Red Saunders and Others v R
| Jurisdiction | England & Wales |
| Judge | The Lord Chief Justice of England and Wales |
| Judgment Date | 28 June 2013 |
| Neutral Citation | [2013] EWCA Crim 1027 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: (1) 2013/00030; (2) 2012/07317; (3) 2012/07086 |
[2013] EWCA Crim 1027
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM (1) Central Criminal Court; (2) Canterbury Crown Court; (3) Central Criminal Court
(1) HHJ Rook QC: (2) HHJ Williams; (3) Mr Recorder Wood QC
(1) T2012/7416/7417; (2)T2012/7151; (3)T2012/7161
Royal Courts of Justice
Strand, London, WC2A 2LL
The Lord Chief Justice of England and Wales
Lord Justice Lloyd Jones
and
Mr Justice Openshaw
Case No: (1) 2013/00030; (2) 2012/07317; (3) 2012/07086
G Payne for the Appellant Saunders
D Webber for the Appellant G
M Magarian QC for the Appellant Edwards
A Edis QC for the Crown
This is the judgment of the court.
In these three appeals against sentence a non mandatory sentence of life imprisonment was imposed. They were listed for hearing at the same time and, because some of the grounds of appeal appeared to raise issues related to the correct approach to non mandatory sentences of life imprisonment following the changes to the dangerous offender provisions found in chapter 5 of Part 12 of the Criminal Justice Act 2003, as amended by the Criminal Justice and Immigration Act 2008, effected by ss.122–124 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO"), they were heard sequentially.
The LASPO provisions came into force on 3 December 2012. As part of the submissions made on behalf of one or more of these appellants, it was suggested that as the new regime was clearly in contemplation at the date of sentence, and indeed in full force in relation to the sentencing decisions of those convicted on the dates when the offenders came to be sentenced, the earlier provisions should be regarded as having fallen into desuetude. That submission was unsustainable.
In the absence of express statutory language, whether the new regime will be more or less draconian than the regime which is being replaced, the sentencing court is not entitled to anticipate new sentencing provisions before they actually come into force. (See Att-Gen Ref No. 55 of 2008) ( R v C) [2008] EWCA Crim 2790 and R v Instone [2012] EWCA Crim 1792.) Moreover, and by way of further emphasis, if it were otherwise, the consequent impact on release provisions (which are almost as prone to constant amendment as the sentencing provisions themselves) would be chaotic. The defendant cannot be sentenced on one basis and simultaneously be made subject to licence and release provisions applicable to a different sentencing regime. Therefore for offenders convicted before 3 December 2012, even if sentenced after that date, the sentencing regime in force at the date of conviction applies. In the sentencing decisions now under consideration, the approach of the sentencing judges to this issue was correct.
In view of the detailed written submissions made for the purposes of these appeals, we should take the opportunity to underline a number of features of the regime which will apply to those convicted after 3 December 2012.
Imprisonment for life (life imprisonment)
There are now four situations in which the sentence of imprisonment for life arises for consideration.
Following conviction for murder, the sentencing provisions are unchanged. A sentence of life imprisonment is mandatory.
Following conviction for a second listed offence under s.224A, of the 2003 Act, inserted by s.122 of LASPO, a sentence of imprisonment for life "must" be imposed, unless the particular circumstances would make it unjust. (See s.224A(2)) In short, there is a discretionary power in the court to disapply what would otherwise be a provision requiring an obligatory sentence. It may nevertheless be convenient hereafter to distinguish between this new provision relating to life imprisonment (which we shall refer to as a statutory life sentence) and the existing and continuing discretionary life sentence.
The sentence of life imprisonment under s.225 of the 2003 Act following conviction for a "specified offence" continues in force; it has frequently been described as the discretionary life sentence. (See, for example, R v Wilkinson [2009] EWCA Crim. 1245). As the court explained in Attorney General's Ref: No: 55/2008 (2009) 2 Cr. App. R (S) 22:
"The court must consider whether the seriousness of the offence, or the offence and one or more associated offences, justifies the sentence. If it does, however much judicial discretion (or more accurately, judgment) has been introduced into the assessment of dangerousness … a sentence of imprisonment for life "must" be imposed if conditions in s.225(1) and (2) are established".
In the sense that it identifies the distinction between the mandatory life sentence following conviction for murder and the life sentence imposed in accordance with s.225. This description was correct, but it is open to the criticism that when the statutory conditions in s.225(1) and (2) are established it "must" be imposed. In that broad sense, therefore, this sentence, is also statutory, but it may only be imposed if justified by reference to the seriousness of the offence and the protection of the public in accordance with s.225(1) and (2).
The case of Edwards in this present group of cases provides a very good example of the circumstances in which a discretionary life sentence would continue to arise for consideration if he had been convicted after 3 December 2012. Despite his many convictions for knifepoint robbery, none of them fell within the ambit of the statutory life sentence. The public requires protection from a criminal who repeatedly holds up people owning or working in small shops at knifepoint. He is a danger to the public. The offences are serious. The judgment required of the sentencing court is to decide whether the provisions of s.225 of the 2003 Act apply. Although strictly speaking a reflection of the judgment rather than the discretion of the court, it will be convenient to continue to refer to life sentences imposed in accordance with these provisions as discretionary life sentences.
This leaves open the further question (addressed in the Criminal Law Review at (2013) Crim LR 508 in commentary on R v Cardwell [2012] EWCA Crim 3030) whether a sentence of life imprisonment may be imposed when the case does not fall within either the statutory life sentence or the discretionary life sentence analysed in the previous paragraphs. The jurisdiction to impose a life sentence in an appropriate case has survived the enactment of the 2003 Act and the changes to the sentencing regime affected by LASPO. If it had been intended to abolish it, the appropriate legislative change could readily have been made by provisions restricting the life sentence (other than the mandatory sentence) to the statutory sentence or the discretionary sentence under s.225(1) and (2). As it is, neither the 2003 Act, nor LASPO, imposed any limit on the power of the court to impose a sentence of life imprisonment in such cases. Some of these offences may involve a significant risk of serious harm to the public, but are not included within the list of "specified" offences in the dangerousness provisions in the 2003 Act. One obvious example is the offender who commits repeated offences of very serious drug supplying which justifies the imposition of the life sentence. In circumstances like these the court is not obliged to impose the sentence in accordance with s.225(2), but its discretion to do so is unaffected.
In reality, the occasions when this second form of discretionary life sentence is likely to be imposed will be rare, and no inconvenience has yet resulted from applying the description "discretionary" to both forms of sentence. We have reflected whether any advantages might accrue to sentencing courts if we were able to offer alternative descriptions which would identify the distinction between these two forms of discretionary life sentence. In reality, none is needed.
For those convicted after 3 December 2012, as a result of s.123 of LASPO the sentence of imprisonment for public protection (IPP) created for serious offences by s.225(1) and (3) of the 2003 Act will no longer be available. As we have explained, for dangerous offenders the statutory life sentence under s.224A of the 2003 Act has been abated and the discretionary life sentence remain. In relation to convictions returned before 3 December 2012 the protection of the public from dangerous offenders was achieved either by the discretionary life sentence or IPP. There are relatively minor distinctions between the two sentences which have no direct bearing on the issue of public protection. In relation to the discretionary life sentence, the court was theoretically able to make a whole life order, but, as far as we are aware, no such orders have been made or, if made, upheld. In relation to the IPP there was a supplementary jurisdiction in the Parole Board to give a direction that supervision under licence should come to an end 10 years after release.
In the overwhelming majority of cases these distinctions were irrelevant, and so the IPP was normally sufficient to address the protection of the public from a dangerous offender who would, if made subject to the order, continue to be detained until the Parole Board was satisfied that he no longer represented a risk to the public. (See R v Kehoe [2009] 1 Cr. App. R(S) 9). As the court observed in R v Wilkinson [2010] 1 Cr. App. R(S) 100:
"… as a matter of principle a discretionary life sentence under s.225 should continue to be reserved for...
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