R v Mark Roberts and Others

JurisdictionEngland & Wales
JudgeLord Thomas of Cwmgiedd
Judgment Date18 March 2016
Neutral Citation[2016] EWCA Crim 71
Docket NumberCase Nos: 2006/04441/A4, 2014/04477/A2, 2014/04681/A7, 2014/04729/A6, 2014/05293/A8, 2014/05593/A7, 2015/00017/A8, 2015/00369/A6, 2015/00380/A2, 2015/01547/A8, 2015/01741/A4, 2015/01840/A7, 2015/02010/A7
CourtCourt of Appeal (Criminal Division)
Date18 March 2016
Between:
Regina
Respondent
and
(1) Mark Roberts
(2) Natasha Precado
(3) David Craig Quaglia
(4) Paul Anthony Woodward
(5) Simeon Peter Gittens
(6) Joseph Steven Powney
(7) Nigel Darren Garbutt
(8) Jason William Warwick
(9) Martin Lee Fay
(10) Kelly Georgina Diveney
(11) Darren Paul Byrne
(12) Sonnie Michael Wakeling
(13) Sean Dowe
Applicants

[2016] EWCA Crim 71

Before:

The Lord Chief Justice of England and Wales

Mr Justice Openshaw

and

Mr Justice William Davis

Case Nos: 2006/04441/A4, 2014/04477/A2, 2014/04681/A7, 2014/04729/A6, 2014/05293/A8, 2014/05593/A7, 2015/00017/A8, 2015/00369/A6, 2015/00380/A2, 2015/01547/A8, 2015/01741/A4, 2015/01840/A7, 2015/02010/A7

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

J Bennathan QC and E Coverley for the Applicant (Roberts)

J Bennathan QC and B Keith for the Applicant (Precado)

J Bennathan QC and N Beechey for the Applicants (Quaglia and Byrne)

P Rule for the Applicant (Woodward)

J Bennathan QC and R Banks for the Applicant (Gittens)

J Bennathan QC and C Ashcroft for the Applicant (Powney)

J Bennathan QC and K Thorne for the Applicants (Garbutt and Dowe)

J Bennathan QC and S Field for the Applicant (Warwick)

J Bennathan QC and Miss C Hawley for the Applicant (Fay)

J Bennathan QC and Miss C Patrick for the Applicant (Diveney)

J Bennathan QC and T Dyke for the Applicant (Wakeling)

J McGuinness QC and S Heptonstall for the Respondent

Hearing date: 10 December 2015

Approved Judgment

Lord Thomas of Cwmgiedd, CJ:

INTRODUCTION

1

There are before the Court 13 applications for an extension of time in which to apply for leave to appeal against sentences of imprisonment or detention for public protection imposed between 2005 and 2008 under the Criminal Justice Act 2003 ( CJA 2003).

The sentence of Imprisonment for Public Protection: 2005–2012

(a) The original sentence of IPP 2005–2008

2

Sentences of imprisonment for public protection and for offenders under 18, detention for public protection, (IPP) were brought into effect on 4 April 2005 under the dangerous offender provisions contained in Chapter 5 of Part 12 of the CJA 2003. These provisions followed a review of sentencing carried out for the then Home Secretary by John Halliday, set out in a report published in July 2001 entitled Making Punishments Work — a Review of the Sentencing Framework for England and Wales.

3

S.225 and s.226 of the CJA 2003 set out the detailed provisions for those convicted of serious specified offences, if the offender was dangerous. An offender was dangerous if the court assessed that there was:

"a significant risk to members of the public of serious harm occasioned by him of further specified offences"

4

The court was not given the usual freedom in making that assessment. The CJA 2003 required the court to make the assumption of dangerousness for those over 18 if the offender had been convicted on an earlier occasion of a specified offence, unless it was unreasonable to do so. Specified offences were violent and sexual offences listed in Schedule 15 and included wounding or causing grievous bodily harm under s.20 and assault occasioning actual bodily harm under s.47 of the Offences Against the Person Act 1861 which carried a maximum sentence of 5 years imprisonment.

5

Where the offender was found to be dangerous and over 18, the court was required to pass a sentence of IPP or life imprisonment. It is important to emphasise that the CJA 2003 removed all discretion from the court once it was found that the offender was dangerous. The sentence had to be IPP or life imprisonment.

6

The court was required to set a minimum term to be served. This was calculated as half of the notional determinate term that would have been passed if an IPP had not been imposed; this was intended to reflect the culpability and harm caused by the offence and the punishment required. Otherwise the length of the sentence was indeterminate as, before an offender was released, he had to pass a threshold of showing that, under s.28(6) of the Crime (Sentences) Act 1997 it was "no longer necessary for the protection of the public that he should be confined", a test most recently examined in R (King) v Parole Board [2016] EWCA Civ 51.

7

12 of the applications before the court relate to those who were sentenced to IPP in the period before July 2008. In each case the minimum term has long expired; for example the minimum term for one of the appellants, Roberts, was under a year; he was sentenced when 18 in May 2006 (see paragraph 48 below); that of Precado sentenced in January 2007 when aged 23 was 6 months (see paragraphs 59 and 69 below).

(b) The amended sentence of IPP 2008–2012

8

In 2008 Parliament by the Criminal Justice and Immigration Act 2008 modified the sentence of IPP. The amended provisions removed the statutory assumption of dangerousness, removed the mandatory imposition of IPP where the offender was found to be dangerous and removed some offenders from the scope of the sentence by reducing the list of specified offences and by stipulating that the minimum term had to be at least 2 years save where the offender has committed an offence listed in yet another schedule. The amendments did not affect the position of those who had been sentenced between April 2005 and July 2008. One of the applications before the court, Woodward, relates to an offender sentenced after July 2008.

(c) The abolition of the sentence of IPP

9

In 2012 Parliament abolished the sentence of IPP by the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) for all offenders convicted after 3 December 2012. The abolition did not affect those who had been sentenced to IPP in the period between 2005 and 2012, but s.128 enabled the Secretary of State to modify the threshold for release. No modification has so far been made, a point to which we return at paragraph 45.

10

As at 4 March 2016, there are over 4,000 still in custody under a sentence of IPP (about 5% of the total prison population) and a significant further number who are subject to the licence terms of their IPP and therefore still subject to recall to continue to serve their sentence of IPP.

(d) The reason for these applications

11

In each of these applications the applicant seeks to appeal many years out of time against the sentence of IPP. No appeals were brought when they should have been within the 28 day period after sentence specified by s.18(2) of the Criminal Appeal Act 1968 for making applications for leave to appeal. It seems clear that it was perceived at the time there would be no prospect of success in any such application.

12

All the applicants have been either detained in custody long after the expiry of the minimum term or have been recalled for breach of licence as, for example, Gittens (see paragraph 98), Diveney (see paragraph 147) and Wakeling (see paragraph 165). Some were very young when such sentences were imposed — for example Roberts (see paragraph 48), Powney (see paragraphs 109, 111 and 112) and Fay (see paragraph 137).

13

The applicants now seek an extension of time under s.18 (3) of the Criminal Appeal Act 1968 to challenge the correctness of the sentences imposed on them. In contrast to the period of 28 days normally allowed, the applicants seek extensions of between 5 and 9 years either to apply for leave or, in one case, to renew the application after refusal by the Single Judge many years after the expiry of the 14 day period allowed for making an application to renew. They argue that because of the position in which they find themselves, the court should look again at the sentence, even if at the time no-one would have thought they were wrong in principle or manifestly excessive.

14

These cases were heard together so that the court could consider whether time should be extended.

THE GENERAL PRINCIPLES

(a) The central submission of the applicants

15

The central submission of each of the applicants was that the imposition of the IPP was not justified by the statutory criteria as explained by the case law of this court, particularly R v Lang [2005] EWCA Crim 2864, [2006] 2 Cr App R(S) 3 to which we refer at paragraph 22.i) below and when considering the individual applications.

16

It was submitted that:

i) Whatever may have been the position at the time the sentences of IPP were passed, the court had power under s.11 of the Criminal Appeal Act 1968 to pass sentences that, in the light of what had happened over the intervening years, now would be the proper sentence.

ii) This court should reconsider the assessments made by sentencing judges in the light of Lang. The court should examine with particular care cases where proper reasons were not given and cases where young offenders were sentenced.

iii) A time could and had been reached when the length of the imprisonment was so excessive and disproportionate compared to the index criminal offence that it could amount to inhuman treatment under Article 3 or arbitrary detention under Article 5 of the European Convention on Human Rights. That was because the detention no longer had any meaningful link to the index offence. A much delayed review of a sentencing decision could therefore be a mechanism the court could employ to avoid a breach of these Convention Rights. As the period now served by each of the applicants was so much longer than any conceivable determinate sentence would have required, the continued detention amounted to preventative detention and was therefore arbitrary.

We will consider these in turn.

(b) The role of the...

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