In praise of “Two strikes and you’re out”

Sentencing in the UK has been in a constant state of flux since at least the advent of New Labour. Thirty odd years ago a criminal practitioner could make do with a copy of the 1972 Criminal Justice Act and probably get through sentences for many years without having to dust off a copy of Archbold.

The chaotic attitude to criminal justice of the collapsing Major government was eagerly taken up by Tony Blair and two of the worst Home Secretaries in the history of the office – Jack Straw and David Blunkett. Since then, instead of clear and thought-through legislation, the approach to penal policy has been half headless chicken and half Maoist permanent revolution. It reached a nadir with the 2003 Act that was not just impossible to deal with and manifestly unjust and silly when dealing with adult offenders, managed, when dealing with youths, to be logically inconsistent.

Not that the current lot are much better. Chris Grayling was showing his manly credentials with a pretty silly speech to the Tory Party Conference, part of which saw him extolling the virtues of ‘two strikes and you’re out’ legislation. It’s our version of the American ‘three strikes‘ laws – a very good way to waste public money and keep people locked up for an eye-watering amount of time, often for no good reason.

And to that end, I want to propose a new ‘two strikes out’ legislation. The basic idea is this – if a government, in its endless cycle of criminal legislation, proposes a change that consists of a ‘new’ sentencing regime that has been tried before and repealed, they are then shut out from passing any piece of criminal law for the remainder of that Parliament.

On that basis, Grayling is out by my reckoning. Back in 1997, under the stewardship of Michael Howard, we had the first proper set of mandatory sentencing legislation in the Crime  (Sentences) Act. Getting on to the statute book just before the election, it included s2 – “life sentences for second serious offence“.  Blair brought it into force later that year (it lasted less than 3 years and was repealed and replaced by the Powers of Criminal Courts (Sentencing) Act 2000 – not bad going by current standards).

The new legislation is due to come in to force in December and is basically the same as the ‘old’ two strikes and you’re out. The main difference relates to the qualifying conditions and, whisper it, Chris Grayling (well, Ken Clarke) is softer than Labour.  Under the new law, there’s a requirement that both the first sentence attracted, and the second would otherwise attract, a 10 year sentence (or equivalent IPP/life sentence), so fewer people will be caught by it (although whether Grayling will try and reduce this remains to be seen – I wouldn’t be surprised).

The list of offences that this applies to is basically the same (there’s more sexual offences from the Sexual Offences Act 2003 and terrorism offences). Indecent photographs of children under s1 Protection of Children Act 1978 is the only old offence that is added, although this is really symbolic as the maximum sentence is 10 years so, unless the maximum sentence is passed, this is unlikely to ever be relevant (as is the case with ss11, 12 and 15 Sexual Offences Act 2003 that are also amongst the offences listed).

So. Why are we going back to this? Has the cycle of the last fifteen years got us anywhere? No. Was there any need for automatic life sentences in 1997? No (and none of the automatic sentences are actually automatic – there is always a get out clause of exceptional circumstances relating to either of the offences or the defendant for both old and new sentences).  Is this anything other than base playing to the gallery? No. My two strikes law wouldn’t have stopped this, but it would at least have stopped any more panic legislating for the next few years. Parliament is very, very good at passing bad laws. Even if my ‘two strikes’ doesn’t deter them, or rehabilitate them into understanding the importance of thinking before voting, it will at least give the public a break from the deluge of legislation for a bit.


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