R v Ottewell
| Jurisdiction | UK Non-devolved |
| Judge | Lord Reid,Lord Hodson,Lord Guest,Lord Upjohn,Lord Donovan |
| Judgment Date | 29 July 1968 |
| Judgment citation (vLex) | [1968] UKHL J0729-1 |
| Date | 29 July 1968 |
| Court | House of Lords |
[1968] UKHL J0729-1
Lord Reid
Lord Hodson
Lord Guest
Lord Upjohn
Lord Donovan
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Director of Public Prosecutions against Ottewell (on Appeal from the Court of Appeal (Criminal Division)), that the Committee had heard Counsel on Thursday the 4th day of this instant July, upon the Petition and Appeal of the Director of Public Prosecutions, of 12 Buckingham Gate, London, S.W.l, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal (Criminal Division), of the 10th of April 1968, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; and Counsel for Peter Ottewell, the Respondent in the said Appeal, having been heard to state that he adopted the submissions of Counsel for the Appellant in the said Appeal; and due consideration being had this day of what was offered for the said Appellant:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Criminal Division), of the 10th day of April 1968, in part complained of in the said Appeal, be, and the same is hereby, Reversed, and that the extended term of imprisonment imposed by the Honourable Mr. Justice Hinchcliffe, under section 37(2) of the Criminal Justice Act 1967, be, and the same is hereby, Restored: And it is further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
The Respondent was sentenced by Hinchcliffe J. in these terms: —
"You, Peter Ottewell, on count 2 which is assaulting Hollis occasioning him actual bodily harm, and count 9, assaulting Sheard occasioning him actual bodily harm, will go to prison for two years on each of those charges, the sentences to run consecutively and I direct that this be an extended term under section 37(2) of the Criminal Justice Act 1967."
He appealed against this sentence. On 19th December, 1967, in the Court of Appeal Lord Parker, L.C.J., said: —
"He is 28 years of age and has a record. He has been to an Approved School, he has been to Borstal, but much more seriously in 1962 for three cases of robbery with violence he was sentenced to a total of five years' imprisonment. In 1965 for office breaking with intent and possessing a firearm he received nine months in all and in 1966 for two cases of larceny and housebreaking and larceny he was sentenced to twelve months' imprisonment. Not only that, but he was treated as and undoubtedly was the ringleader in the sense that the major responsibility rested upon him.
In those circumstances the single Judge felt that there was nothing wrong with the sentence on the merits; this Court agrees, they can see no reason to interfere with this sentence, bearing in mind this man's record. It has been suggested by Mr. Simpson that he was being sentenced on his record. In one sense every prisoner is sentenced on his record, if by that one means having regard to his background. One is not sentencing afresh for earlier offences, but one sentences him to the particular sentence in question against the background of his criminal record. Looked at in this way this Court can see no reason whatever to interfere with the sentence.
However, the single Judge drew attention to the fact that the Trial Judge had added a certificate that the sentence was to be an extended term under section 37 subsection (2) of the Criminal Justice Act, 1967. It immediately raises the question as to whether an extended term as referred to in that provision means a term greater than the maximum which otherwise could be inflicted for the offence, or whether a term can be certified as an extended term even if it is within the maximum one for that offence. It secondly raises the question as to whether the extended term is properly to be given for the totality of the sentence, in this case two years plus two years consecutive, namely four years, or whether if an extended term is appropriate, it ought to be given in respect of each of those terms. As to that, the Court is indebted to Mr. Simpson's argument but feels that this is a matter of such importance that the proper course would be to adjourn this appeal on that point, and to ask for the Treasury Solicitor to instruct Counsel to appear as amicus to assist the Court."
Further argument was heard on 29th January, 1968, and on 10th April 1968, the Court of Appeal set aside the certificate of Hinchcliffe J. but in regard to the actual sentence dismissed the Respondent's appeal. On application by the Crown the Court certified that a point of law of general public importance was involved in the decision to set aside the certificate and granted leave to appeal to this House. That point of law was set out as follows: —
"Whether under the provisions of section 37 of the Criminal Justice Act 1967 a court has power to impose an extended term of imprisonment being a term which does not exceed the maximum term for the offence apart from that section."
The relevant provisions of section 37 are: —
"(1) No person shall be sentenced by a court to preventive detention or corrective training.
(2) Where an offender is convicted on indictment of an offence punishable with imprisonment for a term of two years or more and the conditions specified in subsection (4) of this section are satisfied, then, if the court is satisfied, by reason of his previous conduct and of the likelihood of his committing further offences, that it is expedient to protect the public from him for a substantial time, the court may impose an extended term of imprisonment under this section.
(3) The extended term which may be imposed under this section for any offence may exceed the maximum term authorised for the offence apart from this section if the maximum so authorised is less than ten years, but shall not exceed ten years if the maximum so authorised is less than ten years or exceed five years if the maximum so authorised is less than five years.
…
(5) Where an extended term of imprisonment is imposed on an offender under this section, the court shall issue a certificate (hereafter in this Act referred to as 'an extended sentence certificate') stating that the term was so imposed."
How to deal with a persistent offender has always been a problem. Preventive detention and corrective training were introduced in an attempt to solve it. But for various reasons these were found to be unsatisfactory and they are abolished by subsection (1) of section 37. It appears to me to be clear that subsection (2) is intended to replace them. The cross heading in the Act preceding section 37 is: "Powers to deal with persistent offenders", and the section appears, at least at first sight, to confer a general power on the Court. If (A) the accused has been convicted of an offence punishable with imprisonment for two years or more, and (B) he is a persistent offender as defined in subsection (4), and (C) the Court is satisfied for the reasons stated that it is expedient to protect the public from him for a substantial time, then the Court may impose "an extended term of imprisonment".
The difficulty in interpreting this section is caused by the fact that there is no definition or explanation of what is meant by an extended term. So the question immediately suggests itself—extended beyond what? Three possible answers have been suggested: first, extended beyond the term which the judge would have imposed if subsection (2) had not been enacted; secondly, extended by virtue of the provisions of subsection (3) beyond the maximum term otherwise authorised by law; and thirdly, extended beyond the normal sentence for that type of crime.
I reject the last alternative without hesitation. It was rather tentatively suggested by the learned Attorney-General that there is a "tariff for each kind of offence...
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