R v Offen and Others (No 1)
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 09 November 2000 |
| Judgment citation (vLex) | [2000] EWCA Crim J1109-11 |
| Docket Number | 2000/05907/Y4 2000/03507/W2 2000/0267/Z1 2000/01871/S2 2000/01913/R2 200/05907/Y4 2000/02939/Z5 2000/03507/W2 2000/04827/Z1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 09 November 2000 |
[2000] EWCA Crim J1109-11
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
The Lord Chief Justice of England And Wales
(The Lord Woolf of Barnes)
Mrs Justice Steel and
Mr Justice Richards
2000/05907/Y4
2000/02939/Z5
2000/03507/W2
2000/0267/Z1
2000/01871/S2
2000/01913/R2
200/05907/Y4
2000/02939/Z5
2000/03507/W2
2000/04827/Z1
APPEARANCES:
MR EDWARD FITZGERALD QC and MISS PHILLIPPA KAUFMANN appeared on behalf of THE APPELLANT OFFEN
MR JOEL BENNATHAN appeared on behalf of THE APPLICANT McGILLIARD
MR DAVID PERRY appeared on behalf of THE CROWN
MR CHRISTOPHER JOHN KNOX appeared on behalf of THE APPELLANT McKEOWN
MR DAVID PERRY appeared on behalf of THE CROWN
MR EDWARD FITZGERALD QC and MR DANIEL FRIEDMAN appeared on behalf of THE APPLICANT OKWUEGBUNAM
MR DAVID PERRY appeared on behalf of THE CROWN
MR DAVID PERRY appeared on behalf of THE ATTORNEY GENERAL
MR ALASTAIR EDIE appeared on behalf of THE OFFENDER STEPHEN PETER S
Thursday 9 November 2000
This judgment relates to five appeals. In each case where leave is required to appeal against sentence, we give leave. The five appeals all involve section 2 of the Crime (Sentences) Act 1997 'the 1997 Act'. (This is now section 109 Powers of the Criminal Courts (Sentencing) Act 2000. In this judgment we will refer to section 2 in the 1997 Act.) The application of section 2 has already given rise to a number of decisions by this court. They illustrate the problems which can arise in practice in applying statutory provisions which require the courts to impose an automatic life sentence on certain offenders.
The policy of Parliament for establishing the automatic life sentences emerges clearly from the then Government's White Paper, Protecting the Public, the Government's Strategy on Crime in England and Wales (1996). In (Cm 3190) paragraph 10.11 the White Paper states:
"Too often in the past, those who had shown a propensity to commit serious, violent or sex offences have served their sentences and been released only to offend again. In many such cases the danger of releasing the offender has been plain for all to see —but nothing could be done, because once the offender has completed the sentence imposed, he or she has to be released. Too often, victims have paid the price when the offender has repeated the same offences. The Government is determined that the public should receive proper protection from persistent violent or sex offenders. That means requiring the courts to impose an automatic indeterminate sentence, and releasing the offender if and only if it is safe to do so."
In R v Buckland [2000] 1 WLR 1262 Lord Bingham of Cornhill CJ described the rationale of section 2 in these terms:
"The section is founded on an assumption that those who have been convicted of two qualifying serious offences present such a serious and continuing danger to the safety of the public that they should be liable to indefinite incarceration and, if released should be liable indefinitely to recall to prison. In any case where on all the evidence it appears that such a danger does or may exist, it is hard to see how the Court can consider itself justified in not imposing the statutory penalty, even if exceptional circumstances are found to exist. But if exceptional circumstances are found, and the evidence suggests that an offender does not present a serious and continuing danger to the safety of the public, the Court may be justified in imposing a lesser penalty."
The reason why we have heard these appeals together is because in each case it is contended that either the interpretation of section 2 of the 1997 Act is affected by section 3 of the Human Rights Act 1998 ('the 1998 Act'), or that section 2 is incompatible with a Convention right so that the appellants are entitled to a declaration of incompatibility. The impact of the 1998 Act on the interpretation of legislation arises under section 3 of the Act, which provides:
"3(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."
The Legislation
Section 2 of the 1997 Act, so far as relevant, is in the following terms:
"(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. [emphasis added]
(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."
The following features of the section will be noted:
(i)It refers to two offences having been committed by the offender.
(ii)It is only the second offence ('the trigger offence') which has to have been committed after the commencement of the section. The earlier offence may have been committed at any time.
(iii)When the second offence is committed the offender is required to be over `18 but there is no age requirement in relation to the first offence.
(iv)The proviso of "exceptional circumstances" applies to both offences. The "exceptional circumstances" can relate either to the offences or to the offender but what constitutes exceptional circumstances is not otherwise defined by the section.
(v)all offences identified as serious offences are offences for which life imprisonment could be imposed quite apart from section 2.
The Facts of the Different Appeals
The relevant circumstances of each appeal can be shortly summarised as follows:
MATTHEW BARRY JAMES OFFEN
On 28 May 1999 the appellant Matthew Offen, now 35 years of age, pleaded guilty at Lewes Crown Court to an offence of robbery involving the use of an imitation firearm, committed on 26 January 1999. On 19 January 1990 he had been convicted of an offence of robbery committed in September 1989 and of an offence of going equipped for theft for which he was sentenced to thirty months imprisonment.
Mathew Offen's case was therefore one to which section 2 of the 1997 Act applied. Finding there were no exceptional circumstances which justified his not doing so, the judge imposed a term of life imprisonment under section 2. A period of fourteen months was specified under section 28 of the 1997 Act. The judge indicated that had he not been required to pass a life sentence he would have imposed a determinate sentence of three years imprisonment and that he had taken into account the time spent in custody before sentence was passed. On 28 October 1999, in the Court of Appeal Criminal Division, Matthew Offen's appeal against his life sentence was dismissed. The court found that there were no exceptional circumstances in relation to the offence or the offender which would justify the court in not imposing a sentence of life imprisonment.
The appellant's case has now been referred back to the Court of Appeal under section 9(1)(b) of the Criminal Appeal Act 1995.
The facts of the robbery in 1999 are that the appellant, carrying a sports bag, entered a building society in Hove in the early afternoon of 26 January 1999. His appearance was unkempt, and one of the employees formed the impression that he was homeless. He approached the counter, put the sports bag on top of it and took out a plastic bag containing a toy gun. Two cashiers were sitting at the counter and the appellant pointed the gun at one of them who believed it to be a real gun. The appellant told the cashier "give me your money put it in the bag." The cashier asked if he was joking to which the appellant said "no put the money in the bag". To one employee he appeared to be nervous. When it became clear that he was serious the cashier removed from the till a wad of notes, later found to be £960, and placed it in the sports bag. The cashier told the appellant this was all they had. The appellant then said "I'm sorry I have to do this" or words to that effect. He put the plastic bag containing the...
To continue reading
Request your trial
-
Attorney General's Reference (No. 124 of 2001)
...…. or the present offence of manslaughter) or to the offender which justify its not doing so." 18 The judge then referred to the fact that R v Offen [2001] 1 WLR 253 dealt with the meaning of "exceptional circumstances". That is an authority, together with the later authorities which have s......
-
Peart (Shabadine) v R
...to deprive a person of liberty. Once again valuable assistance may be found in R v Smith (Edward Dewey) 1987 I SCR 1045; R v Offen [2001] 1 W.L.R. 253 which are adverted to on pages 1052-1053 of Reyes . To my mind on a proper reading section 3A(1) and (2) of the Offences against the Person......
-
R v Rehman; R v Wood
...of Interpretation 10 It is not necessary to set out the provisions of Article 3 and Article 5, but it is necessary to refer to R v Offen and Others [2001] 1 Cr App R 372. In Offen the Court of Appeal considered a different mandatory requirement, a mandatory requirement which created an obli......
-
Sharkey v HM Revenue and Customs; Sharkey v De Croos (Inspector of Taxes)
...offence, and (c) the severity of the penalty that the person concerned risked incurring: see also Han v. Customs & Excise Commissioners [2001] 1 WLR 253 at para. [61] citing AP, MP and TP v. Switzerland (1997) 26 EHRR 541, at page 558 para. 2818. As to the first of those criteria, the s.97......
-
The Anti–Terrorism, Crime and Security Act 2001: A Proportionate Response to 11 September?
...derogation or reservation.155 Alternatively, thesepossibilities may require SIAC, the Court of Appeal and House of Lords to strive to152 [2001] 1 WLR 253, CA.153 The detainees are supposed to be kept in remand conditions: see n 135 above. The National Councilfor the Welfare of Muslim Prison......
-
A Minimalist Charter of Rights for Australia: The UK or Canada as a Model?
...conviction, in a way which approximated an exercise of the stronger remedial power to issue a declaration of inconsistency. 65 R v Offen [2001] 1 WLR 253 (criminal sentencing); R v A [2002] 1 AC 45 (admissibility of evidence in criminal trial); R v Lambert [2001] 3 WLR 206 (burden of proof ......
-
Judicial Discretion versus Restraint in the Realm of Human Rights: A Contextual Approach to the UK Human Rights Act 1998
..."(Mis)-Reading Section 3 of the Human Rights Act" (2003) 119 Law Ruarterly Review 183, at 188. R v Offen (Matthew Barry) (No.2) [2001] 2 All ER 154; [2001] 1WLR 253. Hereafter referred to as R v Offen. 38 Conor Gearty, Principles of Human Rights Adjudication (Oxford University Press, 2004).......
-
The policy and practice of protective sentencing
...2 Cr App R (S) 176.R v Mansell (1994) 15 Cr App R (S) 771.Mansell v UK (1997) EHRR 666.R v Nelson (2001) Crim. L. R. 999.R v Offen (2001) 1 WLR 253.R v Stephens (2000) Crim. L. R. 403.R v Turner (2000) Crim. L. R. 492.R v Williams (1993) 15 Cr App R (S) 330.R v Wilson (2000) Crim. L. R. RAL......