R v Lang
| Jurisdiction | England & Wales |
| Judge | THE VICE PRESIDENT |
| Judgment Date | 03 November 2005 |
| Neutral Citation | [2005] EWCA Crim 2864 |
| Docket Number | No: 200505080/A0200504522/A6200504918/A8200503384/A0200504477/A8200505056/A9200504473/A4200504572/A6200504152/A4200504096/A7200505230/A4200505379/A4200503519/A1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 03 November 2005 |
[2005] EWCA Crim 2864
The Vice President
(Lord Justice Rose)
Mr Justice Nelson
Mrs Justice Swift
No: 200505080/A0200504522/A6200504918/A8200503384/A0200504477/A8200505056/A9200504473/A4200504572/A6200504152/A4200504096/A7200505230/A4200505379/A4200503519/A1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
MR R AMLOT QC & MR B MAGUIRE appeared on behalf of the APPELLANT LANG
MR R AMLOT QC & MISS I FORSHALL appeared on behalf of the APPLICANT ABDI
MR R D AMLOT QC & MR A TUCKER appeared on behalf of the APPLICANT WINTERS
MR R AMLOT QC & MR MCDONAGH appeared on behalf of the APPELLANT CARASCO
MR R AMLOT QC & MR H JONES appeared on behalf of the APPLICANT FEIHN
MR R AMLOT QC & MR C STOCKWELL appeared on behalf of the APPELLANT WRIGHT
MR R AMLOT QC & MR R HAWKINS appeared on behalf of the APPLICANT COLLIER
MR R AMLOT QC & MR N LICKLEY appeared on behalf of the APPLICANT SHEPPARD
MR R AMLOT QC & MR NPJ CLARKE appeared on behalf of the APPLICANT D
MR R AMLOT QC & MR M SHELLEY (SOL ADVOCATE) appeared on behalf of the APPLICANT SMITH
MR R AMLOT QC & MR D BROOKE appeared on behalf of the APPLICANT ARMITAGE
MR R AMLOT QC & MR P EASTWOOD appeared on behalf of the APPLICANT G
MR R AMLOT QC & MR R LINFORD appeared on behalf of the APPELLANT EWDARDS
MR I WINTER appeared on behalf of the CROWN
These 13 cases have been heard together because, in each, the offences were specified violent or sexual offences committed on or after 4th April 2005, thereby attracting the new mandatory sentencing provisions, in relation to the protection of the public from dangerous offenders, contained in sections 224 to 229 of the Criminal Justice Act 2003. A sentence of life imprisonment, or imprisonment or detention for public protection, or an extended sentence was passed in the court below in 12 of the cases, though it is to be observed that in none was the specified period to be served under section 82A of the Powers of Criminal Court (Sentencing) Act 2000, greater than three-and-a-half years and in three it was 18 months or less. In the other case, no such sentence was passed. During the hearing we gave leave to appeal to all those who did not otherwise have leave.
This is the first opportunity this Court has had to consider some of the principles applicable to the new sentences and the factors which judges should take into account when deciding whether one of the new sentences must be imposed. We express our gratitude not only to counsel appearing before us on behalf of the appellants and the Crown but also to Dr David Thomas QC for his helpful note in Archbold News, Issue 4, 15th April 2005.
It should first be noted that, in relation to offences committed before 4th April 2005, discretionary life sentences, automatic life sentences, longer than commensurate sentences and extended sentences continue to be available. Accordingly, a defendant being sentenced for offences committed both before and after 4th April is required to be sentenced by reference to the two different regimes. It will generally be preferable to pass sentence on the later offences by reference to the new regime, imposing no separate penalty for the earlier offences. But this may not be possible if the later offences are less serious than the earlier ones.
Sentencers will, almost always, need to have before them the relevant sections of the Act. What follows is not intended to be a substitute for looking at the Act's provisions. It is merely an attempt to summarise the approach to sentencing which the Act requires and to give guidance as to its meaning.
To qualify for one of the new sentences, the offender must be convicted of a "specified offence", that is one of the 153 categories of violent or sexual offences listed in Parts 1 or 2 of Schedule 15 of the Act: violent offences range from murder to affray and threats of various kinds and sexual offences for rape to exposure. It is to be noted that the Sexual Offences Act 1956, which is referred to in identifying offences numbered 66 to 92 of Part 2 of the Schedule, was repealed on 1st May 2004, so one of the new sentences cannot be imposed in relation to any of the offences under that Act: but offences committed under the 1956 Act may be relevant to the assessment of dangerousness under section 229.
A specified offence may or may not be serious (section 224). It will be serious if it is punishable, in the case of a person aged 18 or over, with 10 years' imprisonment or more (section 224(2)(b)). If serious, it may attract life imprisonment or imprisonment for public protection for an adult (section 225) or detention for life or detention for public protection for those under 18 on the day of conviction (section 225). It will attract such a sentence if the court is of opinion that there is a significant risk to members of the public of serious harm by the commission of further specified offences (section 225(1) and section 226(1)).
Significant risk must be shown in relation to two matters: first, the commission of further specified, but not necessarily serious, offences; and, secondly, the causing thereby of serious harm to members of the public. If there is a significant risk of both, either a life sentence or indeterminate imprisonment for public protection must be imposed on an adult (section 225(2) and (3)). It must be a life sentence if the offence is one for which the offender is liable to life imprisonment and the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify imprisonment for life (section 225(2)); otherwise it must be imprisonment for public protection (section 225(3)). In relation to those under 18, there are similar provisions in relation to detention for life and detention for public protection subject, in the latter case, to an additional criterion by reference to the adequacy of an extended sentence under section 228 (section 226(2) and (3)). By section 229(3), where an offender aged 18 or over has previously been convicted of a specified offence, the court must assume there is a significant risk under sections 225 and 227 unless this would be unreasonable after taking into account information about the nature and circumstance of each offence, any pattern of behaviour of which any offence forms part and the offender.
It is not clear whether Parliament, when referring in sections 225(2)(b) and 226(2)(b) to the seriousness of an offence or offences being "such as to justify" imprisonment or detention for life, thereby making such a sentence mandatory, was intending to adopt this Court's criteria for the imposition of a discretionary life sentence (see R v Chapman (2000] 1 Cr App R(S) 77) or was seeking to introduce a new, more restrictive, criterion for seriousness relating it solely to the offence rather than, also, to the dangerousness of the offender. On the basis that Parliament is presumed to know the law, we incline to the former view. This construction is supported by section 143(1) which requires the court, when considering the seriousness of any offence, to consider the offender's culpability and "any harm which the offence caused, was intended to cause or might foreseeably have caused". This language clearly requires consideration of the culpability of the defendant as well as the seriousness of the offence and therefore involves consideration of dangerousness. For all practical purposes, imprisonment and detention for public protection are exactly the same as a life sentence: both are sentences for an indeterminate period, subject to the provisions of Chapter 2 of Part 2 of the Crime (Sentences) Act 1997 as to the release of prisoners and duration of licencees (sections 225(4) and 226(4). And, in relation to both a life sentence and imprisonment and detention for public protection, the court must fix a minimum term to be served in accordance with section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 as amended. However, there may be exceptional cases where the offence itself is so serious than an indeterminate sentence is justified by the seriousness of the offence irrespective of the risk to the public (Practice Direction para IV.47 (2002] 1 WLR 2870). The only discernible differences between a life sentence and imprisonment or detention for public protection are, first, that in the case of a sentence for imprisonment or detention for public protection, the Parole Board may, on application 10 years after release, direct the Secretary of State to order that a licence shall cease to have effect; and secondly, in relation to such a sentence no order can be made under section 82A(4) that early release provisions shall not apply (see section 82A (4A) as inserted by Schedule 18 paragraph 4 of the Criminal Justice Act 2003).
It is convenient at this point to remind sentencers of the provisions of section 143(2) and (3). Section 143(2) requires the court, when considering the seriousness of an offence committed by an offender who has previous convictions, to treat each previous conviction as an aggravating factor if, in the case of that previous conviction, the court considers that it can reasonably be so treated, having regard in particular to the nature of the offence to which the conviction relates and its relevance to the current conviction and the time that has elapsed since the conviction....
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