The Looming Landmine of s 281(5): Doubling maximum sentences.
What is Section 281(5)?
Lurking amongst many criminal offences, ready to be triggered by a commencement regulation, are references to s.281(5) Criminal Justice Act 2003. This section extends the maximum sentence for summary offences, whose previous (or rather current) maximum was 6 months, to 51 weeks. The relevant part reads as follows:
(4) Subsection (5) applies to any summary offence which—
(a) is an offence under a relevant enactment, and
(b) is punishable with a maximum term of imprisonment of six months.
(5) The maximum term of imprisonment to which a person is liable on conviction of an offence to which this subsection applies is, by virtue of this subsection, 51 weeks (and the relevant enactment in question is to be read as if it had been amended accordingly).
The number of offences this section may affect are numerous and wide ranging. For my own interest, many protest related offences are affected, including locking on,[1] going equipped to tunnel,[2] obstructing major transport works,[3] breaching conditions imposed by police if an organiser of a protest,[4] inciting another to breach conditions imposed by a police officer,[5] and wilful obstruction of the highway[6] – among others.
Is s.281(5) in Force?
However, there appears to be some confusion whether this section is in force. When I first looked at the relevant section of the legislation on the Gov website, there was no clear indication. It is also not clear how one can discover whether it was in commencement at passing. However, digging a little deeper you can find s.336 which stipulates the sections that came into force with the passing of the Act. S.281 is not one of them. The only parts of this section which have been commenced are subsections 7 and 8 (via statutory instrument in 2022), which do not relate to maximum sentences under sub section 5.
However, an online search returns various opinions on its status. Google’s own AI summary states that the section is in force – an indication, if one were needed, that relying upon these AI summaries is unwise. There is even guidance published on the Public Order Act 2023 by a notable chambers which states that s.281(5) has been commenced. Westlaw marks the entire of s.281 as not yet being in force – which is also wrong, as sections 7 and 8 now are.
The result was that it took me a short while to figure out the real status of s.281(5), when it shouldn’t be that difficult. Especially when one considers the very considerable impact it can have on the maximum sentences of many offences. The provision applies to any summary offence with a max sentence of 6 months enacted before the 2003 Act was passed. Subsequent legislation has always referred to the difference in sentencing powers dependent upon the commencement of s.281(5), and they are littered throughout a wide range of offences including – prohibition of export of livestock for slaughter,[7] false communication,[8] possession of a dangerous knife,[9] and sale of corrosive substances to a person under 18.[10] These are only a few of the offences enacted since 2003 with reference to this, and do not include all the offences enacted before the Criminal Justice Act was passed. How one is able to find those, unless on a case by case / as needs basis, I don’t know.
A silent trigger?
The power to effectively double the maximum sentence of all these offences now rests with the secretary of state when passing regulations to bring s.281(4) and (5) into force. The potential to increase the maximum sentence in this way is akin to placing a litany of landmines across a landscape, ready to trigger them all simultaneously by the use of a single button. Except, there will be no fanfare when this section is commenced. How would anyone know that commencement regulations had been passed, aside from linking through from the offence in question to s.281 of the Criminal Justice Act (assuming such a link exists in legislation that pre-dates the Criminal Justice Act) and then scrolling through to find whether commencement regulations have been passed – assuming they understood that they were not in force to begin with.
I would suggest that if/when the Government decides to commence s.281(5), that they publicise it widely. The sheer number of offences that it will affect make it a serious issue, especially for protesters. People need to know what the consequences of their actions will be in advance. It is an uncontroversial facet of the rule of law. Better yet, given the prison capacity crisis currently ongoing, s.281(5) could be repealed, and any attempt to increase the maximum sentence for these offences should be abandoned.
[1] Public Order Act 2023 (POA 2023), s 2.
[2] POA 2023, s.5.
[3] POA 2023, s.6.
[4] Public Order Act 1986 (POA 86), ss 12(8), 14(8).
[5] POA 86, s 12(10), s 14 (10), 14ZA(12).
[6] Highways Act 1980, s 137.
[7] Animal Welfare (Livestock Exports) Act 2024, s 1.
[8] Online Safety Act 2023, s 179.
[9] Offensive Weapons Act 2019, s 44.
[10] Offensive Weapons Act 2019, s 1.
