Blog Criminal Defence 24th Jun 2021

Court of Appeal warns advocates to take care where life sentences and determinate sentences are imposed at the same time – Narita Bahra QC & Stacy Stroud

The Court of Appeal has issued guidance to advocates, warning them to take care at sentencing hearings where a combination of indeterminate and determinate sentences are imposed.

Narita Bahra QC assisted by Stacy Stroud, was appointed by the Registrar to represent the defendant on appeal. They were successful in reducing the minimum term the client had to serve in custody before being eligible for consideration for release by the Parole Board.

The appeal arose because the client had received a life sentence for manslaughter at the same time as receiving determinate sentences for burglary, aggravated vehicle taking without consent and attempted robbery.

The Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020, which came into force on 1 April 2020, increased the proportion of a determinate sentence in respect of prisoners sentenced to imprisonment of 7 years or more for relevant violent and sexual offences before being eligible for release from one-half to two-thirds. Following the recent cases of Shaikh[1] and McWilliams[2], this rule also applied to the notional determinate term of the life sentence that the defendant received for manslaughter.

However, it did not apply to the sentences imposed for the other offences of burglary, aggravated vehicle taking and attempted robbery. This meant that the client would have to serve two-thirds of the life sentence’s notional determinate term, but only one-half of the sentence imposed for the other offences.

The way in which the Judge at the Crown Court had explained the sentence was unclear, which had important implications for the amount of time that the defendant would have to serve in prison. If the Judge had imposed concurrent sentences for all the offences but had aggravated the life sentence to take the burglaries, vehicle takings and attempted robbery into account, the minimum term would have been 14 years. However, the Court of Appeal found that the Judge had actually imposed a life sentence for manslaughter with a minimum term of 12 years and a consecutive determinate sentence of 3 years for the other offences.

The Court of Appeal noted that although the difference in this case was capable of clarification, the rules on minimum terms may cause greater controversy and concern in other cases. The Court warned both courts and advocates to be sensitive to the different release regimes that apply to different types of offences. Therefore, advocates should take care to ensure that the court specifies what portion of a sentence is to be served before the defendant is eligible for release where both indeterminate and determinate sentences are imposed.


Narita Bahra QC & Stacy Stroud

[1] [2021] EWCA Crim 45

[2] [2021] EWCA Crim 745

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