R v C (P)

JurisdictionEngland & Wales
JudgeThe Lord Chief Justice
Judgment Date26 November 2008
Neutral Citation[2008] EWCA Crim 2790
Docket NumberCase No: 2008/04502/A6 (1) 2008/04551/A1 (3) 2008/04542/A7 (4) 2008/04444/A9 (5) 2008/04418/A7 (6) 2008/04492/A4 (7) 2008/04325/A7 (8) 2008/04338/A7 (9)
CourtCourt of Appeal (Criminal Division)
Date26 November 2008

[2008] EWCA Crim 2790

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT GUILDFORD

HIS HONOUR JUDGE ADDISON (1)

ON APPEAL FROM THE CROWN COURT AT CANTERBURY

HER HONOUR JUDGE W (2)

ON APPEAL FROM THE CROWN COURT AT BRADFORD

HIS HONOUR JUDGE MCCALLUM (3)

ON APPEAL FROM THE CROWN COURT AT TEESSIDE

HIS HONOUR JUDGE BOWERS(4)

ON APPEAL FROM THE CROWN COURT AT SOUTHAMPTON

HIS HONOUR JUDGE BURFORD QC (5)

ON APPEAL FROM THE CROWN COURT AT NEWCASTLE

HER HONOUR JUDGE BOLTON (6)

ON APPEAL FROM THE CROWN COURT AT ST ALBANS

HIS HONOUR JUDGE FINDLAY-BAKER QC (7)

ON APPEAL FROM THE CROWN COURT AT BLACKFRIARS

HIS HONOUR JUDGE MARRON QC (8)

ON APPEAL FROM THE CROWN COURT AT NEWCASTLE

HER HONOUR JUDGE BOLTON (9)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Lord Chief Justice

Mr Justice Owen and

Mr Justice Sweeney

Case No: 2008/04502/A6 (1)

2008/04591/A1 (2)

2008/04551/A1 (3)

2008/04542/A7 (4)

2008/04444/A9 (5)

2008/04418/A7 (6)

2008/04492/A4 (7)

2008/04325/A7 (8)

2008/04338/A7 (9)

Between
(On a Reference by the Attorney General)
R
and
C (1)
R
and
Co (2), P (3), D (4), W (5), Rickman (6), Andrews (7), Forbes (8) and Douglas (9)

Mr P. Wright QC and Mr O. Glasgow for the Attorney General on the Reference

And for the Respondent in the remaining cases

Mr A Turton for C (1)

Miss T Robinson for CO (2)

Mr N. Bashir for P (3)

Mr B. Russell for D (4)

Mr D. Reid for W (5)

Mr M Giuliani for Rickman (6)

Miss N Cafferkey for Andrews (7)

Mr T Smith for Forbes (8)

Mr C. Mitford for Douglas (9)

Hearing date: 14th October 2008

The Lord Chief Justice

The Lord Chief Justice:

1

These nine otherwise unrelated cases were listed together to enable the court to consider and review the amendments made by the sections 13–18 of the Criminal Justice and Immigration Act 2008 (the 2008 Act) to Chapter 5 of Part 12 of the Criminal Justice Act 2003 (the 2003 Act).

2

The relevant provisions of the 2003 Act and the 2008 Act amendments were brought into force on 4 April 2005 and 14 July 2008 respectively. These far reaching amendments were expressly declared, by paragraph 2 of Schedule 2 of the Criminal Justice and Immigration Act 2008 (Commencement No 2 and Transitional and Saving Provisions) Order 2008 ( SI 2008 No. 1586) not to have effect in relation to any person sentenced under any of the provisions of sections 225–228 of the 2003 Act before 14 July 2008. The date when an offender is brought before the court and sentenced is largely accidental and depends on the needs and business, and the overall interests of victims and witnesses, as well as defendants, in each Crown Court. The effect of the transitional provisions is that an offender sentenced before 14 July 2008 (and any appeal by him to this court) is governed by sections 225–228 of the 2003 Act (provided the offences were committed after 4 April 2005) and that after 14 July 2008 the amended sentencing regime found in sections 13–18 of the 2008 Act applies.

3

The first case, a Reference by Her Majesty's Attorney General, illustrates some of the complications. C committed offences before and after 4 April 2005. For those committed before that date, the relevant sentencing provisions are contained in a number of statutes, of which the Powers of Criminal Courts (Sentencing) Act 2000 and the Sexual Offences Acts 1956 and 2003 are the most important. A sentence of imprisonment for public protection or an extended sentence under the 2003 Act could not be imposed. For offences committed after 4 April 2005, the Sexual Offences Act 2003 (brought into force on 1 May 2004) and the Criminal Justice Act 2003 (brought into force on 4 April 2005) effectively govern the relevant sentencing decision, although the Powers of Criminal Courts (Sentencing) Act from time to time, continues to be relevant. For these offences a sentence of imprisonment for public protection or an extended sentence would, if appropriate, be available in accordance with the regime created by the 2003 Act itself. However where the offender is sentenced after 14 July 2008 (for whatever reason including the demands on the court, the illness of witnesses, the length of any trial, a sentence delayed because the offender deliberately absented himself) the 2003 Act is to be applied as amended by the 2008 Act, rather than its original form. It is perhaps worth noting that the amendments brought about by the 2008 Act do not impinge on the long established principle, now enshrined in statute, that the court is required to have “regard” to “protection” of the public as one of the purposes of sentencing (section 142 of the 2003 Act).

4

We highlight the continuing statutory provisions relevant to the determination of the seriousness of the offence (sections 143, 145 and 146 of the 2003 Act in particular) and the concept of “associated” offences as defined in section 305 (1) of the 2003 Act adopting 161(1) of the Powers of Criminal Courts (Sentencing) Act 2000. This provides:

“…an offence is associated with another if

(a) the offender is convicted of it in proceedings in which he is convicted of the other offence, or (although convicted of it in earlier proceedings, is sentenced for it at the same time as he is sentenced for that offence) or

(b) the offender admits the commission of it in the proceedings in which he is sentenced for the other offence and requests the court to take it into considering when sentencing him for that offence.”

We note in passing section 19 of the 2008 Act which amends section 82A of the 2000 Act with its new and far from uncomplicated framework for setting tariffs in discretionary life sentences, and imprisonment for public protection.

Discretionary Life Imprisonment

5

Section 225 (1) and (2), as they bear on the discretionary sentence of life imprisonment, are unamended. The court must consider whether the seriousness of the offence, or the offence and one or more associated offences, justifies the sentence. If it does, however much judicial discretion (or more accurately, judgment) has been introduced into the assessment of dangerousness by the removal of the statutory assumption, or in relation to the imposition of imprisonment for public protection or an extended sentence, a sentence of imprisonment for life “must” be imposed if the conditions in section 225 (1) and (2) are established. In the present group of cases, that requirement was not followed in P. The decision whether to pass such a sentence continues to be informed by the considerations identified in R v Kehoe [2008] EWCA Crim 819.

Assessment of Dangerousness

6

The first striking feature of the amendments is that under section 229 of the 2003 Act, the court's assessment of dangerousness was subject to a prescriptive and unhelpful statutory assumption (S229(3)) in relation to the risks identified in S229(1), to be applied unless to do so would be unreasonable. It is worthy of immediate notice that the statutory assumption of dangerousness in section 229(3) has disappeared. No court will mourn its departure. Its judgment of dangerousness can now be made untrammelled by artificial constraints. That said, the sentencing option of imprisonment for public protection in the appropriate case remains an important sentencing alternative available to the court.

Imprisonment for Public Protection

7

In making its judgment, it is perhaps worth repeating and emphasising that the principles identified and explained in R v Johnson and others [2007] 1 CAR (S) 112 are unchanged. The sentence of imprisonment for public protection

“is concerned with future risks and public protection. Although punitive in its effect, with far reaching consequences for the offender on whom it is imposed, strictly speaking, it does not represent punishment for past offending…when the information before the court is evaluated, for the purposes of this sentence, the decision is directed not to the past, but to the future, and the future protection of the public.”

8

Archbold News, Issue dated 6 June 2008, includes a feature by Dr David Thomas QC entitled “IPP Amended”. The author is in his characteristic, irrepressible form, and unsurprisingly so: long ago before the 2003 Act itself came into force, he anticipated that the amending provisions now found in the 2008 Act, or something very like them, would inevitably be required. Events have proved him right. We are grateful to him for his commentary, and begin by recording section 225 of the 2003 Act in its amended form, and as modified by the Criminal Justice Act 2003 (Sentencing) (Transitory Provisions) Order 2005 (SI 2005 No. 643) and the Criminal Justice and Immigration Act 2008 (Transitory Provisions) Order 2008 (SI 2008 No. 1587).

“(1) This section applies where

(a) a person aged 18 or over is convicted of a serious office committed after the commencement of this section, and

(b) the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.

(2) If –

(a) the offence is one in respect of which the offender would apart from this section be liable to imprisonment for life, and

(b) the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life,

the court must impose a sentence of imprisonment for life or, in the case of a person aged at least 18 but under 21, a sentence of custody for life

(3) In a case not falling within sub-section (2), the court may impose a sentence of imprisonment for public protection or, in the case of a person aged at least 18 but under 21, a sentence of detention in a young offender institution for public protection if the condition in sub-section (3A) or in sub-section (3B) is met.

(3A)The condition is this sub-section is that,...

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