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s 226 and 228 CJA 2003 need abolishing or serious curtailing

Comment 22nd August 2010

Sections 226 and 228 Criminal Justice Act 2003 are the ones that provide for extended and indefinite sentences for public protection. This legislation was supposed to demonstrate the last government's ferocious approach to tackling crime and to respond to public concern about 'dangerous criminals' being released to molest the law abiding. The guidance that accompanied them was hopelessly broad and the provisions have been grossly overused. it is time to review them and, ideally, repeal them.

Why does this matter?

Yes, some – a very few – people get to the end of their sentence and still represent a danger. But in a civilised society that is governed by the rule of law we cannot lock people up on the offchance that they might commit a serious crime. Detention should only ever be in accordance with the rule of law, after due judicial process. Of course, this may be a process other than criminal, e.g. mental health, but it is important that any deprivation of liberty is very carefully scrutinised and very bounded by clear and transparent legislation.

These sections provide for arbitrary detention on shaky grounds and certainly breach our obligations under the UN Convention on Human Rights. Indefinite sentences in particular breach the provisions about fair and transparent legal processes and could be regarded as cruel and inhumane.

These sections have contributed very significantly to the present prison overcrowding. The provisions have resulted in many low risk prisoners having extended and indeterminate sentences because judges have been encouraged to 'play safe' but it is people's lives that are being played with.

IF – and with this government anything sensible is an enourmous if – this govt is serious about reducing the prioson population, this is definitley a place to look.

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