The Legal Aid, Sentencing and Punishment of Offenders Act 2012
| Published date | 01 June 2013 |
| DOI | 10.1177/0264550513489762 |
| Date | 01 June 2013 |
| Author | Ralph Cairns |
| Subject Matter | Practice Note |
Practice Note
The Journal of Community and Criminal Justice
Probation Journal
The Legal Aid,
60(2) 177–189
ª The Author(s) 2013
Sentencing and
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DOI: 10.1177/0264550513489762
Punishment of
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Offenders Act 2012:
The significant
changes
Ralph Cairns
Barrister
Abstract
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) confirms the
Sentencing Guidelines as the axiom of sentencing policy. This indicates the importance
of probation services need to respond proactively to this trend by ensuring offender
managers (OMs) have a working knowledge of how to interpret and use the guidelines.
Changes to community and suspended sentence orders simplify the pre-sentence assess-
ment process and permit more OM discretion to allocate specific programmes to an
offender post sentence based on need and present circumstance. The Rehabilitation
of Offenders Act is returned largely to its original 1974 values and also extends the
range of sentences eligible for rehabilitation. It is, however, the provisions relating to
dangerous offenders and licence release that contains the most significant changes. Sen-
tences for public protection are abolished and replaced with the new ‘automatic’ life
sentences (ALS) and extended determinate sentence (EDS). The Secretary of State is
given the power to amend, by statutory instrument, the release test for IPP and other
indeterminate prisoners. The overal effect of the sentencing changes is to return gravity
of offence as the primary sentencing tool at the expense of risk factors central to the
2003 Criminal Justice Act (CJA). A new legal aid scheme will now be administered
within the Ministry of Justice.
Corresponding Author:
Ralph Cairns, Barrister and independent trainer.
Email: ralphcairns@hotmail.co.uk
178
Probation Journal 60(2)
Keywords
bail, Community Orders, indeterminate sentences, legal aid, prison licences, rehabi-
litation of offenders, youth licences
Duty of court to explain decisions
LASPO has reinforced the importance of the Sentencing Guidelines to the senten-
cing process. The court must not only use the guidelines but explain in every case
(even fines) how the court has interpreted the relevant guideline to the facts of the
individual case. Although LASPO dispenses with the courts duty to always follow the
guidelines, it sets out clearly in what circumstances they may be departed from.
These exceptions are generally explained within the particular offence category
guideline and the new exceptions only apply to offences committed after April
2010. It should be self-evident from this that if probation trusts are to remain central
to the sentencing process they must address the criteria by which sentencers them-
selves are governed. This does not mean that Pre-sentence Report (PSR) authors have
to slavishly follow the guidance or directly refer to it. They should rather wed their
knowledge of available interventions, to factors in the relevant guideline when com-
pleting an assessment of the current circumstances of the offender in the offence
analysis. To successfully complete this task the author must know how to use the
guidelines, and this in turn requires probation trusts to keep an up-to-date version
of the guidelines (which can be updated up to five times a year) available on their
intranet. PSR authors already refer to the guidelines when completing assessments
of dangerousness. This process should now be extended to all instances where a full
(complex) PSR has been ordered by the court.
Community Orders
Section 67 of LASPO enacts changes to Schedule 8 of the 2003 Criminal Justice Act
(CJA) dealing with breach of Community Orders (COs). First, s.67(a) returns the
courts power to fine for breach up to a maximum of £2500. Given the court’s
general propensity to hand out fines to offenders with one hand and remit them at a
later date with the other, it remains to be seen how effective or well utilized this new
provision will be.
A second amendment to COs is made by LASPO to s.177 of the 2003 CJA. This
permits the court to specify end dates for each individual requirement as well as an
end date for the order itself. These changes give structure to the order by committing
the offender to times for the completion of individual requirements. Failure to comply
with those dates might in some circumstances justify enforcement action, although it
should be added that a new power to extend an order by up to six months, even on
an existing order comprising the 36 months maximum, may be granted once only,
on the application of either the responsible officer or the offender.
Commencement: All the provisions that were commenced on 3 December 2012
do not apply to offences committed before that date. Orders made prior to this date
Cairns
179
cannot be extended. New penalties for breach do not apply to failures to comply
which occurred prior to 3 December 2012.
Suspended sentences (SSOs)
The main change for SSOs is the extension of the period of imprisonment which is
capable of being suspended. Suspended sentences will potentially apply to custo-
dial sentences of up to two years effectively doubling the previous limit of 51 weeks.
This only affects sentences imposed in the Crown Court and the magistrate’s powers
to impose custody remains capped at six months. The significance of this is when
combined with the various available discounts, it will be possible for the Crown
Court to suspend a sentence that would originally have been as much as three and a
half years (early guilty plea and remand time) – thus providing PSR authors with
considerable scope for arguing for suspension of the prison term, even where a
custodial sentence has been deemed inevitable by the court. There is also a return to
the ‘stand alone’ SSO where no requirements are attached. This is clearly meant to
apply to serious offences where no specific criminogenic need has been identified.
The new provisions will apply to all offences – irrespective of when committed, the
only relevant date for consideration being the date of conviction.
Commencement: The changes in SSOs were commenced on 3 December 2012
but do not apply to persons convicted before that date. Commencements of
penalties for breach are the same as COs.
Requirements of COs and SSOs
LASPO brings in new requirements and amends existing ones. First, the minimum
six-month period for Drug Rehabilitation and Alcohol Treatment requirements (DRR’s
and AT’s) has been removed so that treatment periods can be tailored to the needs
of individual offenders based on the Offender Manager’s (OM’s) personal knowl-
edge. Second, and equally welcome, is the power of the court to make an un-
nominated general programme requirement. This provides that the court may make
an order for the offender to undertake a programme led intervention without having
to adjourn for an assessment. A full offender assessment may now be undertaken
post sentence by his OM and permits expedited sentencing at the expense of an
unnecessarily bureaucratic procedure.
There are two new requirements brought in by LASPO. The Foreign Travel Prohi-
bition Requirement (of up to 12 months) brings the legislation in line with established
practice. It has always been within the power of OMs to prevent foreign travel by
refusing leave to miss appointments on consequence of breach. The new provision
now places this responsibility firmly in the hands of the court rather than the OM. The
provision appears aimed at, amongst others, football match related violence.
The Alcohol Abstinence and Monitoring Requirement (AAMR) has also been
added to the sentencing framework of COs. Its commencement is delayed, how-
ever, whilst awaiting the completion of the pilot programme. The AAMR gives the
court power to order the offender to abstain from consuming alcohol or not permit
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Probation Journal 60(2)
the alcohol level in their body to exceed a specified limit. The maximum length of the
requirement of 120 days appears to indicate this is to be utilized as a punitive rather
than rehabilitative tool. The requirement must, however, satisfy four conditions.
Alcohol must have caused or contributed...
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