The Act Commentary on Sections Part 2: Sentencing Section 19: Indeterminate Sentences: determination of tariffs
221.Section 82A of the 2000 Act requires a court determining the minimum period to be served in custody by an offender subject to a discretionary life sentence or indeterminate sentence for public protection to determine the tariff with reference to the period that the offender would have served in custody if sentenced to a determinate term. Section 82A(3) requires the court to determine the notional determinate term commensurate with the seriousness of the offence, to halve it to take account of the early release provisions and to give credit for time spent on remand.
222.This section increases the courts’ discretion when determining tariffs under section 82A in certain limited cases by giving courts discretion to reduce the notional determinate term by less than half in certain cases.
223.The discretion not to halve the notional determinate term applies in two sorts of case. The first case (“Case A”) is limited to the tariff determination for discretionary life sentences and applies where the circumstances of the offence or offences make the crime exceptionally serious (without being serious enough to justify a whole-life tariff, which requires a very extreme degree of exceptionality), and the court is of the opinion that to halve the notional determinate term would not adequately reflect the seriousness of the offence(s). The court may then reduce the tariff by any amount ranging from one-half to nil, as is appropriate to reflect the seriousness of the case. The increased discretion will only apply when a court is sentencing a person over 18 years old.
224.The second case (“Case B”) applies to both discretionary life sentences and indeterminate sentences of imprisonment (or juvenile or young adult equivalents) for public protection. Case B preserves a power developed in case law (as referred to in R v Lang & Ors [2005] EWCA Crim 2864), which addresses a technical problem that occasionally arises: it allows a court not to apply the full 50 per cent reduction in exceptional cases when to do so would result in a situation where the offender would not serve any extra time in custody. This situation historically has arisen where the offender is already serving a determinate custodial sentence and the minimum term would expire before the offender is eligible for release, because tariffs of indeterminate sentences cannot be served consecutively with other custodial sentences. Where Case B applies, the court may reduce the notional determinate term by less than half but by no less than one third.