R v Lang

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
JudgeTHE VICE PRESIDENT
Judgment Date03 November 2005
Neutral Citation[2005] EWCA Crim 2864
Docket NumberNo: 200505080/A0200504522/A6200504918/A8200503384/A0200504477/A8200505056/A9200504473/A4200504572/A6200504152/A4200504096/A7200505230/A4200505379/A4200503519/A1
Date03 November 2005

[2005] EWCA Crim 2864

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Strand

London, WC2

Before

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

Regina
and
Stephen Howard Lang
Hassan Abdi
Keith William Winters
Charles Dixon Carasco
Steven Feihn
Robert Wilfred Wright
Edward Collier
James John Sheppard
D
Gary Alan Smith
Lewis Armitage
Heathcliffe Glave
Michael Guidera
Kyle Frederick George Edwards

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

THE VICE PRESIDENT
1

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.

2

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.

3

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.

4

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.

5

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.

6

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)).

7

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.

8

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).

9

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....

To continue reading

Request your trial
384 cases
8 books & journal articles
  • The rule of law
    • Ireland
    • Irish Judicial Studies Journal Nbr. 1-8, January 2008
    • 1 janvier 2008
    ...22The Criminal Justice Act, 2003 is a prime example. In R. v. Lang [2005] E.W.C.A. Crim. 2864, [2006] 1 W.L.R. 2509, at paras. 16 and 153 Rose L.J. described the provisions of the Act as “labyrinthine” and “astonishingly complex”. In R. (Crown Prosecution Service) v. South East Surrey Youth......
  • Court of Appeal
    • United Kingdom
    • Journal of Criminal Law, The Nbr. 75-6, December 2011
    • 1 décembre 2011
    ...that the test for aSOPO differs from that required for an imprisonment for public protec-tion (IPP) sentence (see most notably R v Lang [2006] 1 WLR 2509). Thecourt echoes its earlier decisions in R vBolton [2010] EWCA Crim 1177and R vL[2010] EWCA Crim 2046 that ordinarily there is no point......
  • Interpreting the Politics of the Judiciary: The British Senior Judicial Tradition and the Pre‐emptive Turn in Criminal Justice
    • United Kingdom
    • Journal of Law and Society Nbr. 41-3, September 2014
    • 1 septembre 2014
    ...in Sente ncing' in Sen tencingGuidelines: Exploring the English Model, eds. A. Ashworth and J.V. Roberts(2013).101 Rv. Lang et al [2005] EWCA Crim 2864, para. 16.102 M. Wasik, `The Test for Dangerousness' in Seeking Security, eds. I. Dennis and G.Sullivan (2012) 245.103 HM Chief Inspector (......
  • Challenging the Ongoing Injustice of Imprisonment for Public Protection: James, Wells and Lee v The United Kingdom
    • United Kingdom
    • The Modern Law Review Nbr. 76-6, November 2013
    • 1 novembre 2013
    ...Sched 15, Part 2.7 Section 224(3) defines serious harm as ‘death or serious personal injury, whether physical orpsychological’. In Lang [2006] 1 WLR 2509, Rose LJ stated that ‘significant’ meant more than apossibility. Significance implied it had to be ‘noteworthy, of considerable amount or im......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT