seems to place a presumption of a life sentence in such cases; however, there is then no guidance as to what weighting a judge must place on the presumption, and no indication of the circumstances which might allow a judge to avoid the life sentence.

The Government has claimed that the new law would result in around 28 extra life sentences. However, Lord Lloyd and Baroness Stern have taken issue with this claim.

"Can we justify such an increase? We already have 7,663 life prisoners in England and Wales. If you add to them those serving indeterminate sentences for the protection of the public (IPP), which is a life sentence in all but name, the figure is 13,825. This inordinate use of the life sentence is peculiar to us," they continue.

Kenneth Clarke has defended the clause, stating that it would only apply in cases in which a defendant had committed 'near-murder' twice. However, it is thought he actually opposed the inclusion of the clause, and it was instead inserted after an intervention by the prime minister.

Related links:

Read more on the story (The Guardian)

How sentencing is worked out (FindLaw)

Find solicitors throughout the UK (FindLaw)