Reference by the Criminal Cases Review Commission and Another (Respondent) Rahuel Delucca (Appellants) on Appeal From the Crown Court at Birmingham, HHJ Judge Inman and Another (Respondent) Graham Murray (Appellants) on Appeal From the Crown Court at Stafford, the Hon Mrs Justice Macur and Another (Respondent) Christopher Stubbings (Appellants)

JurisdictionEngland & Wales
JudgeThomas LJ,Saunders,Stadlen JJ
Judgment Date31 March 2010
Neutral Citation[2010] EWCA Crim 710
CourtCourt of Appeal (Criminal Division)
Date31 March 2010
Docket NumberCases No: 2009/03835/A9 2008/06962/A1,2009/03835/A9, 2008/06339/A5 and 2008/06962/A1

[2010] EWCA Crim 710

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CRIMINAL DIVISION)

Before: Lord Justice Thomas

Mr Justice Saunders

and

Mr Justice Stadlen

Cases No: 2009/03835/A9

2008/06339/A5

2008/06962/A1

Between
Reference by the Criminal Cases Review Commission
Regina
Respondent
and
Rahuel Delucca
Appellants
On Appeal From the Crown Court at Birmingham, HHJ Judge Inman
Regina
Respondent
and
Graham Murray
Appellants
On Appeal From the Crown Court at Stafford, the Hon Mrs Justice Macur
Regina
Respondent
and
Christopher Stubbings
Appellants

Mr G Byrne for the Appellant Delucca

Mr D Myerson QC for the Respondent in Delucca

Ms S Mahmood for the Appellant Murray

Mr J Dunstan for the Respondent in Murray

Mr D Whitehead for the Appellant (Stubbings)

Mr T Barnes QC for the Respondent in Stubbings

Miss K Wilkinson for the Secretary of State for Justice

Hearing date: 9 December 2009

Lord Justice Thomas

Lord Justice Thomas:

1

These appeals were heard together because they raised common issues as to the powers of the court in relation to the minimum term that can be imposed when sentences of Imprisonment for Public Protection (IPP) are passed under the provisions of the Criminal Justice Act 2003 ( CJA 2003). The issues that have in the result arisen for decision arise out of the difficulties facing a judge when he concludes that a sentence of IPP is necessary on one of the offences before him, but there are other offences in respect of which, if he had not imposed a sentence of IPP, it would have been necessary to impose a determinate term consecutive to the term he would have imposed on the specified offence. The specific issues are:

i) the extent to which the court, in determining whether the notional minimum term of two years for the specified offence under the amendments made in 2008 to the CJA 2003 have been satisfied, is entitled to take into account the other offences before the court;

ii) whether, when calculating a notional determinate sentence for the purpose of arriving at the minimum term, a court can, by taking into account the other offences before it, arrive at a notional determinate sentence for the specified offence that exceeds the statutory maximum in respect of the specified offence

2

It is accepted in each appeal that the offender is a dangerous offender within the meaning of the CJA 2003. It is not necessary for us to lengthen this judgment by setting out any matters that justified those findings.

3

We consider the first question (which arises in the appeal by Murray) has been answered affirmatively in R v C [2008] EWCA Crim 2790; the second has been answered expressly by this court in an earlier appeal— Delucca [2007] EWCA Crim 1455. However the Criminal Cases Review Commission (CCRC) in its reference has asked the court to reconsider that decision on the basis that the court was not referred to a previous decision of the court. We have concluded that the decision of this court in Delucca was not only correct, but supported by a number of other decisions of this court. However, we will, out of courtesy to the careful arguments put forward by the CCRC, give our answer at greater length.

4

In the event, no question as to the powers of the court arose on the third appeal, but in that appeal it was contended that the length of a minimum term imposed was manifestly excessive. That case, unusually, involved one of those at the centre of the production of child pornography. We will deal with the issues of law (on which the first two appeals turn) before dealing with the third appeal.

(1) The legislative background and the issues raised

(i) The 2003 Act and the guidance in Lang

5

To explain why the decision of this court in Delucca was correct and the first question was answered in R v C, we must summarise the way in which the provisions relating to minimum terms have developed and been commented on or interpreted by the courts. The difficulties have all risen out of the long history of interrelationship between indeterminate and determinate sentences, the necessity to fix minimum terms and the way in which sentencing legislation has been drafted. It appears to have been intended in 2000 that all the sentencing legislation should be included and retained in one statute which could then be amended as new provisions were needed. If that statute had been clear in its terms, set out principles and not been overly prescriptive in constraining the discretion of this court in developing the principles and then been updated instead of new provisions being included in other legislation, many of these difficulties, uncertainty and consequent expense would not have arisen and the law could be simpler and clearer for everyone. However the concepts of clarity and simplicity have not been, apparently, at the forefront of consideration by those who formulate policy and draft this type of legislation. The following paragraphs are but one illustration (of many) which demonstrate the necessity for a new approach to sentencing legislation.

6

That history appears to have begun as follows:

i) The practice of making determinate sentences concurrent with life sentences appears to have begun in R v Foy (1962) 46 Cr. App. R. 290 and R v Jones (1962) 46 Cr. App. R. 129 where the Attorney General appeared in person to assist the court. In the former the court observed that a determinate sentence imposed consecutively to an indeterminate sentence was no sentence at all; in the latter, it was made clear that imposing a life sentence consecutively to a determinate sentence was bad practice.

ii) Although a judge had power under the Murder (Abolition of Death Penalty) Act 1965 to fix a minimum term before the release of a person sentenced to life imprisonment for murder, the modern practice of the court in fixing minimum terms for discretionary and mandatory life sentences can be traced back to 1983. The Secretary of State introduced at that time a policy under which there would be a review by the Parole Board for release of all life prisoners fixed by reference to the expiry of the period necessary to meet the requirements of retribution and deterrence. Under this policy the judiciary were to advise on the period necessary for retribution and deterrence; the Secretary of State was to decide on safety for release. This practice which established the distinction between the two elements of a life sentence was applied to mandatory and discretionary life sentences. From 1987 a judge was required to express through the Lord Chief Justice his view on the penal element of non discretionary life sentences: see the judgment of Lord Mustill in R v SSHD ex p Doody [1994] AC 531 at 550–555.

7

In 1991, as a consequence of a decision of the Strasbourg Court in Thynne, Wilson & Gunnell v UK (1990) 13 ECHR 666, the first step was taken to place this practice on a statutory basis. S.34 of the Criminal Justice Act 1991 gave the judge power to fix in discretionary life sentence cases what was then known as the “tariff term”, “relevant” part or “specified” part and has become known as “the minimum term”. We shall use the expression minimum term. The section stated that the minimum term was to be fixed by taking into account “the seriousness of the offence, or the combination of the offence and other offences associated with it”. By sections 51(4) and s.31(2) of that same Act an offence was defined as associated with another if:

“(a) the offender is convicted of it in the proceedings in which he is convicted of the other offence, or (although convicted of it in earlier proceedings) is sentenced for it at the same time as he is sentenced for that offence; or

(b) the offender admits the commission of it in the proceedings in which he is sentenced for the other offence and requests the court to take it into consideration in sentencing him for that offence.”

That definition has been carried forward into s.161(1) of the Powers of Criminal Courts (Sentencing Act 2000) and s.305(1) of the CJA 2003.

8

The power to consider the question of release was given to the Parole Board which had to consider that question at the expiry of the minimum term. The legislative provision in s.34 was accompanied by a Practice Direction: Practice Direction (Crime: Life Sentences) [1993] 1 W.L.R. 223 which made it clear that the minimum term was to be that part of the sentence that was imposed for punishment and deterrence; this is now to be found in Part IV.47 of the Consolidated Criminal Practice Direction. In R v Marklew and Lambert [1999] 1 Cr. App. R.(S.) 6, this Court set out the approach that courts should adopt:

“the general approach is to decide first the determinate part of the sentence that the judge would have imposed if the need to protect the public and the potential danger of the offender had not required him to pass a life sentence. It is the imposition of the life sentence that protects the public and is necessitated by the risk that the defendant poses. That element is therefore not to be reflected in the determinate part of the sentence that the court would have imposed; the determinate part is therefore that part that would have been necessary to reflect punishment, retribution, and the need for deterrence. It is we consider important that the judge should, when passing sentence, make clear to the defendant what that determinate period would have been.

… In the case of adult offenders, we consider that again the general approach should be to begin consideration of the specified part under s.34 by taking half the determinate period that would have been passed; that determinate period will...

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