Part 7: Sentencing and release Chapter 1: Custodial sentences Section 129: Life sentence not fixed by law: minimum term
Section 129 amends section 323 of the Code. That section sets out the approach the court must take to determine a minimum term when it is required to make a minimum term order (rather than a whole life order) for those persons given a discretionary life sentence. A discretionary life sentence is a life sentence for offences other than murder where the judge has a discretion to impose a life sentence if the seriousness of the offence or the previous criminal record of an offender warrants it. The minimum term order must specify a minimum term, commonly referred to as a tariff, which the person is required to serve in custody before being considered for release by the Parole Board. The amendments change the starting point for the determination of the minimum term to at least two-thirds of the equivalent determinate sentence or custodial term of such sentence. The changes will apply to any sentence that is imposed after the provision comes into force, including in respect of offences committed before the provision comes into force.
	Subsection (1)(a) inserts new subsections (1A) to (1C) into section 323 of the Code.
	New subsections (1A) and (1B) of section 323 set out that the starting point in determining the minimum term is the relevant portion of the notional determinate sentence. The notional determinate sentence is the custodial sentence that the court would have imposed if the court had not imposed a discretionary life sentence.
	New subsection (1C) of section 323 defines the relevant portion depending on the notional determinate sentence. Paragraph (a) provides that if the notional determinate sentence would be a determinate sentence that attracts no early release before the end of the appropriate custodial term, then the relevant portion is the whole of the appropriate custodial term that the court would have determined for such a sentence. Determinate sentences that attract no early release in this regard are extended determinate sentences (imposed under sections 254, 266 or 279 of the Code) and serious terrorism sentences (imposed under sections 268A or 282A of the Code) where, in accordance with section 247A(2) of the CJA 2003, the early release provisions of that section do not apply. Paragraph (b) provides that if the notional determinate sentence would be any other extended determinate sentence that is not within paragraph (a) or a sentence of particular concern (imposed under sections 252A, 265, or 278 of the Code) then the relevant portion is two-thirds of the appropriate custodial term that the court would have determined for that sentence. Paragraph (c) provides that if the notional determinate sentence is any other custodial sentence, then the relevant portion is two-thirds of the term that the court would have determined for that sentence.
	Subsection (1)(b) amends subsection (2) of section 323 of the Code. It provides that the minimum term must be the starting point (as determined in accordance with new subsections (1A)-(1C)) adjusted as the court considers appropriate, which retains judicial discretion to adjust the starting point for the minimum term where the court considers appropriate. Once the appropriate starting point is determined, the court then takes into account the matters set out in existing paragraphs (a) and (c). Paragraph (a) concerns the seriousness of the offence or the combination of the offence and one or more offences associated with it. Paragraph (c) concerns the crediting of periods on remand or similar. The section omits section 323(2)(b), which was the previous provision by which the court considered the release provisions that applied to determinate sentences against release for those subject to a discretionary life sentence.
	Subsection (2) amends section 261A of the Armed Forces Act 2006. That section provides that section 323 of the Code applies as if references to a court include the Court Martial and subject to amendments as it applies in relation to a life sentence passed by the Court Martial. The section amends section 323 as it applies to a Court Martial to refer to the equivalent sentencing provisions of the Armed Forces Act 2006 in place of the sentencing provisions referred to in new section 323(1C)(b) above.
	Subsection (3) makes consequential amendments to the Code and the Armed Forces Act 2006 regarding the prospective abolition of sentences of detention in a young offender institution.