R v Kelly (Edward)
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 15 December 1998 |
| Neutral Citation | [1998] EWCA Crim J1215-44 |
| Judgment citation (vLex) | [1998] EWCA Crim J1215-45 |
| Docket Number | No. 98/4901/R2,No. 98/3306/Y4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 15 December 1998 |
[1998] EWCA Crim J1215-44
The Lord Chief Justice of England and Wales
(Lord Bingham of Cornhill)
Mr Justice Forbes
and
Mr Justice Harrison
No. 98/3306/Y4
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
MR WILLIAM CLEGG QC and MR J STURMAN appeared on behalf of THE APPELLANT
MR DAVID PERRY appeared as AMICUS CURIAE
Tuesday 15 December 1998
The appellant, who is now aged 38, appeals against the sentence of life imprisonment imposed upon him in the Crown Court at Middlesex Guildhall on 1 May 1998. The sentence was passed under section 2 of the Crime (Sentences) Act 1997 following the appellant's conviction by a jury on 19 March 1998 of one count of wounding with intent to cause grievous bodily harm contrary to section 18 of the Offences Against the Person Act 1861. The judge specified 4 years as the term to be served under section 28(2)(b) of the Act. In imposing this life sentence the trial judge concluded that there were no exceptional circumstances which would justify him in not passing such a sentence.
The appellant submits on appeal that the judge was wrong so to conclude. Alternatively, he submits that the relevant provisions of the 1997 Act should be construed in a manner compatible with the European Convention of Human Rights and that, so construed, a discretionary life sentence should not have been imposed. In the further alternative he submits that the term of 4 years specified by the judge was too long.
The section 18 offence of which the appellant was convicted on 19 March 1998 was committed on 14 October 1997. The victim, Mr Alex Humphrey was a commuter who regularly used the Caledonian Road railway station. On 14 October Mr Humphrey was returning home from work via the railway station when he saw a group of about 6 boys in their very early teens bullying a girl. He intervened to stop them. The girl ran away, but the boys diverted their attention to Mr Humphrey, whom they began to taunt and at whom they began to throw stones. After an unsuccessful attempt to chase them off, Mr Humphrey picked up a large stone and threw it at the group of boys, striking one of them. This aggravated the situation and the boys then confronted Mr Humphrey on the platform. Some of them continued to throw missiles at him, while others abused him verbally.
The appellant had been in a shelter on the opposite platform sharing a can of cider with his brother and a woman. One of the missiles struck the shelter and the appellant came out. He asked one of the boys what was going on, and was told that Mr Humphrey had thrown a stone and injured someone. The appellant crossed the tracks to where Mr Humphrey was being confronted by at least two of the group. At this stage the appellant was not acting aggressively, and appeared to be assuming the role of a peacemaker. But he then grabbed Mr Humphrey around the neck, and the two of them fell to the ground. The appellant managed to sit astride Mr Humphrey, and threw a number of punches into his face. The group of boys joined in kicking Mr Humphrey to the head and body and threw stones at his face. The appellant threw a few more punches, then got up, took some steps backwards, and kicked Mr Humphrey (who was still on the ground) in the face about 4 times. The boys joined in the kicking until the group dispersed.
Mr Humphrey suffered a fractured right cheek bone, and for some time after the attack complained of blurred vision and headaches. He lost two teeth and suffers a watery eye.
The appellant was arrested very shortly after this attack and in interview denied the assault, claiming that he had gone to intercede in the argument and had himself been a victim of violence. At the trial he denied the offence but was convicted.
This was a serious offence of violence. Applying the sentencing principles established by sections 1 and 2 of the Criminal Justice Act 1991, any sentencing court would have been bound to impose a custodial sentence of significant length, having regard to the criminality of the appellant, the need to protect the public and all relevant facts concerning the offence and the offender. Abundant guidance on the appropriate length of sentence for such an offence is to be found in the decided cases.
The sentencing régime established by the 1991 Act was, however, modified by the Crime (Sentences) Act 1997. Section 2 of that Act, brought into force on 1 October 1997, provides:
"(1) This section applies where—
(a) a person is convicted of a serious offence committed after the commencement of this section; and
(b) at the time when that offence was committed, he was 18 or over and had been convicted in any part of the United Kingdom of another serious offence.
(2) The court shall impose a life sentence, that is to say—
(a) where the person is 21 or over, a sentence of imprisonment for life;
(b) where he is under 21, a sentence of custody for life under section 8(2) of the Criminal Justice Act 1982 ("the 1982 Act"),
unless the court is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so.
(3) Where the court does not impose a life sentence, it shall state in open court that it is of that opinion and what the exceptional circumstances are.
(4) An offence the sentence for which is imposed under subsection (2) above shall not be regarded as an offence the sentence for which is fixed by law.
(5) An offence committed in England and Wales is a serious offence for the purposes of this section if it is any of the following, namely—
(a) an attempt to commit murder, a conspiracy to commit murder or an incitement to murder;
(b) an offence under section 4 of the Offences Against the Person Act 1861 (soliciting murder);
(c) manslaughter;
(d) an offence under section 18 of the Offences Against the Person Act 1861 (wounding, or causing grievous bodily harm, with intent);
(e) rape or an attempt to commit rape;
(f) an offence under section 5 of the Sexual Offences Act 1956 (intercourse with a girl under 13);
(g) an offence under section 16 (possession of a firearm with intent to injure), section 17(use of a firearm to resist arrest) or section 18 (carrying a firearm with criminal intent) of the Firearms Act 1968; and
(h) robbery where, at some time during the commission of the offence, the offender had in his possession a firearm or imitation firearm within the meaning of that Act.
Sections 3 and 4 of the 1997 Act impose mandatory penalties, of 7 and 3 years respectively, on third conviction of class A drug trafficking offences and domestic burglaries. In each case the third offence, to attract the operation of the respective section, must have been committed after the commencement of the relevant section, at a time when the offender was aged 18 or over, and when he had previously been convicted of two other offences of the same kind; one of those other offences must have been committed after conviction of another; and in the case of domestic burglaries, both the earlier offences must have been committed after the commencement of the relevant section. Both sections oblige the court to impose a custodial sentence of the specified length where the statutory conditions are fulfilled
"except where the court is of the opinion that there are specific circumstances which—
(a) relate to any of the offences or to the offender; and
(b) would make the prescribed custodial sentence unjust in all the circumstances."
The court is obliged, where it does not impose the mandatory minimum sentence, to state in open court that it is of the opinion specified and what the specific circumstances are.
The offence of which the appellant was convicted on 19 March 1998 fell within section 2(5)(d) of the 1997 Act. That offence was committed on 14 October 1997, after the commencement of the section. Therefore the condition in section 2(1)(a) was satisfied. When that offence was committed the appellant was aged 37. He had previously been convicted in England of another "serious offence" within the meaning of section 2(5), namely an offence falling within section 2(5)(h). On 26 March 1980, at the Central Criminal Court, the appellant, then aged 19, had pleaded guilty to three counts of robbery and one of attempted robbery and had been sentenced to a total of 14 years' detention. Those offences had been committed in 1979, jointly with co-defendants aged 38 and 28. During the robberies firearms had been carried, and on one occasion a firearm had been discharged by the appellant which had injured two members of the public. Those injuries had not been particularly serious, but had required hospital treatment. It follows that the conditions in section 2(1)(b) of the 1997 Act were also satisfied.
Upon the appellant's conviction of the section 18 offence on 19 March 1998, the court was accordingly obliged to impose a life sentence unless it was of the opinion that there were exceptional circumstances relating to either of the offences or to the appellant which justified its not doing so. It was urged upon the trial judge, His Honour Judge Fabyan Evans, that there were such exceptional circumstances which justified him in not imposing a life sentence. He rejected that submission. He said:
"I have listened to what [counsel] has had to say about exceptional circumstances. Those are, in my view, not simply mitigating circumstances, but I do take the view that a combination of circumstances may, in certain cases, amount to an exception to the consequence that otherwise inevitably follows in the sort of situation [in which] you find yourself.
I do not see that the facts of the offence, or the original offence, and...
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