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October 25, 2011

Interesting new row about mandatory sentencing terms for juves across the pond

This new piece from The Guardian reports on an interesting dispute over a new UK sentencing proposal for extending a mandatory sentencing term to certain juvenile offenders.  The piece is headlined "Ken Clarke criticises mandatory sentence for teenagers carrying knives," and here is how it starts:

Ken Clarke, the justice secretary, is heading for a fresh clash with his cabinet colleague, Theresa May and Tory backbenchers after publicly criticising moves to impose mandatory prison sentences on teenagers found with a knife.

Clarke said telling a court that it must send a 13-year-old first time offender to a secure children's home would be "bit of a leap for the British justice system".  He added that mandatory sentences were a "totally different system of sentencing juveniles".

The coalition cabinet has agreed that a mandatory minimum six-month prison sentence for adults caught carrying a knife should be added to the sentencing and punishment bill but May, the home secretary, has reportedly been pressing for it to be extended to under-18s as well.

Two London Conservative MPs, Nick de Bois and David Burrowes, backed by the London mayor, Boris Johnson, and 38 other Tory MPs, have been campaigning for the change, claiming that 40% of all knife crime is committed by teenagers.

Clarke told the Commons home affairs committee that this claim was untrue.  He said mandatory sentences in British law were an American innovation based on the assumption that judges could not be trusted to sentence on the basis of the circumstances in each case.  "We have — because of the seriousness that we attach to knife crime and we think a strong message has got to be sent to people indulging in knife crime — agreed such a mandatory sentence for adults," said Clarke.

But, he added: "This is being tabled and that is the government's proposal.  The idea that mandatory sentences for certain types of offence, should be extended to young offenders, to children, to juveniles is a bit of a leap for the British judicial system."

The justice secretary made clear that the only mandatory sentence he really approved of was the life sentence for murderers. The experience of every other mandatory sentence introduced into Britain, including "three strikes and you're out" rule that remained on the statute book, was that the judges found a way round to ensure the sentence fit the circumstances of the crime.

October 25, 2011 at 05:43 PM | Permalink


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As a British law student with an avid interest in American sentencing policy I have to say I agree with Ken Clarke, mandatory sentencing for young offenders would be a great leap for British justice. To some extent we already have mandatory sentences for juveniles, albeit not via statute or common law but via the Sentencing Guidelines Council. The range and starting point for all kinds of offences is broken down, including deductions for guilty pleas, co-operation with the police (not in the American sense of the term though, co-operation here usually takes the form of admitting your own guilt, we have not yet progressed to the stage where we use, en masse, the tactic of getting criminals to implicate worse criminals) etc and unlike in the post-Booker U.S. the guidelines here are still mandatory.

We do have some statutory guidelines, e.g. a mandatory life sentence for murder, a mandatory 5 year prison sentence for anyone caught with an unlicenced gun. Interestingly a juvenile caught with an illegal gun also is also subject to a sentencing minimum, Young Offenders in the 15-17 age range should receive a 3 year sentence; AFAIK this emanates from the statute not just the sentencing guidelines.

So, while not unprecedented, parliament demanding that youth offenders be locked up for certain crimes is pretty rare and it will be met with criticism and possibly subversion from Judges and Magistrates. While reducing knife crime is a very compelling public policy objective we already have an overcrowding problem, a Magistracy which is very averse to incarcerating juveniles (or anyone for that matter, at least when compared with their more punitive American counterparts) and a government which is fiscally conservative.

Posted by: Josh | Oct 25, 2011 7:28:42 PM

I don't see a link to the statute and I'm too lazy to look it up myself, but someone please tell me that "knife" is narrowly defined. Tell me that everyone in Britain with a Swiss Army knife in their pocket isn't going to jail for six months.

Posted by: Ala JD | Oct 26, 2011 11:42:11 AM

maybe ala JD since you do know you can get life now in american if your dumb enough to take a pocket knife on a PLANE!

Posted by: rodsmith | Oct 26, 2011 5:59:35 PM

How about 20 years for writing lyrics for a song that could be construed as violent or could be construed as a terrorists actions? Some college student left lyrics or a poem on a piece of paper in his car, some busybody walked by and looked in the window, read the paper and reported it to the police. The guy was just found guilty today of making a terrorist threat. He could get probation or 20 years.

Posted by: JS | Oct 26, 2011 9:49:23 PM

@ Ala JD

Under English law (Scots law may differ on this point) a knife for these purposes is anything with a blade over 3 inches. If you are caught with such a blade the onus is on you to prove that you have it for a lawful purpose; if you can't you could face a charge of possesion of an offensive weapon and (in theory) up to 4 years in prison.

This new ruling will apply to 16-18 year olds who use the knife to threaten someone, so the actual offence charged will probably be Assault and in theory threatening someone with a knife which has a blade of less than 3 inches could still activate the mandatory sentence. And the starting point will be a 4 month Detention and Training Order (they serve half in a Young Offenders Institution and half on licence).

Posted by: Josh | Oct 27, 2011 3:55:03 PM

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