Christopher John Thompson v The Queen
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson P |
| Judgment Date | 27 March 2018 |
| Neutral Citation | [2018] EWCA Crim 639 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 2017 01043 A1; 2017 04031 A1; 2017 02072 A2; 2017 00188 A4,2017/01043/A1; 2017/04031/A1; 2017/02072/A2; 2017/00188/A4 |
| Date | 27 March 2018 |
[2018] EWCA Crim 639
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURTS AT TEESIDE, CANTERBURY, NORWICH & LINCOLN
Judges Crowson, O'Mahony, Bate & Heath
(1) T20157517, 0476, 0942, T20167115
(2) T20167207 (3) T20157245 (4) T2015 0325
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Lord Justice Treacy
Mrs Justice Carr D.B.E.
Mrs Justice Yip D.B.E
and
Sir Peter Openshaw
(sitting as an additional judge of the Court of Appeal)
Case No: 2017 01043 A1; 2017 04031 A1; 2017 02072 A2; 2017 00188 A4
Brendan Carville for Christopher John Thompson
Siobhan Molloy for Tajsharn Cummings
Robert Banks for Oscar Fitzgerald
Sam Robinson and Isabel Wilson for Richard Ford
Jonathan Polnay for the Crown in each case
Hearing dates: 8 March 2018
These four otherwise unconnected appeals have been listed together as each potentially raises an issue in relation to the effect of s. 11(3) of the Criminal Appeal Act 1968 (“the 1968 Act”) which requires this court, on an appeal against sentence, to exercise its powers such that “taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below”. Articulating the issue with reference to the specific sentences that may give rise to the issue, it is about the extent to which this court can substitute what is a standard determinate sentence with (i) a special custodial sentence for offenders of particular concern under s. 236A of the Criminal Justice Act 2003 (“the 2003 Act”); (ii) an extended sentence under s. 226A or B of the 2003 Act; or (iii) a hospital order with restriction or hybrid order under s. 37 and 41 or 45A of the Mental Health Act 1983.
A further issue of principle arises in respect of the proper interpretation of s. 226A(8) of the 2003 Act which provides that the extension period of an extended sentence must not exceed 5 years in the case of a specified violent offence and 8 years in the case of a specified sexual offence. In short, the question is whether if (as will be comparatively rare), the court imposes consecutive extended sentences, the 5 or 8 years' extension is the maximum permitted for the total sentence or whether it is possible to order extension periods also to run consecutively.
The Legal Framework
In order to understand the background to this challenge it is necessary to identify the statutory consequences of different custodial sentences open to the court. Thus, subject to the offender not having been awarded ‘added days’ for breach of prison or institution rules, if sentenced to a term of imprisonment, detention in a young offender institution or to detention pursuant to the provisions of s. 91 of the Powers of Criminal Courts (Sentencing) Act (i.e. a standard determinate sentence), he will automatically be released on licence at the half way point of the sentence: see s. 244 of the 2003 Act. Breach of the terms of the licence (which may be by the commission of a further offence or by failure to comply with a specific condition in the licence e.g. of residence) may lead to the Secretary of State revoking the licence and recalling the offender to custody to serve part or the remainder of the unexpired sentence (s. 254 of the 2003 Act). What is critical, however, is that release at the half way point is not subject to the exercise of any discretion on the part of the authorities.
This right is to be contrasted with the different (and conditional) rights to release that are engaged in the event that an offender is sentenced to a special custodial sentence for offenders of particular concern or an extended sentence under s. 236A and s. 226A or B of the 2003 Act respectively. Subject, again, to ‘added days’ for disciplinary breaches, following the imposition of such a sentence, the offender will be released at the half way point (in the case of a special custodial sentence for offenders of particular concern) or at two thirds (in the case of an extended sentence) in each case subject to the Parole Board being satisfied that his detention is not necessary for the protection of the public. If the Board is not so satisfied, the case will be reviewed two years thereafter; ultimately, however, if not released on parole, the offender will only be entitled to be released unconditionally having served the entire custodial term. Breach of the terms of the licence can lead to recall (as for standard determinate sentences).
The position in relation to orders under the Mental Health Act 1983 is different. If an offender, subject to a hybrid order pursuant to s. 45A in conjunction with a determinate or extended sentence, has been returned to prison as treatment is no longer required, eligibility for release is the same as if the sentence imposed had been the determinate or extended sentence alone. If the offender remains in hospital, the limitation direction (or restriction order) expires on the date that the offender would have been released on licence (i.e. directed by the parole board in the case of an extended or indeterminate sentence) but he will remain in hospital until considered well enough to be discharged following the normal application of the relevant principles governing the discharge of patients detained under the Act.
Although the release provisions from differing sentences are highly significant for the offender, it is important to underline the limited role that they have in the sentencing process. Thus, in relation to an extended sentence passed pursuant to s. 226A or B of the 2003 Act, the appropriate custodial term is specified as that term that would have been imposed in compliance with s. 153(2) which provides that:
“….the custodial sentence must be for the shortest time (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence….”
This requirement to identify the custodial part of any extended sentence is underlined by s. 126(4) of the Coroners and Justice Act 2009 which (in the context of the duty to follow relevant sentencing guidelines) defines the notional determinate term as:
“… the determinate sentence that would have been passed in the case if the need to protect the public and the potential danger of the offender had not required the court to impose a life sentence…. or, as the case may be, an extended sentence of imprisonment or detention.”
It is also worth noting that the phrase ‘appropriate custodial term’ for a special custodial sentence passed on an offender of particular concern pursuant to s. 236A is defined in the same way as “the term that, in the opinion of the court, ensures that the sentence is appropriate”. In our judgment, this does not require the court to approach the assessment of the length of the custodial term other than as the shortest time that is commensurate with the seriousness of the offence: the difference in language, therefore, has no material effect on the approach of the court.
This conclusion is not merely to be derived from the legislation. It is equally clear from a consideration of the authorities which have been careful to identify the general principle in terms. These are summarised in R (Stott) v Secretary of State for Justice [2017] EWHC 214 (Admin) (at [1]) in these terms:
“It is well recognised that “the general principle that early release, licence and their various ramifications should be left out of account on sentencing is … a matter of principle of some importance”: see R v Round [2009] 2 Cr App R (S) 292; [2009] EWCA Crim 2667 at [44] per Hughes LJ, reaffirmed in R v Burinskas [2014] 1 WLR 4209; [2014] EWCA Crim 334 at [38]–[39]. One exception relates to the identification of the minimum term when passing any indeterminate sentence (when the normal period of one half of the appropriate determinate term to reflect the need for punishment and deterrence can be varied for good reason: see R v Szczerba [2002] 2 Cr App R (S) 387; [2002] EWCA Crim 440 per Rose LJ at [32]–[33] and the example of R v Hayward [2000] 2 Cr App R (S) 418). Another is those cases which were at the margin of different automatic release provisions when the court could adjust an otherwise unobjectionable sentence to avoid the disproportionality of moving the offender into long term prisoner status: see R v Cozens [1996] 2 Cr App R (S) 321 and R v Harrison [1998] 2 Cr App R (S) 174.”
This approach cannot be considered surprising. When passing sentence, although the effect of a sentence cannot retrospectively be increased, the judge has no way of knowing precisely how the executive may (in the future) adjust the approach to parole (to the benefit of an offender) or alter release provisions whether by reference to concepts such as home detention curfew or executive release. Thus, the general principle is to ignore it save in certain defined circumstances.
When the Court of Appeal has to consider a sentence, however, s. 11(3) of the 1968 Act requires that “taking the case as a whole, the appellant is not more severely dealt”. The potential impact of a sentence on the offender cannot therefore be ignored. Thus, in Thompson (1978) 66 Cr. App. R. 130, the court considered that a sentence of 15 months' imprisonment, suspended for two years (together with a fine and a forfeiture order) was wrong in principle and that an immediate custodial sentence of 9 months should have been imposed. It was recognised, however, that such a sentence would contravene s. 11(3) of the 1968 Act (wrongly referred to in the report as s. 4(3) of the 1968...
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