Criminal Justice (Mandatory
Minimum Periods of Actual Imprisonment) (Jersey) Law 2005
A LAW prescribing the period that
offenders sentenced to mandatory life imprisonment must spend in prison, and
for connected purposes.
Adopted by the
States 24th May 2005
Sanctioned by
Order of Her Majesty in Council 7th June 2005
Registered by the
Royal Court 17th
June 2005
THE STATES, subject to the sanction
of Her Most Excellent Majesty in Council, have adopted the following
Law –
PART 1
INTERPRETATION
1 Interpretation
(1) In
this Law, unless the context otherwise requires –
“child”
means a person who has not attained the age of 18 years;
“mandatory minimum period of
imprisonment” has the meaning assigned to
it by Article 10(2);
“murder which is aggravated by sexual
orientation or disability” has the meaning
assigned to it by Article 3;
“murder which is racially or religiously
aggravated” has the meaning assigned to it
by Article 2;
“prescribed” means prescribed by Regulations made under Article 19;
“starting point”, in relation to an offender, means a period calculated under
Article 5, 6, 7 or 8 in relation to the offender.
(2) In
this Law, a sentence of life imprisonment is taken to be fixed by law if a
court that finds a person guilty of the offence to which the sentence relates
must by law impose that sentence.
(3) In
this Law, “early release provisions” means the prescribed
provisions of any enactment of Jersey, or of any of the other British Islands,
that are provisions in accordance with which an offender who is in prison,
custody or detention under a sentence of life imprisonment may be released from
the imprisonment, custody or detention before the completion of the sentence.
(4) In
this Law, a reference to a sentence of life imprisonment includes a sentence of
custody for life or detention during Her Majesty’s pleasure.
2 Meaning
of “racially or religiously aggravated murder”
(1) For
the purposes of this Law, a murder is racially or religiously aggravated
if –
(a) at
the time of, or immediately before or after, committing the murder the offender
demonstrates towards the victim of the offence hostility based on the
victim’s membership of (or presumed membership of), or association with,
a racial or religious group; or
(b) the
offence is motivated wholly or partly by hostility –
(i) towards members
of a racial or religious group based on their membership of that group, or
(ii) towards persons
who associate with a racial or religious group.
(2) For
the purposes of paragraph (1)(a) or (b), it is immaterial whether or not the
offender’s hostility is also based, to any extent, on –
(a) the
fact or presumption that any person or group of persons belongs to any racial
or religious group; or
(b) any
other factor not mentioned in that sub-paragraph.
(3) In
this Article –
“presumed” means presumed by the offender;
“racial group”
means a group of persons that may be defined by reference to race, colour,
nationality (including citizenship) or ethnic or national origins;
“religious group” means a group of persons defined by reference
to religious belief or lack of religious belief.
3 Meaning
of “murder aggravated by sexual orientation or disability"
(1) For
the purposes of this Law, a murder is aggravated by sexual orientation or
disability if –
(a) at
the time of, or immediately before or after, committing the murder, the
offender demonstrates towards the victim of the offence hostility based
on –
(i) the sexual
orientation (or presumed sexual orientation) of the victim, or
(ii) a disability (or
presumed disability) of the victim; or
(b) the
offence is motivated wholly or partly –
(i) by hostility
towards persons who are of a particular sexual orientation, or
(ii) by hostility
towards persons who have a disability or a particular disability.
(2) In
this Article –
“disability” means any physical or mental impairment;
“presumed” means presumed by the offender;
“sexual orientation” of a person includes whether the
person engages in prostitution.
PART 2
MANDATORY MINIMUM IMPRISONMENT ORDERS
4 Starting
points
A court that, after this Law comes into force, sentences an offender
to life imprisonment as fixed by law for an offence or offences shall fix, in
accordance with Articles 5, 6, 7 and 8, as the case may be, the
appropriate starting point in relation to the offender for the purposes of
Article 10.
5 Starting
point for exceptionally serious cases
(1) The
appropriate starting point in relation to an offender who is sentenced to life
imprisonment as fixed by law for an offence or offences shall be the whole of
the offender’s life if –
(a) the
offender was 21 years of age or older when he or she committed the offence
or offences to which the starting point relates; and
(b) the
court considers that the offender’s offence, or the combination of the
offender’s offence and other offences of the offender that are associated
with the offence, is exceptionally serious.
(2) Without
limiting the generality of paragraph (1), cases that would normally be
regarded as exceptionally serious include the following –
(a) murder
of 2 or more persons, where each murder involves any of the following –
(i) a substantial
degree of premeditation or planning,
(ii) the abduction of
the victim,
(iii) sexual or sadistic
conduct;
(b) murder
of a child, if the murder involves the abduction of the child or sadistic or
sexual motivation;
(c) murder
for the purposes of advancing a political, religious or ideological cause;
(d) murder
by an offender previously convicted of murder.
6 Starting
point for particularly serious cases
(1) The
appropriate starting point in relation to an offender who is sentenced to life
imprisonment as fixed by law for an offence or offences shall be the period of
30 years if –
(a) the
court does not consider that the offender’s case falls within Article 5(1);
(b) the
offender was 18 years of age or older when he or she committed the offence
or offences to which the starting point relates; and
(c) the
court considers that the offender’s offence, or the combination of the
offender’s offence and other offences of the offender that are associated
with the offence, is particularly serious.
(2) Without
limiting the generality of paragraph (1), cases that would normally be regarded
as particularly serious include the following –
(a) murder
of a police officer, or prison officer, in the course of the officer’s
duty;
(b) murder
involving the use of a firearm or explosives;
(c) murder
for gain (such as murder in the course of a robbery or burglary, or for payment
or in the expectation of gain as a result of death);
(d) murder
done with the intention of obstructing or interfering with the course of
justice;
(e) murder
involving sexual or sadistic conduct;
(f) murder
of 2 or more persons;
(g) murder
which is racially or religiously aggravated;
(h) murder
which is aggravated by sexual orientation or disability.
7 Starting
point for other cases where offence committed while offender was an adult
The appropriate starting point in relation to an offender who is
sentenced to life imprisonment as fixed by law for an offence or offences shall
be the period of 15 years if –
(a) the
court does not consider that the offender’s case falls within
Article 5(1) or 6(1); and
(b) the
offender was 18 years of age or older when he or she committed the offence
or offences to which the starting point relates.
8 Starting
point for other cases where offence committed while offender was a child
The appropriate starting point in relation to an offender who is
sentenced to life imprisonment as fixed by law for an offence or offences shall
be the period of 12 years if the offender had not attained the age of
18 years when he or she committed the offence or offences to which the
starting point relates.
9 Aggravating
and mitigating factors
(1) After
having fixed a starting point in relation to an offender, the court shall take
into account any aggravating or mitigating factors, to the extent that it has
not allowed for those factors in fixing the starting point.
(2) Aggravating
factors that may be relevant to the offence of murder include the following –
(a) the
factors mentioned in Articles 5(2) and 6(2);
(b) a
significant degree of planning or premeditation;
(c) that
the victim was particularly vulnerable because of age or disability;
(d) mental
or physical suffering inflicted on the victim before death;
(e) the
abuse of a position of trust;
(f) the
use of duress or threats against another person to facilitate the commission of
the offence;
(g) that
the victim was providing a public service or performing a public duty;
(h) concealment,
destruction or dismemberment of the body.
(3) Mitigating
factors that may be relevant to the offence of murder include the
following –
(a) an
intention to cause serious bodily harm rather than to kill;
(b) lack
of premeditation;
(c) that
the offender suffered from any mental disorder or mental disability which,
although not within Article 3(1) of the Homicide (Jersey) Law 1986,[1] lowered the degree of
culpability of the offender;
(d) that
the offender was provoked (for example by prolonged stress) in a way not
amounting to the defence of provocation;
(e) that
the offender acted to any extent in self-defence;
(f) a
belief by the offender that the murder was an act of mercy;
(g) the
age of the offender.
10 Court to order
mandatory minimum period of imprisonment
(1) The
court shall, after having –
(a) fixed
under Article 4 a starting point in relation to an offender who is
sentenced to life imprisonment as fixed by law for an offence or offences; and
(b) considered
under Article 9 aggravating or mitigating factors in relation to the
offender,
order in relation to the offender a mandatory minimum period of
imprisonment in respect of the offence or offences.
(2) A
mandatory minimum period of imprisonment in relation to an offender is the
period specified in an order under paragraph (1) in relation to the offender
during which early release provisions shall not apply in relation to the
offender in respect of the offence or offences to which the order relates.
(3) If
the court orders a mandatory minimum period of imprisonment under paragraph (1),
early release provisions shall not apply in relation to the offender in respect
of the offence or offences to which the order relates –
(a) until
the end of the period; or
(b) if
the order is made for the whole of the offender’s life – at
any time during the remainder of the offender’s life.
(4) If
the court orders a mandatory minimum period of imprisonment that is less than
the whole of the offender’s life, the court shall order that early
release provisions shall, after the end of the mandatory minimum period of
imprisonment specified under paragraph (1), apply in relation to the
offender in respect of the offence or offences to which the order relates.
11 Determination
of duration of mandatory minimum period of imprisonment
(1) The
court may, under Article 10, order a mandatory minimum period of
imprisonment of any length, including a period that is the whole of the
offender’s life, irrespective of the starting point fixed by the court.
(2) Notwithstanding
paragraph (1), the court shall only order a mandatory minimum period of
imprisonment that is the whole of the offender’s life if the offender was
21 years of age or older when he or she committed the offence or offences
to which the order relates.
(3) In
determining the length of a mandatory minimum period of imprisonment in
relation to an offender, the court may take into account any period that,
before the offender was sentenced for the offence or offences to which the
mandatory minimum period of imprisonment relates, he or she spent on remand in
relation to the offence or offences.
12 When court shall
order mandatory minimum period of imprisonment to be for whole of
offender’s life
(1) The
court shall, under Article 10, order a mandatory minimum period of
imprisonment that is the whole of an offender’s life if –
(a) the
offender was 21 years of age or older when he or she committed the offence
or offences to which the order relates; and
(b) the
court is satisfied that early release provisions should not apply to the
offender at any time because of the seriousness of the offence or the
seriousness of the combination of the offence and other offences associated
with the offence.
(2) In
determining whether to make an order under Article 10 of a mandatory
minimum period of imprisonment that is the whole of an offender’s life,
the court shall have regard to the principles set out in Articles 5, 6, 7,
8 and 9.
13 Court must give
reasons for order made
After making an order under Article 10(1) the court shall state
in open court, in ordinary language, its reasons for making the order.
PART 3
APPLICATION IN RELATION TO OTHER LAWS
14 Law not to
restrict application of certain other laws
Nothing in this Law restricts the application of any law relating to
previous convictions, bail or a guilty plea.
15 Effect of release
in another jurisdiction on sentence in Jersey
If a person who is sentenced
by a court in Jersey to a term of life imprisonment as fixed by law –
(a) serves part of that term in a prison in any
of the other British Islands; and
(b) returns to Jersey after being released from
custody,
the person is not to be
taken to be unlawfully at large in Jersey only because he or she has not served
all of the sentence ordered by the court in Jersey.
16 Appeal to Privy
Council not restricted
Nothing in this Law shall be
taken to restrict a right that a person or the Attorney General has to appeal
to the Privy Council.
17 Court of Appeal (Jersey) Law 1961
amended
In Article 24 of the Court
of Appeal (Jersey) Law 1961[2] –
(a) for
the words “A person” there shall be substituted the words
“(1) A person”;
(b) at
the end there shall be added the following paragraphs –
“(2) The reference in paragraph (1)(c)
to a sentence fixed by law shall not be taken to include a reference to an
order imposed under the Criminal Justice
(Mandatory Minimum Periods of Actual Imprisonment) (Jersey) Law 2005.
(3) The Attorney General may, with the leave of
the Court of Appeal, appeal against a sentence insofar as it consists of an
order imposed under the Criminal Justice
(Mandatory Minimum Periods of Actual Imprisonment) (Jersey) Law 2005,
on the grounds that the order does not impose a mandatory minimum period of
imprisonment of sufficient length, having regard to the circumstances of the
offence or offences in relation to which the order relates.”.
18 Homicide (Jersey)
Law 1986 amended
In Article 1 of the Homicide (Jersey) Law 1986, paragraph (2)
shall be deleted.
PART
4
CONCLUDING
PROVISIONS
19 Regulations
The States may make Regulations –
(a) amending
any provision of this Law; or
(b) prescribing
anything that this Law specifies shall be prescribed.
20 Transitional
provision – application to offences
Nothing is to be taken to prevent or limit the application of this
Law to a person who commits an offence before this Law comes into force.
21 Transitional
provisions – applications for orders
(1) A
person who, before this Law came into force, was sentenced by a court in Jersey
to a term of life imprisonment that is fixed by law may apply to the Royal
Court to order a mandatory minimum period of imprisonment in relation to the
person in respect of the offence or offences to which the sentence relates.
(2) The
Attorney General may apply to the Royal Court to order a mandatory minimum
period of imprisonment in relation to a person in respect of an offence or
offences for which the person was, before this Law came into force, sentenced
by a court in Jersey to a term of life imprisonment that is fixed by law.
(3) An
application may be made under paragraph (1) or (2) in relation to a person
whether or not any minimum period has been set by the court under Article 1(2)
of the Homicide (Jersey) Law 1986 in relation to the person in respect of
the offence or offences to which the application relates.
(4) At
the hearing of an application under paragraph (1) or (2) in relation to a
person, the Royal Court shall deal with the person under this Law as if the
court had just sentenced him or her to life imprisonment for the offence or
offences in respect of which the application is made.
(5) The
Royal Court shall, at the hearing of an application under paragraph (1) or
(2) in relation to a person, dismiss the application if the person has, in
accordance with any early release provisions or on compassionate grounds, been
released from custody in relation to the offence or offences to which the
application relates, whether or not the person has subsequently been taken into
custody for any reason.
(6) In
determining the length of a mandatory minimum period of imprisonment to order
under Article 10 in relation to a person to whom an application under paragraph (1)
or (2) relates, the Royal Court may, in addition to taking into account any
other matter that a court shall take into account in accordance with this Law,
take into account any period that the person has spent in prison for the offence
or offences to which the order is to relate.
(7) If
a mandatory minimum period of imprisonment is, in accordance with this Article,
set under Article 10 in relation to a person, any minimum period set by
the court under Article 1(2) of the Homicide (Jersey) Law 1986 in
relation to the person ceases to be of effect.
22 Citation and
commencement
This Law may be cited as the Criminal Justice (Mandatory Minimum
Periods of Actual Imprisonment) (Jersey) Law 2005 and shall come into
force on a day to be appointed by the States.
A.H. HARRIS
Deputy Greffier of the States.