A common question in Criminal Courts dealing with offences of domestic burglaries, that is, burglaries of homes/dwellings, is whether they are covered by the ‘Three Strike Rule’.
The more legal term for this rule is Section 314, Sentencing Act 2020. The application of the rule will have a significant impact upon the alleged offender, therefore proper understanding of its scope is vital.
When Does it Apply?
The rule applies only to situations where:
- A person is convicted of a domestic burglary (Committed on or after 28th June 2022).
- The person was 18 or over when the offence was committed.
- The person has two other ‘relevant domestic burglary convictions’ – That is convictions for domestic burglary committed on or after 1st December 1999.
What Does it Do?
The major effect of the rule, is that it imposes a mandatory minimum sentence of 3 years imprisonment for that third domestic burglary conviction, regardless of the seriousness of the offence.
An additional caveat of this rule, is that any trial for that third offence is triable only on indictment. This means that it can only be tried at the Crown Court and by a jury – It cannot be dealt with by the Magistrates Court.
How can it be avoided?
Importantly, the law specifies that the mandatory minimum of 3 years can be avoided where there are:
- Exceptional circumstances which relate to any of the offences or the offender, and those circumstances-
- Would make unjust to impose the mandatory minimum sentence.
This naturally begs the question, when are those circumstances “exceptional”? It appears the bar to what the courts’ consider exceptional, is particularly high.
For example, in R v Swinbourne [2023] EWCA Crim 906, the Court stated that the offender’s genuine remorse, cooperation with investigation and efforts to address drug addiction were not enough to meet the threshold of being truly exceptional and to disapply the mandatory minimum.
Therefore, it’s clear that the circumstances raised by an individual facing the ‘Three-Strike Rule’, must go beyond typical mitigation, but ultimately reach a point where it would make the 3-year sentence completely arbitrary and disproportionate.
Concluding Remarks
The Three Strike Rule is certainly a crucial, and potentially significantly impactful provision in criminal justice. Entering its 6th year in force, it has not been immune to debates over its ongoing relevancy.
In light of the undeniable pressures on overpopulated prisons and heightened reoffending rates, some would criticise the overreaching effect of previous convictions which are up to 26 years old.
Regardless, every indication shows it is a provision that is here to stay, and effective understanding if its scope and application is essential to those potentially facing it.