Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models

3. England and Wales

3.1 Summary

There are few mandatory sentences of imprisonment in England and Wales . A small number have been introduced in recent years in response to populist pressures and growing public concern about some specific offences such as domestic burglary. Sentencing in England and Wales has traditionally followed a just dessert-based orientation [9], with enhanced penalties for specific categories of offenders.

3.2 Overview of Sentencing Framework

The sentencing of adult offenders in England and Wales will change significantly over the next few years as a result of the reforms introduced by the Criminal Justice Act 2003 , which received Royal Assent in November 2003 (see Taylor , Wasik and Leng, 2004). As well as re-enacting some existing provisions, this legislation places the purposes and certain principles of sentencing on a statutory footing. It also establishes a mechanism for generating sentencing guidelines to be issued by the newly created Sentencing Guidelines Council for the first time in England and Wales . These provisions in the Act reflect, in part, the contents of the Home Office Sentencing Review, chaired by John Halliday, which resulted in a report in 2001 (Home Office, 2001) and a government White Paper published in 2002 (Home Office, 2002).

The Criminal Justice Act (2003) [10] prescribes a number of sentencing goals that courts must consider when sentencing offenders:

s. 147 Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing -

  1. the punishment of offenders;
  2. the reduction of crime (including its reduction by deterrence);
  3. the reform and rehabilitation of offenders;
  4. the protection of the public; and
  5. the making of reparation by offenders to persons affected by their offences .

The other important change in sentencing philosophy introduced by the Criminal Justice Act concerns the role of previous convictions. If the offender's priors are considered recent enough and relevant for the current sentencing by the court, each previous conviction must be treated as an aggravating circumstance.

The relevant section provides the following:

s. 143 In considering the seriousness of an offence ("the current offence";) committed by an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular to -

  1. the nature of the offence to which the conviction relates and its relevance to the current offence, and
  2. the time that has elapsed since the conviction .

By requiring courts to take into account multiple (and potentially conflicting) sentencing aims, and by giving a progressively larger role to an offender's prior convictions, the Criminal Justice Act (2003) could, to a significant degree, move sentencing in England and Wales away from a model based on the principle of proportionality. The Act attempts in one provision to preserve proportionate sentencing, while in another seemingly giving an enhanced role to a variety of other sentencing aims, and calling for progressively increasing punishments for recidivist offending. This may be creating some confusion regarding the purpose and principle of sentencing.

3.3 Mandatory Sentences of Imprisonment [11]

Mandatory sentences for serious offences were created by the Crime (Sentences) Act of 1997. Three offence categories are included: offenders convicted of repeat serious offences; repeat drug traffickers; and repeat domestic burglars (see Appendix B). The mandatory life sentence for a second conviction of a serious offence was repealed by the Criminal Justice Act (2003) but the minima for repeat drug and domestic burglars as well as firearms remain in force. These mandatory sentences of imprisonment reflect the attention paid to recidivist offenders in 1990s, which resulted in "three-strikes"; statutes in the United States.

The important point to bear in mind about the mandatory sentences of imprisonment in England and Wales is that they permit some limited judicial discretion in the event that the court is of the opinion that there are particular circumstances which relate to any of the offences or to the offender and would make it unjust to so impose the mandatory sentence. The judge must provide the reasons for not imposing the mandatory sentence. Thus, these mandatory sentences fall into the more flexible category of mandatory minima, namely those sentences that permit judges some flexibility.

3.4 Mandatory Minimum Sentences for Firearms Offences

Section 287 of the Criminal Justice Act (2003) contains a mandatory term of imprisonment for a number of offences found in the Firearms Act (1968) . The Criminal Justice Act (2003) thus amends the Firearms Act (1968) (c. 27) and creates mandatory sentences of imprisonment for a number of firearms offences. [12] Section 287 of the Criminal Justice Act (2003) prescribes a minimum sentence of five years custody in the case of an adult offender (aged 18 or older) or a minimum sentence of three years imprisonment for an offender aged 16 years. As with the aforementioned mandatory sentences limited judicial discretion is permitted. Thus:

s. 287 (2) The court shall impose an appropriate custodial sentence (or order of detention [13]) for a term of at least the required minimum term (with or without a fine) unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so.

3.5 Impact of the Mandatory Sentencing Legislation

No impact analysis of the mandatory sentencing legislation has been conducted by the Home Office. In light of the relatively small number of offences affected, it seems unlikely that the mandatory sentences have had a significant impact on the prison population in England and Wales.

3.6 Future of Mandatory Sentences of Imprisonment

As noted earlier, there are no plans to increase the number of mandatory sentences of imprisonment in England and Wales . On the other hand, there is no equivalent in Britain to the grassroots movement found in the United States to repeal or amend the existing mandatory sentences.[14] Again, this is likely due to the relative rarity of mandatory minimum sentences within the sentencing framework. The only opposition to the mandatory sentences comes from academics active in the area. There have been some calls to increase the number or scope of mandatory sentences of imprisonment in Britain for terrorist offences. Mandatory minima have become an attractive reform for politicians to propose prior to an election. However, no political party included additional mandatory sentences in its electoral platform during the campaign of 2005. In short, the status quo is likely to remain for some time to come.

3.7 References and Further Reading

  • Ashworth, A. (2000). Sentencing and Criminal Justice. (Third Edition) Butterworths.
  • Ashworth, A. (2001). The Decline of English Sentencing and Other Stories. In: M. Tonry and R. Frase (eds.) Sentencing and Sanctions in Western Countries . New York : Oxford .
  • Baker, E. & Clarkson, C. (2002). Making Punishments Work: An Evaluation of the Halliday Report on Sentencing in England and Wales , Criminal Law Review, 81.
  • Home Office (2001). Making Punishments Work: Report of a Review of the Sentencing Framework forEnglandandWales . London : Home Office. The report is also available at:
  • Home Office (2002). Justice for All. CM 5563. London : Home Office.
  • Roberts, J.V. (2002). Alchemy in sentencing: An analysis of sentencing reform proposals in England and Wales , Punishment and Society, 4: 25 .
  • Taylor , R., Wasik, M., and Leng, R. (2004). Blackstone's Guide to the Criminal Justice Act 2003 . Oxford : Oxford University Press.
  • von Hirsch, A. (2002). Record-enhanced sentencing in England and Wales (2002) 4 Punishment and Society 4 : 443.
  • von Hirsch, A. & Roberts, J.V. (2004). Legislating Sentencing Principles:
  • The Provisions of the Criminal Justice Act 2003 relating to Sentencing Purposes and the Role of Previous Convictions. Criminal Law Review , August, 639-652.
  • von Hirsch, A. and Ashworth, A. (2005). Proportionate Sentencing. Exploring the Principles . Oxford : Oxford University Press.

  • [9] Under a just desserts sentencing rationale, the severity of punishments should increase to reflect the seriousness of crimes for which the sentences are imposed. This is known as the principle of proportionality in sentencing (see von Hirsch and Ashworth, 2005).
  • [10] This legislation can be found at:
  • [11] According to section 225 of the Criminal Justice Act (2003) , a court must impose a sentence of imprisonment for life if certain criteria are met. These pertain to offenders convicted of serious offences that represent a significant risk to members of the public. Since the imposition of this sentence is contingent upon the court considering such an offence justified, it is not included in this review of mandatory sentences despite the language of the Act ("the court must impose a sentence of imprisonment for life";).
  • [12] The offences include possessing or distributing certain prohibited weapons or ammunition and possessing or distributing a firearm disguised as another object.
  • [13]This applies to juvenile offenders .
  • [14]For example, the organization "Families Against Mandatory Minima"; has an extensive website devoted to advocacy in this area and has had a clear impact on legislators in a number of states.
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