Life Sentence for Second Serious Offence
| DOI | http://doi.org/10.1177/002201839906300528 |
| Published date | 01 October 1999 |
| Date | 01 October 1999 |
| Subject Matter | Article |
The
Journal
of
Criminal
Law
matters mentioned above.
It
remains true, however, that,
whether
or
not
the evidence is put before the jury, the solicitor's statement of
reasons,
if
accepted expressly or implicitly by the defendant is,
and
must
remain, awaiver of privilege, Thus,
if
it is to be excluded from evidence,
some reason other
than
privilege must be found for that exclusion. In
pursuit of such further reasons, the defendant may ask the judge to hold
a trial within a trial, to determine
whether
the advice to remain silent
was reasonable or whether his silence on any particular matter was
reasonable;
but
he has no right that
any
such procedure shall be fol-
lowed: see RvArgent (1997)2 Cr App R 27.
Life Sentence for Second Serious Offence
R v Kelly (Edward); R v Sandford [1999J 2 WLR 1100
R v Kelly
The appellant was convicted of wounding with intent to do grievous
bodily
harm
contrary to s 18 of theOffences against the Person Act 1861,
which offence is designated as 'serious' in s 2(5) of the Crime (Sentenc-
ing) Act 1997. He had previously been convicted of robbery with a
firearm (another 'serious' offence), so that, by reason of s 2 of the 1997
Act, he qualified for an automatic life sentence. The judge who passed
the life sentence specified, for the purpose of s 28 of
the
Act, four years
as the appropriate term to be served. He
had
specificallyfound that there
were no 'exceptional circumstances' within the meaning of the Act.
Section 2 of the Crime (Sentencing) Act 1997 provides that on con-
viction of a second serious offence the court shall impose a life sentence
unless there are exceptional circumstances relating to the offence or to
the
offender. In subs (5) an offence contrary to s 18 of
the
1861 Act is
included in the list of offences which are to be regarded as 'serious' for
the
purpose of the Act.
On appeal, it was argued that: (1) there were 'exceptional circum-
stances' in relation to the offence and the offender, namely,
the
defend-
ant's
youth
at the time of the first offence, the long interval between the
two offences, the fact that neither offence was a particularly grave
example of the offence in question,
and
the fact that the offender was
not
regarded as 'dangerous'; (2) also the punishment was
not
only
disproportionate, but was also contrary to the European Convention on
Human Rights
and
imposed a retrospective penalty contrary to Article 7
of
the
Convention. Indeed, it was argued that the power to impose a life
sentence under the 1997 Act in such circumstances is contrary to
Articles 3
and
7 of
the
Convention.
HELD,
ALLOWING
THE
APPEAL
IN
PART.
1. The judge had correctly imposed the obligatory life sentence,
because the matters pleaded by the appellant could not, either indi-
vidually or cumulatively,
amount
to 'exceptional circumstances'
under
446
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