R v Dean Pedley and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes |
| Judgment Date | 14 May 2009 |
| Neutral Citation | [2009] EWCA Crim 840 |
| Docket Number | Case No: 2008 04933 A6 |
| Court | Court of Appeal (Criminal Division) |
| Date | 14 May 2009 |
[2009] EWCA Crim 840
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BIRMINGHAM, STAFFORD and NEWCASTLE CROWN COURTS
HHJ EVERARD, HHJ TONKING and HHJ BOLTON
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hughes
and
Mr Justice King
and
The Common Serjeant, His Honour Judge Barker QC
Case No: 2008 04933 A6
T2005 7399 T2006 7188 & T2006 7078
Mr Edward Fitzgerald QC/Mr James Dixon (instructed by Registrar of Criminal Appeals) for the Appellant Dean Pedley
Mr Edward Fitzgerald QC/Mr James Dixon (instructed by Registrar of Criminal Appeals) for the Appellant Lee Martin
Mr Edward Fitzgerald QC/Mr James Dixon (instructed by Michael Henderson, Solicitor) for the Appellant Zeeyad Hamadi
Mr Victor Temple QC/Mr Timothy Gittins (instructed by CPS) for the Respondent
Mr Steven Kovats (instructed by the Treasury Solicitor) for the Secretary of State for Justice
Hearing dates: 26.02.2008
Lord Justice Hughes:
These cases have been listed together before us. They give rise to a similar double issue of general application, namely:
i) the proper construction of the 'significant risk' test created by section 225 Criminal Justice Act 2003 for passing sentences of imprisonment for public protection (“IPP”) or other indeterminate sentences; and
ii) the compatibility of sentences passed according to that test with the European Convention on Human Rights.
In the case of Hamadi a quite separate question arises whether it is possible for this court to re-hear a concluded appeal against sentence.
We are also invited to determine on their individual merits the imposition of IPP sentences in each case; in that of Hamadi the merits arise only if his case can indeed be re-opened.
The statute
We are here concerned with section 225 of the Criminal Justice Act 2003 as it existed before its recent amendment by the Criminal Justice and Immigration Act 2008. As is well known, the principal effect of the amendments is to make the passing of IPP or other indeterminate sentences discretionary rather than mandatory, to remove the statutory assumption of risk, and to narrow the range of situations in which such sentences are available. But section 225(1), containing in section 225(1)(b) the 'significant risk' test, is unaffected by the amendments.
Both prior to and since amendment, section 225(1) provides as follows:
“(1) This section applies where: –
(a) a person aged 18 or over is convicted of a serious offence 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.”
As the statute stood prior to amendment, if these two tests were met, a sentence of IPP was mandatory unless the case justified a life sentence. Now, these two tests remain essential pre-conditions to the passing of a sentence of IPP, but such a sentence is mandatory rather than discretionary, and moreover is available only if one or other of the new additional conditions set out in new subsections (3A) and (3B) is also satisfied.
For the purposes of section 225(1), a 'serious offence' is one of those listed in Schedule 15 and carrying a maximum sentence of 10 years or more. And a 'specified offence' is any offence listed in the schedule.
Importantly, 'serious harm' is defined in the statute, by section 224, as:
“death or serious personal injury, whether physical or psychological.”
Identically worded 'significant risk' tests also govern the making of the other 'dangerous offender' sentences provided for by Chapter 5 of Part 12 of the 2003 Act: see section 226(1) (detention for public protection of persons under 18) section 227(1) (extended sentences for adults) and section 228(1) (extended sentences for those under 18).
“Significant risk” and ECHR compatibility.
For the defendants, Mr Fitzgerald QC submits:
i) that 'significant risk…of serious harm' should be construed to mean that serious harm is more likely than not to follow; alternatively
ii) that 'significant risk…of serious harm' should be construed to mean that there must be a 'high risk' of serious harm, which he puts as meaning something of the order of 35–50% probability of it;
and in either event
iii) unless the statute is construed in one of those ways its provisions are not compatible with either article 3 or article 5(1) of the Convention, because the punishment imposed will be arbitrary and/or disproportionate.
Article 3 prohibits “torture or inhuman or degrading treatment or punishment.” Article 5(1) requires that “No-one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.” One of the permitted cases is “(a) the lawful detention of a person after conviction by a competent court.”
Mr Fitzgerald's argument is that section 225(1), unless read as he says it should be, is incompatible with one or both articles because:
i) it imposes a threshold which is so low that the imposition of an IPP will in a number of cases amount to disproportionate punishment, constituting inhuman or degrading treatment; and/or
ii) it imposes a threshold which is so uncertain that it results in arbitrary punishment, which contravenes the requirement of article 5 that punishment be in accordance with a procedure prescribed by law.
Mr Fitzgerald understandably stresses the nature of an IPP sentence. We agree that, as Rose LJ observed in Lang [2005] EWCA Crim 2864, [2006] 2 Cr App R(S) 3 at 13, (paragraph 8), an IPP has a great deal in common with a life sentence. Its justification is the protection of the public. It is indeterminate. Release depends on the judgment of the Parole Board as to the risk which the prisoner presents. The court must fix a minimum term before which release cannot be considered, calculated by reference to the hypothetical determinate term which would have been called for if the indeterminate sentence were not being passed. All those features it shares with a discretionary life sentence.
Nevertheless, the Act preserves, by section 225(2), the distinction between a discretionary life sentence and an IPP. This court held in Lang (paragraph 8) that the common law principles on which discretionary life sentences are imposed, as explained in the line of cases containing, among others, Hodgson (1968) 52 Cr App R 113, Attorney-General's Reference No 32 of 1996 (Whittaker) [1997] 1 Cr App R (S) 261 and Chapman [2000] 1 Cr App R 77, continue to apply. In effect a discretionary life sentence is justified only where the instant offence is particularly grave and the future risk is of particularly grave harm. As Lord Bingham observed in Lichniak [2003] 1 AC 903 at paragraph 14, in the context of a mandatory life sentence for murder, the life sentence has a denunciatory value. And there are at least two formal differences between the two sentences. In the case of an IPP the Parole Board may direct that supervision under licence shall come to an end 10 years after release; in the case of any life sentence, supervision remains lifelong. And in the case of a life sentence (but not an IPP) it is open to the court if, very exceptionally, necessity for such an order be shown, to make a whole life order, directing that the early release provisions shall not apply: s 82A(4) & (4A) Powers of Criminal Courts (Sentencing) Act 2000.
We agree with Mr Fitzgerald that the nature of an IPP sentence must be kept in mind when assessing whether the risk for the future is significant. This is an indeterminate sentence. Its justification is, by the statute, grounded in the necessity to protect the public not simply from re-offending, which sadly is often a fact of life, but from serious harm being caused by the defendant in the future. The requirement that there must be a significant risk not only of re-offending, but of harm that can properly be called serious, must not be watered down. That emerges very clearly from the practical advice to sentencers contained in paragraph 17 of Lang, all of which we re-endorse.
The question whether the risk of serious harm is, in any individual case, significant so as to justify an IPP sentence, is highly fact-sensitive. It must remain a decision for the careful assessment of the judge before whom the case comes. He will need to consider all the information he has about the defendant: see section 229 and Considine and Davis [2007] EWCA Crim 1166; [2008] 1 Cr App R (S) 41. The focus is, as explained in Johnson [2006] EWCA Crim 2486; [2007] 1 Cr App R (S) 112, not principally upon the facts of the instant case but upon future risk.
All the parties before us agreed that in addressing the question whether the risk of serious harm is significant the Judge is entitled to balance the probability of harm against the nature of it if it occurs. The harm under consideration must of course be serious harm before the question even arises. But we agree that within the concept of significant risk there is built in a degree of flexibility which enables a Judge to conclude that a somewhat lower probability of particularly grave harm may be significant and conversely that a somewhat greater probability of less grave harm may not be.
We do not, however, agree that it follows that there is any justification for attempting a re-definition of the plain English expression 'significant risk… of serious harm”. There is no occasion to re-write the statute as Mr...
To continue reading
Request your trial
-
R v Wilkinson and Others
...for if the indeterminate sentence were not being passed. All those features it shares with a discretionary life sentence�. ( R v Pedley, Martin and Hammody�. Both sentences therefore address future dangerousness and public protection from the predictive danger posed by the offender. 17 Once......
-
R (Sturnham) v Parole Board & Secretary of State for Justice
...minor offences. Moreover C [2009] 1 WLR 2158 reminds us, as Mr Southey pointed out, that IPP is concerned with future risk. R v Pedley [2009] 1 WLR 2517 states at paragraph 22 that the IPP prisoner will be released "once the significant risk no longer exists." All these cases, it is to be......
-
R v Mohammed Abdullah Yasain
...the court is at this point functus officio and will not re-hear an appeal, as it has no general jurisdiction to do so: Cross at page 940; R v Pedley [2009] EWCA Crim 840, [2009] 1 WLR 2517 at paragraphs 24–28, and Blackwood at paragraph 16. (c) The power to revise an order when it has been......
-
R (on the application of Sturnham) v The Parole Board of England and Wales and another (No. 2)
...'significant risk' in terms of numerical probability, whether as 'more probable than not' or by any other percentage of likelihood": R v Pedley [2009] EWCA Crim 840, [2009] 1 WLR 2517, para 18 Other authority also indicates that the criteria for imposing a discretionary life sentence are ......
-
Challenging the Ongoing Injustice of Imprisonment for Public Protection: James, Wells and Lee v The United Kingdom
...meant more than apossibility. Significance implied it had to be ‘noteworthy, of considerable amount or importance’.In Pedley [2009] 1 WLR 2517 the Court of Appeal refused to redefine the test in terms of numericalprobability. Earlier case law suggests that, in this context, references to ‘mem......