R v Nicholas Smith

JurisdictionEngland & Wales
JudgeLORD PHILLIPS
Judgment Date20 July 2011
Neutral Citation[2011] UKSC 37
Date20 July 2011
CourtSupreme Court

[2011] UKSC 37

THE SUPREME COURT

Trinity Term

On appeal from: [2010] EWCA Crim 530

before

Lord Phillips, President

Lord Walker

Lady Hale

Lord Collins

Lord Wilson

R
and
Smith
(Appellant)

Appellant

Tim Barnes QC

Sean Sullivan

(Instructed by Darryl Ingram & Co)

Respondent

Aftab Jafferjee QC

Duncan Penny

(Instructed by Crown Prosecution Service Special Crime Division)

LORD PHILLIPS, DELIVERING THE JUDGMENT OF THE COURT

Introduction

1

Imprisonment for public protection ("IPP") is a sentence which condemns a defendant to indeterminate detention. Section 225(3) of the Criminal Justice Act 2003 ("the 2003 Act"), as substituted by section 13(1) of the Criminal Justice and Immigration Act 2008, permits a judge to impose a sentence of IPP on a defendant who has been convicted of a serious offence where the judge finds that there is a significant risk that he will commit further offences that will cause serious harm to members of the public. Can or should a judge impose a sentence of IPP on a defendant who is already serving a sentence of life imprisonment under which he will not be released from prison until he can satisfy the Parole Board that he no longer poses a danger to the public? Although this question has been certified by the Court of Appeal as being a point of general public importance, its significance lies in the issue of law, rather than the practical implications of imposing a sentence of IPP in place of a determinate sentence in such circumstances.

2

An indeterminate sentence is one designed not merely to imprison a defendant for a minimum period that properly reflects the gravity of his offence, but to ensure that he is not released thereafter unless and until he has ceased to be a danger to the public. There are two types of indeterminate sentence. One is a sentence of life imprisonment, for a prisoner sentenced to life imprisonment is entitled to be considered by the Parole Board for release on licence once he has served a fixed term of imprisonment specified by the sentencing judge. The other indeterminate sentence is the IPP. Once again the sentencing judge will specify a minimum term to be served after which the prisoner will be entitled to be considered by the Parole Board for release on licence. The test applied by the Parole Board is the same, whether the defendant has been sentenced to life imprisonment or to IPP. Release will be ordered if, but only if, the Parole Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined–see sections 28(6)(b) and 34(2) of the Crime (Sentences) Act 1997, as amended by section 230 of, and Schedule 18 to, the 2003 Act.

3

The 2003 Act makes the following provisions in relation to the imposition of indeterminate sentences:

"225.– (1) This section applies where –

  • (a) a person aged 18 or over is convicted of a serious offence committed after the commencement of this section, and

  • (b) the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.

    2) If–

  • (c) the offence is one in respect of which the offender would apart from this section be liable to imprisonment for life, and

  • (d) the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life, the court must impose a sentence of imprisonment for life.

3) In a case not falling within subsection (2), the court may impose a sentence of imprisonment for public protection if the condition in subsection (3A) or the condition in subsection (3B) is met.

(3A) The condition in this subsection is that, at the time the offence was committed, the offender had been convicted of an offence specified in Schedule 15A.

(3B) The condition in this subsection is that the notional minimum term is at least two years."

The word "may" which I have emphasised was substituted for "must" by the Criminal Justice and Immigration Act 2008.

The Facts

4

The appellant was born on 25 February 1950. He has been in and out of prison all his adult life–much more in than out, for on each release from prison he has almost immediately returned to crime and been fairly swiftly apprehended and re-convicted. His more recent convictions prior to that which resulted in the sentence which is the subject of the present appeal were as follows:

"(i) On 21 November 1975, at the Central Criminal Court, he was sentenced to a total of ten years' imprisonment for two offences of robbery, contrary to section 8 of the Theft Act 1968, two offences of conspiracy to rob contrary to section 1(1) of the Criminal Law Act 1977 and one offence of wounding with intent to cause grievous bodily harm, contrary to section 18 of the Offences Against the Person Act 1861.

(ii) On 29 September 1982, at the Central Criminal Court, he was sentenced to a total of 12 years' imprisonment for one offence of conspiracy to rob contrary to section 1(1) of the Criminal Law Act 1977, one offence of having an imitation firearm with intent to commit an indictable offence contrary to section 18 of the Firearms Act 1968, one offence of taking a conveyance without authority contrary to section 12 of the Theft Act 1968 and one offence of criminal damage contrary to section 1(1) of the Criminal Damage Act 1971.

(iii) On 28 October 1994, at the Central Criminal Court, he was sentenced to a total of nine years' imprisonment for three offences of robbery, contrary to section 8 of the Theft Act 1968 and three associated offences of carrying a firearm with intent to commit an indictable offence contrary to section 18 of the Firearms Act 1968.

(iv) On 24 January 2000, in the Crown Court at Kingston, he was sentenced to imprisonment for life for one offence of attempted robbery, contrary to section 1(1) of the Criminal Attempts Act 1981 and one offence of having a firearm with intent, contrary to section 18 of the Firearms Act 1968. The minimum term to be served prior to consideration of release was fixed at four years."

The life sentence was mandatory by reason of the appellant's previous convictions and the provisions of section 2 of the Crime (Sentences) Act 1997.

5

Having served the minimum term under the sentence passed on 24 January 2000, the appellant persuaded the Parole Board that he qualified for release on licence and was released on 25 September 2004. On 11 January 2008 he was arrested again on this occasion on suspicion of having committed eight armed robberies of bookmakers' premises between 4 March 2006 and 28 May 2007. In accordance with the provisions of section 32 of the Crime (Sentences) Act 1997 his arrest resulted in his recall under life sentence for breach of the terms of the licence under which he had been released. On 2 September 2008 in the Crown Court at Harrow he pleaded guilty to eight offences of robbery, contrary to section 8 of the Theft Act 1968 and eight linked offences of possession of a firearm at the time of committing a specified offence, contrary to section 17(2) of the Firearms Act 1968.

The Sentence

6

The appellant was sentenced on 10 October 2008 by His Honour Judge Greenwood. In the course of passing sentence the judge made the following remarks:

"Nicholas Smith, I have to sentence you for a total of eight offences of robbery and eight offences of possessing a firearm at the time of committing robberies. What you did was to select premises where you expected large sums of money to be kept. You were armed with an imitation firearm and disguised and you threatened members of staff with that imitation firearm.

I have no doubt at all that on...

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