R v Michael Edwin Reynolds
| Jurisdiction | England & Wales |
| Judge | Lord Justice Latham |
| Judgment Date | 08 March 2007 |
| Neutral Citation | [2007] EWCA Crim 538 |
| Docket Number | Case Nos: 2006/4470/A1, 2006/3349A3, 2006/2539A8, 2006/3101A4, 2006/3625A6, 2006/4842 A5, R v S, 2006/4720/A4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 08 March 2007 |
[2007] EWCA Crim 538
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Latham
Mr Justice Mitting and
Mr Justice Teare
Case Nos: 2006/4470/A1, 2006/3349A3, 2006/2539A8, 2006/3101A4, 2006/3625A6, 2006/4842 A5, R v S, 2006/4720/A4
DAVID PERRY, QC appeared on behalf of the Crown in all Cases
DAVID EVANS appeared on behalf of the Crown in REYNOLDS
ALEXIS LEWIS appeared on behalf of the Crown
WILLIAM CHAPMAN appeared on behalf of the Crown in WEBB, LUBWAMA & HONORE
SIMON HEPTONSTALL appeared on behalf of the Applicants REYNOLDS & WEBB
ANDREW THOMPSON appeared on behalf of the applicant SLANEY
FRANCIS LAIRD appeared on behalf of the applicant DOWNING
VANESSA MARSHALL appeared on behalf of the applicant 'S'
GRAHAM BLOWER appeared on behalf of the applicant THOMPSON 7
Hearing dates: 8th December 2006
These eight cases have been listed together because they raise yet another facet of the difficulties sentencers face when seeking to apply the provisions of Chapter 5 Part 12 of the Criminal Justice Act 2003 (“the 2003 Act”) relating to dangerous offenders. The leitmotif is the problem presented to this court in the event that the sentencing judge is mistaken as to his powers under Chapter 5 of the 2003 Act, or otherwise misapplies its provisions. The most significant issue of principle with which we are concerned is the effect of section 11(3) of the Criminal Appeal Act 1968 (“the 1968 Act”) which sets out the powers of this court when dealing with appeals against sentence, and which restricts that power so that the court is precluded from making an order which will result in the appellant being dealt with more severely on appeal than he was in the Crown Court. They raise, in a different context, problems akin to those considered by this court in R v Norman et al [2006] EWCA Crim 1792 which concerned mistakes made by the sentencing court in crediting periods spent in custody and the appropriate mechanisms for correcting such mistakes. One of the appeals with which we are concerned, Reynolds, provides an opportunity to revisit the provisions of Section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 (“the 2000 Act”), the so called “slip-rule”, which this court has recently considered in R v Gordon et al [2007] EWCA Crim 165.
The provisions of Chapter 5 of the 2003 Act have now being extensively reviewed and explained in R v Lang [2006] 2 Cr App R(S) 3 and R v Johnson [2006] EWCA Crim 2486. They provide a mandatory sentencing framework for all offenders convicted of a “specified” offence committed on or after the 4 th April 2005, where the court is “of the opinion” (sections 225 and 226 of the 2003 Act) or “considers” (sections 227 and 228 of the 2003 Act) that the defendant poses a significant risk to members of the public of serious harm occasioned by the commission by him of further “specified” offences (the criteria of dangerousness: see section 229 of the 2003 Act). “Specified” offences are violent offences or sexual offences specified in Schedule 15 to the 2003 Act. The substantial change to pre-existing sentencing regimes is that where the two conditions are met, namely the nature of the offence and the criteria of dangerousness, only two forms of sentence can be passed, either an indeterminate sentence, or an extended sentence.
For the purposes of determining which of those is appropriate, “specified” offences punishable in the case of a person aged 18 or over by imprisonment for life or imprisonment for a determinate period of 10 years or more, are “serious” offences. Where a person aged over 18 is convicted of a “serious” offence, and the criteria of dangerousness are met, the sentence must be an indeterminate sentence, either life imprisonment, or imprisonment for public protection (section 225 of the 2003 Act). If a person aged 18 or over is convicted of a “specified” offence other than a “serious” offence, and the criteria of dangerousness are met, then he must be sentenced to an extended sentence (section 227 of the 2003 Act). A person under 18 convicted of a “serious” offence who meets the criteria of dangerousness and would be liable to a sentence of detention for life under section 91 of the 2000 Act must be sentenced to detention for life otherwise the court has a choice between detention for public protection (section 226(3) of the 2003 Act) or an extended sentence (section 228 of the 2003 Act). If a person aged under 18 is convicted of a “specified” offence other than a “serious” offence, and the criteria of dangerousness are met the court must impose an extended sentence of detention (section 228 of the 2003 Act).
We have not thought it necessary to set out the statutory provisions in any further detail. The important point is that these provisions create a discrete code for the sentencing of what are described by the Chapter heading as “Dangerous Offenders”. Subject to the court's assessment of whether or not the criteria of dangerousness are met, its provisions are mandatory. They replaced provisions in the 2000 Act relating to violent or sexual offenders which included longer than commensurate determinate custodial sentences, extended periods of supervision on licence, and the “automatic” life sentence for a second serious offence. As will be seen, one of the common mistakes exemplified by the present appeals and applications is the imposition of extended sentences, in particular in sexual offences, rather than an indeterminate sentence where the offence is a “serious” offence. As we have explained above, the court has no discretion in the case of a person over 18 if the offence is a serious offence. It has to be an indeterminate sentence. And the same applies to those under 18 if the offence is one which would render him liable to a sentence of detention for life. Otherwise, pursuant to section 226(3) the court's discretion is limited to a choice between an indeterminate sentence and an extended sentence.
Before turning to the particular problems with which we have to deal in these cases, it seems to us that we should make some general comments about the difficulties facing sentencers in relation to these provisions. In doing so we are acutely conscious that we are merely reiterating what has been said before. Nonetheless it seems to us to be necessary to do so. Parliament, for good or ill, has imposed on the courts a sentencing regime with which the courts are required to comply where the offence is a “specified” offence committed on or after 4 th April 2005. That regime requires the court to carry out a careful step by step evaluation of the sentencing consequences of the type of offence, the age of the offender and the assessment of his dangerousness. What follows is a synopsis of the way in which that exercise should be carried out.
(a) As far as the type of offence is concerned, the first question to ask is whether or not the offence is a “specified” offence, and the second is whether it is a “serious” offence.
(b) If it is a “specified” offence, whether “serious” or not, the court must determine whether the defendant meets the criteria of dangerousness. In doing so the judge will be guided by the decisions of this court in Lang (supra), and Johnson (supra).
(c) If the criteria of dangerousness are met and the defendant is aged 18 or over,
(i) where the offence is a “serious” offence, he must be sentenced to an indeterminate sentence under section 225 of the 2003 Act,
(ii) otherwise he must be sentenced to an extended sentence under section 227 of the 2003 Act.
(d) If the criteria of dangerousness are met, and the offender is under 18:
(i) If the offence is a “serious” offence and an offence to which he would be liable to a sentence of detention for life under section 91 of the 2000 Act, and it justifies (together with any associated offence) detention for life; he must be sentenced to detention for life;
(ii) if the court considers in such a case that such a sentence is not justified, and, pursuant to section 226(3) of the 2003 Act, it considers that an extended sentence under section 228 of the 2003 Act would be inadequate to protect the public, it must impose detention for public protection;
(iii) in any other case the defendant must be sentenced to an extended sentence under section 227 of the 2003 Act.
(e) By virtue of sections 227 and 228 of the 2003 Act a court must impose an extended sentence on a defendant who meets the criteria of dangerousness if he has been convicted of a “specified” but not “serious” offence, even if he has been convicted at the same time of an offence carrying an indeterminate sentence, and has been sentenced accordingly.
The problems to which we referred in paragraph 1 are that sentencers, not surprisingly given the complexity of the legislation, are making mistakes as to their obligations under Chapter 5. As we have said, a common mistake is the failure to appreciate that a “specified” offence is a “serious” offence. As we have said, that is particularly so in sexual offences. It may well be that this is, in part, because courts had become familiar with imposing extended sentences under the 2000 Act, particularly in sexual offences. And extended sentences are often recommended in pre-sentence reports in cases where the ultimate conviction may well be of a “serious” offence. The fact that so many mistakes are still being made means that we must reinforce what this court has said time and time again, and the Lord...
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