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Academic, Professional, & General
Blackstone's Criminal Practice 2006
Updates
Part E
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Blackstone's Criminal Practice 2006

Part E

Updates to Part E

May 2006

E1.2 Sentencing Guidelines

The Court of Appeal has confirmed in A-G's Ref (No 6 of 2006) [2006] EWCA Crim 1043 that the guidelines issued by the Sentencing Guidelines Council do not affect the rules governing minimum sentences for Class A drug trafficking offences or domestic burglary (Powers of Criminal Courts (Sentencing) Act 2000, ss 110 and 111 - see E6.1 and E6.2).

Author: MH

October 2005

E1.6 Reduction in Sentence for Guilty Pleas

The guidance given by the Sentencing Guidelines Council as to the effect of guilty pleas was applied in Forbes [2005] EWCA Crim 2069, in which the Court of Appeal held that some credit should be given for the appellant's guilty plea, even though the case was a bad one and the prosecution evidence was so strong that such a plea was almost inevitable. Richards J said:

'What was said in March [2002] 2 Cr App R (S) 448, 457 [[2002] EWCA Crim 551] about the existence of an exception where a plea, practically speaking, is inevitable needs to be viewed with some caution in the light of the guidance given by the Sentencing Guidelines Council - guidance which underlines the strong policy reasons why credit is generally to be given for a plea of guilty and why that credit should not be lost just because an offender would have little prospect of acquittal if he contested the case.'

Author: MH

July 2006

E1.6 Reduction in Sentence for Guilty Pleas

The guidance given by the Sentencing Guidelines Council as to the effect of guilty pleas was considered once again in A-G's References (Nos 14 and 15 of 2006); French and another [2006] EWCA Crim 1335 (the notorious 'baby rape' case) in which the Court of Appeal rejected each of the following arguments advanced on behalf of the Attorney-General, and upheld the one third discounts given to the offenders:

  1. The offenders had no alternative but to plead guilty on the facts of this case. It follows that the maximum reduction of one third should not have been given.
  2. Each offender should have intimated a guilty plea when interviewed by the police and before appearing before the court. This was a further reason for not according the maximum reduction of one third.
  3. The special provisions of the guideline in respect of murder indicate, inferentially, that in respect of other serious offences the sentencing judge should not permit the reduction to be disproportionate to the circumstances.

Lord Phillips CJ nevertheless added (at [56]):

This conclusion should not be taken as rejection of the suggestion that it is not satisfactory to award a discount of as much as one third where the case against a defendant is overwhelming or where the sentence is so long that the effect of such a discount might appear disproportionate. We believe, however, that these arguments of principle received detailed consideration by the Panel and the Council when the guideline was formulated. We are aware that many judges are not happy with aspects of the guideline and that it is one that the Council is likely to reconsider. The Council should treat this as a matter of urgency.

Author: MH

September 2006

E1.7 Reduction in Sentence for Assistance by Offender

The Serious Organised Crime and Police Act 2005 (Appeals under Section 74) Order 2006 (SI 2006 No. 2135) makes provision corresponding to provision in the Criminal Appeal Act 1968, with modifications, for the purposes of appeals in England and Wales under the Serious Organised Crime and Police Act 2005, s. 74(8). Part 2 of the Order relates to appeals to the Court of Appeal in relation to England and Wales and Part 3 allows, and makes provision in relation to, appeals to the House of Lords from the Court of Appeal in relation to England and Wales. Article 4 makes provision for the powers of the Court of Appeal on appeal. If the Court of Appeal determine to allow the appeal and if they think fit, they can vary the sentence imposed by the Crown Court.

July 2006

E1.11 Personal Mitigation

As to mitigation on account of co-operation with the police etc, so as to enable the arrests of other offenders (and the power of the Court of Appeal to take account of this where assistance is provided after conviction) see A [2006] EWCA Crim 1803.

Author: MH

May 2006

E2.6 Length of Discretionary Custodial Sentences

The problem of prison overcrowding and its potential relevance to sentencing has been considered twice more by the Court of Appeal: first in A-G's Ref (No 11 of 2006); Scarth [2006] EWCA Crim 856 and again a few days later in A-G's Ref (No 19 of 2006); Hoyle [2006] All ER (D) 123 (Apr). When passing sentence in Hoyle for offences of robbery and wounding, in which serious and gratuitous violence (including 29 minor stab wounds) had been inflicted on a disabled victim, the trial judge stated that because of the overcrowding problem he would not be imposing as long a sentence as he would otherwise have done. Concurrent sentences of three and four years which he then imposed were increased on appeal to six and eight years respectfully, and the Court of Appeal indicated that sentences totalling ten years should ordinarily have been imposed. The overcrowding of prisons might have been a relevant factor in lesser cases, where a community sentence might perhaps be justified in place of imprisonment, but in cases of such gravity the full sentence merited by such behaviour should be imposed, without regard to the state of the prisons.

Scarth concerned the imposition of a community penalty for the possession of a Class A drug (6.05 g of heroin) with intent to supply. As in Hoyle, prison overcrowding was cited by the trial judge as a reason for leniency (although the pre-sentence report was also a factor), and as in Hoyle the Court of Appeal's view was that such considerations could properly be taken into account only in marginal cases (those in which the decision was 'on the cusp'). In this case the offence was so serious that only a custodial sentence would suffice. A sentence of two years in a young offenders' institution was therefore substituted.

Author: MH

March 2006

E2.7 Crediting of Periods of Remand in Custody

The scope and effect of the Criminal Justice Act 2003, s. 240, was examined by the Court of Appeal in Barber [2006] EWCA Crim 162. Giving the judgment of the court, Swift J said:

"26. The present case gives us an opportunity to remind judges of their obligations under s 240, to which attention was drawn previously by this Court in the case of Oosthuizen [2005] EWCA Crim 1978. Judges should state the information required under the section clearly and unambiguously so that everyone present can readily understand it. If a judge intends that the period spent in custody on remand should count as part of the sentence, he should state that fact, together with the information required under s 240(5), in open court. If a judge decides not to give a direction under s 240(3) or to give a limited direction, he should say so and he should give reasons for his decision. However, obligations in connection with s 240 do not apply to judges alone. It is the duty of counsel, both prosecution and defence, to be alert to the requirements of the section, to bring the provisions of the section to the attention of the judge when it appears that he may have overlooked them and to seek immediate clarification of any ambiguities that may arise in the course of the judge's sentencing remarks. Prosecuting counsel should be particularly vigilant in this regard."

In Oosthuizen, Rose LJ said:

"24. In future, if, in an appropriate case, the judge fails to give a direction as required by s 240 (3), counsel for the prosecution, or the defence, should raise the matter with the Crown Court judge within 28 days, seeking a variation of the order under s 155 of the Powers of Criminal Courts (Sentencing) Act 2000. Even outside the 28 day period, it may be arguable that the Crown Court has such jurisdiction (see Saville 70 Cr App R 204) though, having heard no argument on the point, we express no concluded view. Non-direction, under s 240(3) will not, usually, be a ground of appeal to this Court, where the sentence passed in the Crown Court is otherwise appropriate."

The Criminal Justice Act 2003, s. 240(3), does not apply in relation to a day for which an offender was remanded in custody:

"(a) if on that day he was serving a sentence of imprisonment (and it was not a day on which he was on licence under Chapter 6 of Part 12 of the 2003 Act or Part 2 of the Criminal Justice Act 1991); or

(b) where the term of imprisonment referred to in subsection (1) of that section is ordered to be served consecutively on another term of imprisonment, if the length of that other term falls to be reduced by the same day by virtue of section 67 of the Criminal Justice Act 1967."

(Remand in Custody (Effect of Concurrent and Consecutive Sentences of Imprisonment) Rules 2005) (SI 2005 No. 2054)

Accordingly, no direction that time spent in custody on remand is to count as part of the sentence should be given when, for the whole or part of that time, the offender has been serving a sentence of imprisonment for another offence (Barber at [30]).

Author: MH

October 2005

E2.8 Concurrent and Consecutive Sentences

As to the imposition of consecutive sentences where the defendant has been convicted both of driving while disqualified and a related offence of aggravated vehicle taking) see Forbes [2005] EWCA Crim 2069, where Richards J said:

'The basic offence in the present case of aggravated vehicle taking is the taking of the vehicle, albeit that the manner of driving was a feature of the aggravated form of the offence. It seems to us that the offence of driving while disqualified is sufficiently distinct to make it permissible to impose a consecutive sentence if the circumstances otherwise warrant it. Whether or not concurrent sentences would generally be imposed, it is not the case that they must always be imposed. Accordingly, we see nothing wrong with the judge's approach in imposing consecutive sentences.'

Click here for full text of the judgment.

Author: MH

March 2006

E2.8 Concurrent and Consecutive Custodial Sentences

Bruce [2006] All ER (D) 45 (Feb) (3 February 2006, CA) examines the sentencing problems that may arise in consequence of the Criminal Justice Act 2003, s. 265, by which:

A court sentencing a person to a term of imprisonment may not order or direct that the term is to commence on the expiry of any other sentence of imprisonment from which he has been released early under this Chapter

The defendant in this case had been sentenced to nine and a half years' imprisonment on 27th October 1999 for an offence of drugs importation. He had been released on licence on 23rd February 2004, but his licence had been revoked and he had been recalled in consequence of an offence of assault occasioning actual bodily harm which he committed on 19th February 2005. He was therefore liable, at worst, to remain in custody as a serving prisoner until his entitlement to release when three-quarters of the nine-and-a-half year sentence had been served. The date of that entitlement would have been 9th July 2006.

The judge before whom he was convicted of the assault imposed a sentence of 18 months' imprisonment for it, which the Court of Appeal considered appropriate, but also ordered that this should run consecutively from the end of the existing sentence; and that order was unlawful by virtue of s. 265. On the other hand, the imposition of a concurrent sentence would have added nothing to the unexpired portion of the original sentence for which he had been recalled.

In those circumstances, said the Court of Appeal, a proper sentence would be a return to custody under the Powers of Criminal Courts (Sentencing) Act 2000, s. 116 for a period of 18 months of the unexpired sentence, to be followed by the sentence of 18 months for the offence of assault.

Author: MH

October 2005

E4.1 Murder: Life Imprisonment

In the notorious case of Re Huntley (application under para 6 of Sch 22 to the Criminal Justice Act 2003) (2005) Daily Telegraph, 6 October 2005, there was in fact no proof of premeditation or of a sexual motive for the murders of the two child victims. It followed that a whole life tariff could not be imposed. The court identified a starting period of 30 years, but because of various aggravating features (in particular, he killed one of the girls to avoid that girl disclosing his murder of the first, and concealed and attempted to destroy the bodies of both of his victims) and his lack of remorse, a substantial upward adjustment to the starting point was appropriate, leading to a final tariff of 40 years.

Author: MH

December 2005

E4.1 Murder: Life Imprisonment

The guidance previously given by the Court of Appeal in Sullivan [2004] EWCA Crim 1762, [2005] 1 Cr App R 23 (in respect of murderers to whom the transitory provisions apply) and Peters [2004] EWCA Crim 1762 (in respect of young offenders, guilty pleas and intent to do GBH rather than kill) is now supplemented by further guidance given in Jones and other appeals [2005] EWCA Crim 3115, in respect of cases to which the transitory provisions had no application, and in which whole life tariffs or 30-year starting points had been adopted.

Lord Phillips CJ began by making the following general observations (at [6] - [9]):

  1. 'Perhaps the most important general point to be made in respect of these cases is one that this court made in both Sullivan and Peters. The guidance given by Schedule 21 is provided to assist the judge to determine the appropriate sentence. The judge must have regard to the guidance, but each case will depend critically on its particular facts. If the judge concludes that it is appropriate to follow a course that does not appear to reflect the guidance, the judge should explain the reason for this.
  2. The next point to make is that there are huge gaps between the starting points. The difference between 15 and 30 years' detention is enormous. The difference between thirty years and whole life may, depending on the age of the offender, be even greater. The three starting points provide a very broad framework for the sentencing exercise. They are so far apart that it will often be impossible to divorce the choice of starting point from the application of aggravating and mitigating factors. This is expressly recognised by paragraph 8 of Schedule 21. Where aggravating factors have led the judge to adopt the higher of two potential starting points, or mitigating facts have led him to adopt the lower, he must be careful not to apply those factors a second time when making to that starting point any adjustment that may be appropriate to reflect the other material facts.
  3. The starting points give the judge guidance as to the range within which the appropriate sentence is likely to fall having regard to the more salient features of the offence, but even then, as paragraph 9 recognises, "detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point) or in the making of a whole life order". The starting points must not be used mechanistically so as to produce, in effect, three different categories of murder. Full regard must be had to the features of the individual case so that the sentence truly reflects the seriousness of the particular offence.
  4. We emphasise seriousness because that is the focus of section 269 and Schedule 21. Murder is so serious an offence that it carries a life sentence. As this court pointed out in Sullivan section 142 of the 2003 Act does not apply to murder but section 143 is of relevance. In the context of culpability, the mental state of the offender is of obvious importance. All but one of the mitigating factors in paragraph 11 of Schedule 21 refer to this. A killing for which there is no rational explanation may reflect a mental disorder or disability in the offender. Such murders are sometimes more horrifying than killings that are motivated. It is important to bear in mind that in the case of such a murder it is the task of the parole board to ensure that the offender is not released after serving the minimum term unless this presents no danger to the public. Protection of the public is not a relevant factor in fixing the minimum term.

As to the whole life tariff, Lord Phillips said:

  1. 'The scheme of Schedule 21 is that the judge first determines the starting point and then considers whether it is appropriate to adjust the sentence upwards or downwards to take account of aggravating or mitigating factors. This approach is manifestly not possible in respect of a whole life order. A whole life order should be imposed where the seriousness of the offending is so exceptionally high that just punishment requires the offender to be kept in prison for the rest of his or her life. Often, perhaps usually, where such an order is called for the case will not be on the borderline. The facts of the case, considered as a whole, will leave the judge in no doubt that the offender must be kept in prison for the rest of his or her life. Indeed if the judge is in doubt this may well be an indication that a finite minimum term which leaves open the possibility that the offender may be released for the final years of his or her life is the appropriate disposal. To be imprisoned for a finite period of 30 years or more is a very severe penalty. If the case includes one or more of the factors set out in paragraph 4 (2) it is likely to be a case that calls for a whole life order, but the judge must consider all the material facts before concluding that a very lengthy finite term will not be a sufficiently severe penalty.'

As to guilty pleas:

  1. 'Where the judge decides that it is appropriate to fix a minimum term, an appropriate credit for the plea of guilty should be deducted from the minimum term which the judge would have imposed had there been no plea of guilty. The Sentencing Guidelines Council has issued Guidelines as to the approach to be adopted to giving credit for a guilty plea. That guidance deals specifically with pleas of guilty to murder. . . . [It] states, "Where a Court determines that there should be a whole life minimum term, there will be no reduction for a guilty plea".'

The difficulty here is that the guideline cannot preclude the court from its statutory duty under the Criminal Justice Act 2003, s 144, to 'have regard to' a guilty plea. On this point the court ruled that, where a judge has decided that it is appropriate to fix a minimum term, appropriate credit for the plea of guilty should be deducted from the minimum term which the judge would have imposed had there been no plea of guilty. However, in cases involving guilty pleas and whole life orders, the court should consider the fact that the defendant has pleaded guilty to murder when deciding whether it is appropriate to order a whole life term. That is true of every mitigating factor. Where a case clearly calls for the imposition of a whole life sentence (i.e. it is not borderline) there is no need for a judge to spell out expressly that (whilst he has had regard to the guilty plea) the plea has not affected the sentence.

Author: MH

January 2006

E4.1 Murder: Life Imprisonment

The transitional provisions in the Criminal Justice Act 2003, sch. 22 (and in particular para. 11(1)) were examined and found to be wanting by the House of Lords in R (on the application of Hammond) v Secretary of State for the Home Department [2005] UKHL 69, [2005] All ER (D) 02 (Dec). Affirming the earlier decision of the Divisional Court ([2004] EWHC 2753 (Admin)), the appellate committee held that para. 11(1), by which an application under para. 3 or a reference under para. 6 is to be determined by a single judge of the High Court without an oral hearing, is (as it stands) incompatible with the ECHR and should be read subject to an implied condition that the judge has a discretion to order an oral hearing, where such a hearing is required to comply with a prisoner's rights under Artcile 6(1). This discretion may be exercised when, and only when, an oral hearing is necessary to meet the requirement of fairness under the Convention.

Author: MH

March 2006

E4.1 Murder: Life Imprisonment

A murder may be a 'sadistic killing' so as to justify a 30-year starting point when determining the appropriate tariff under the Criminal Justice Act 2003, sch. 21 even if any cruelty involved was not motivated by any sadistic sexual perversion. See A-G's References (Nos 108 and 109 of 2005); Swindon and another (2006) The Times, 22 February 2006.

Author: MH

16 November 2005

E5.1 Overview of Provisions

Lang [2005] EWCA Crim 2684, (2005) The Times, 10 November 2005 contains a lucid account of the provisions of the Criminal Justice Act 2003 relating to the new structure of discretionary life sentences, imprisonment or detention for public protection, and extended sentences. The key to the application of these provisions, contained in ss. 225(1) and 226(1) (and it may be added in relation to extended sentences under ss. 227(1) and 228(1)) is serious harm: the court must consider that there is a significant risk to members of the public (an all-embracing term which does not exclude groups such as prison officers etc.) occasioned by the commission by the offender of further specified offences. In relation to ss. 225 and 226 the court must consider dangerousness. There may be exceptional cases where the offence itself is so serious that an indeterminate sentence is required regardless of the risk to the public.

The procedure for fixing minimum terms for these new sentences should be as before the Act in relation to discretionary and automatic life sentences. The concept of serious harm is well known: see Bowler 15 Cr App R (S) 78 and Collard [2004] EWCA Crim 1664 which continue to apply.

In relation to sexual offences, an offender who has committed offences both before and after 4 April 2005 falls to be sentenced under two regimes. Sentence should be passed under the new regime with no separate penalty imposed for the earlier offences. This will not be possible if the earlier offences are more serious than the later ones. If sentenced for offences only some of which are serious, shorter concurrent sentences should be passed for the others.

Factors to be considered in assessing risk are as follows.

  1. The risk identified must be significant.
  2. Pre-sentence reports will be required showing the nature and circumstances of the current offence, the history of offending (including past sentences and any pattern of offending), relevant social and economic factors such as drug or alcohol abuse, and the offender"s attitudes and thinking.
  3. Significant risk must not be assumed because the foreseen specified offence was serious.
  4. If the foreseen specified offence is not serious, there will be few cases where such risk of serious harm would be regarded as significant.
  5. If a rebuttable presumption arose under s. 229(3), the court is accorded a discretion to conclude that there is no significant risk.
  6. Where the offender is aged under 18 or is an adult with no previous convictions when the specified offence was committed, the court's discretion under s. 229(2) is not constrained by the presumption in s. 229(3).
  7. With particularly young offenders indeterminate sentences may be inappropriate for serious offences where there is a risk of harm from further offences, and see D [2005] EWCA Crim 2282.
  8. The Act is intended to protect the public from serious harm and not to provide for the imposition of indeterminate sentences for minor offences.
  9. Sentencers should give reasons for their conclusions particularly as to whether or not there was a significant risk of further offences and/or serious harm and for making (or not making) the statutory assumption.

Click here for a link to the full judgment in Lang.

Click here for a link to the Criminal Justice Act 2003, ss. 225 to 236 (dangerous offenders).

Author: LL

July 2006

E5.1 Overview of Provisions

References in the Criminal Justice Act 2003, ss. 225 to 228 to 'persons aged 18 or over' must be construed as applying to persons who are of such an age at the date of conviction: see Robson [2006] EWCA Crim 1414.

Author: MH

August 2006

E5.1 Overview of Provisions

Lang [2005] EWCA Crim 2684 (considered in the December 2005 update) was followed in O'Brien and others [2006] EWCA Crim 1741. The conjoined appeals in this case raised two principal questions, namely:

  1. Can a sentence of imprisonment for public protection ("IPP") under the CJA 2003, s. 225(2), be ordered to run consecutively to another sentence of IPP?
  2. If a court wishes to order a defendant to serve the remaining period of a previous sentence of imprisonment pursuant to the Powers of Criminal Courts (Sentencing) Act 2003, s. 116, and is also sentencing the defendant to a sentence of IPP, how may that be achieved?

As to the first question, the court confirmed that there is no provision which forbids the imposition of consecutive indeterminate sentences or the imposition of an indeterminate sentence consecutive to another period of imprisonment. The situation has not changed in that respect since Jones [1961] 3 All ER 668. Nevertheless, said Hooper LJ, giving the judgment of the court (at [59]):

We share the view expressed in that case that it is undesirable to impose consecutive indeterminate sentences or order an indeterminate sentence to be served consecutively to another period of imprisonment. Common sense suggests that a sentence of life imprisonment or of IPP starts immediately on its imposition. Given the difficulties that may be encountered already in determining when a prisoner must be released or is eligible for parole, it seems to us to be much easier not to compound those difficulties by making indeterminate sentences consecutive to other sentences or periods in custody.

If, however, the judge wants the period before which the defendant will become eligible for parole to be consecutive to an existing sentence or to follow a period imposed under the Powers of Criminal Courts (Sentencing) Act 2000, s. 116, he may ensure that the sentence includes the balance of the existing sentence or the s. 116 period by increasing the notional determinate term to reflect that balance or that period. The authority for so doing is Haywood [2000] 2 Cr App R (S) 418 (and see also Szczerba [2002] EWCA Crim 440). Hooper LJ explained (at [67] - [68]):

On our reading of Haywood the Recorder achieved the desired objective by increasing the notional determinate term and not by dividing that term by (up to) two thirds rather than by a half to reach the minimum term. We think that increasing the notional determinate sentence is the better way. Indeed, for cases to which s 244 of the Criminal Justice Act 2003 applies . . . the notional determinate sentence should be divided by half to arrive at the specified minimum term.

In our view any section 116 period should be treated in the same way, that is by adding it to the notional determinate term which the judge would otherwise have set. As we understand it, a section 116 period attracts the early release provisions. A defendant sentenced to three years imprisonment to be served following a one year section 116 period will be released after two years. By adding the period to the notional determinate term and then halving it, the prisoner is in the same position as he would have been if the judge had passed a determinate term of the same length as the notional determinate term and made it consecutive to the section 116 period.

Hooper LJ concluded by adding two further observations (at [69] - [70]):

Assume that a judge is imposing concurrent indeterminate sentences for two or more offences with corresponding concurrent minimum terms. Assume that, if he had not passed indeterminate sentences, he would have passed determinate custodial sentences for those offences consecutive to each other. How does he reflect in the notional determinate term the totality of the offending? The answer is, we believe, either to choose the same notional determinate term for all of the offences or take the most serious and make the notional determinate term reflect the totality of the offending.

Given our view that it is not unlawful but merely undesirable to make consecutive indeterminate sentences or to make them consecutive to some other term or period of imprisonment, permission to appeal should not normally be granted on this ground only. Our reason for saying this is that if an appeal succeeds on this point only, then it is unlikely that the length of time which the prisoner will have to serve before being eligible for parole will be altered. In such circumstances there would be no practical point in giving permission to appeal.

Author: MH

January 2006

E5.5 Imprisonment for Public Protection

In Duncan [2005] All ER (D) 150 (Dec) the Court of Appeal held that in a case involving a defendant who had a serious addiction to child pornography and had downloaded a huge number of photo images and video clips (including some of the worst kind) after previously trying to stop, a judge had been right to impose a sentence of imprisonment for public protection under the Criminal Justice Act 2003, s. 225. There was a significant risk of the defendant committing further specified offences. It followed that there was a significant risk of serious harm to the public, and in those circumstances the trial judge had no choice but to impose such a sentence.

See also Lang and other appeals [2005] EWCA Crim 2864.

Author: MH

October 2005

E5.6 Detention for Life or Detention for Public Protection

Some guidance as to the proper approach to the imposition of sentences of detention for pubic protection under the Criminal Justice Act 2003, s 226(3) is provided by D (Hollie Louise) [2005] EWCA Crim 2292, in which the Court of Appeal ruled that such a sentence (including a minimum of 12 months' detention) could not be justified in the case of a girl of 13 who had pleaded guilty to a series of offences including a robbery that involved a violent 20 minute assault on a younger child. In light of reports showing that the appellant was now making good progress towards controlling her behaviour, the Court of Appeal quashed the indeterminate sentence and substituted an extended sentence of four years with a custodial term of 12 months and a three-year extension, under the Criminal Justice Act 2003, s 228.

Author: MH

October 2005

E5.8 Extended Sentence: Persons under 18

See the note on D (Hollie Louise) [2005] EWCA Crim 2292 (E5.6 above).

Author: MH

1 September 2006

E5.9 Imprisonment for Public Protection: Assessment of Dangerousness

In Majid Ali Manir [2006] All ER (D) 132 (August) a sentence for public protection with a minimum period of 18 months was upheld on a defendant who, having taken drink, committed a serious sexual assault (which, had it not been interrupted, might have become rape) on a young woman to whom he and another had been speaking. The defendant was on licence for a driving offence. He had a previous conviction for robbery in which he had used a screwdriver as a weapon. While the defendant did not suffer from a recognised psychiatric illness, a pre-sentence report noted that he had a high degree of culpability and pre-meditation. He posed a high risk of re-offending and committing serious harm. The defendant submitted that, in the light of his early guilty plea, the fact that he had no previous history of sexual offending, and the fact that the victim had not in fact suffered serious harm, a determinate sentence of three years' imprisonment would have been appropriate.

Sexual assault is a specified offence under the CJA 2003, s. 224 and sch. 15, part 2, para. 104. There was evidence before the trial judge to indicate that there was a high risk that the defendant would commit further serious offences and that he might cause serious physical or psychological harm to his victim. The judge was entitled to make an assessment of dangerousness on the material before him and the Court of Appeal would not interfere with his finding.

The Court followed Lang et al [2006] 2 All ER 410, [2005] EWCA Crim 2864, which decides that the seriousness of an offence (under s. 225(2)(b)) relates both to the offence and to the dangerousness or culpability of the offender. It is clear from this case (and indeed from Lang at paras. [7] and 17]) that the relevant risk is one of serious re-offending and is not restricted to a risk of re-offending in the same way. It would seem that the element of violence involved both in the instant case and the prior robbery is the most significant indicator of dangerousness (taken with the defendant's culpability and pre-meditation).

Author: LL

May 2006

E6.1 Minimum Custodial Sentences for Class A Drugs Offences

The Court of Appeal has confirmed in A-G's Ref (No 6 of 2006) [2006] EWCA Crim 1043 that the guidelines issued by the Sentencing Guidelines Council (see E1.2) do not affect the rules governing minimum sentences for Class A drug-trafficking offences.

Author: MH

May 2006

E6.2 Minimum Custodial Sentences for Domestic Burglary

The Court of Appeal has confirmed in A-G's Ref (No 6 of 2006) [2006] EWCA Crim 1043 that the guidelines issued by the Sentencing Guidelines Council (see E1.2) do not affect the rules governing minimum sentences for domestic burglary.

Author: MH

30 September 2005

E6.3 Minimum custodial sentences for firearms offences

In Rehman [2005] EWCA Crim 2056, (2005) The Times, 27 September 2005, the Court of Appeal considered the interpretation of the Firearms Act 1968, s. 51A. It held that, in order not to produce arbitrary results under an offence regime which included offences of strict liability relating to firearms, s. 51A should be so interpreted that circumstances will be regarded as exceptional, and therefore as justifying a departure from the normal regime, when to do otherwise would result in an arbitrary and disproportionate sentence. The fact that an offender was unfit to serve a five-year sentence or was of very advanced years would be relevant. Circumstances should not be divided into those that were capable of being exceptional and those that were not.

Author: LL

October 2005

E6.3 Minimum Custodial Sentences for Firearms Offences (second update)

As to exceptional circumstances that may justify a sentence of less than five years, see Mehmet [2005] EWCA Crim 2074, in which a combination of the following circumstances was held to be exceptional (although it seems that none would have been if taken in isolation): (i) that the weapon had lawfully been in the defendant's possession for some time; (ii) the defendant had been in a state of depression during the period of grace and had not been aware of what had happened; and (iii) the nature of the weapon (a gas cartridge revolver), which had originally been perfectly lawful. A sentence of two and a half years was substituted.

See also Rehman [2005] EWCA Crim 2056, (2005) The Times, 27 September 2005 (update 30 September 2005 above).

Author: MH

April 2006

E6.3 Minimum Custodial Sentences for Firearms Offences

The maze of prescriptive and prohibitive sentencing legislation through which sentencing courts must navigate is becoming steadily more complex, and in some cases can appear bewilderingly contradictory. In Campbell [2006] EWCA Crim 726, the Court of Appeal had to consider two conflicting statutory directives. Where applicable, the Firearms Act 1968, s 51A, requires the imposition of a minimum sentence of five years' imprisonment on an offender aged 18 or over at the relevant time; but by the Powers of Criminal Courts (Sentencing) Act 2000, s 89(1),

'Subject to subsection (2) below, no court shall (a) pass a sentence of imprisonment on a person for an offence if he is aged under 21 when convicted of the offence'.

The Criminal Justice and Courts Services Act 2000 provides for the amendment of s 89(1) so that it will apply to those 'under 18' rather than to those 'under 21', but at the date of the hearing (and at the date of writing) that provision had yet to come into force. Moreover, the Secretary of State had failed to exercise his powers under the Criminal Justice Act 2003, s 333, so to make supplementary, consequential or transitional provisions relating the issue.

Faced with this regrettable conflict, the court decided that Parliament's clear intention was reflected in s 89(1) and a sentence of four years' in a young offender institution was substituted.

See also A (appeal under s 58 of the Criminal Justice Act 2003) [2005] All ER (D) 242 (Dec).

Author: MH

3 November 2005

E11.2; C3.39 Breach of Order: Proof of identity

West Yorkshire Probation Board v Boulter (Charles Edward) [2005] EWHC 2342 (Admin) considers the standard and mode of proving that a person charged on an information with breach of a community rehabilitation order (CRO) is the same person as he against whom the order was made. In this case the prosecution showed that the respondent and the person named in the order shared the same names, addresses and date of birth. The respondent did not appear in person before the court to contest these matters. The justices concluded that the matching of personal details with those on a certificate of conviction was not and could not as a matter of law suffice to prove identity.

The Divisional Court concluded that no such categorical rule exists. Here, there was a coincidence of personal details, and the respondents name was an unusual one. Whether the evidence is sufficient to prove to the criminal standard (that being the appropriate standard in such proceedings as this) depends on all the facts of the case. When magistrates have evidence of coincidence of personal details such as they had in the instant case it is open to them to draw an inference that he is the same person. Whether that inference should be drawn depends on all the facts of the case. The power to reach such a conclusion is independent of the power to draw an inference from silence under the Criminal Justice and Public Order Act 1994, s. 35 (which did not apply here because the respondent did not appear in person).

The same problem arises in proving identity in cases of driving while disqualified. It would seem that the magistrates in the instant case were not referred to all the authorities cited in Blackstone's Criminal Practice, C3.39. Derwentside Justice, ex parte Heaviside [1996] RTR 384 was distinguished, and Olakunori v DPP [1998] COD 443 was followed.

Author: LL

November 2005

E11.3 Breach of Community Order

Any alleged breach of a community order is a criminal matter and requires proof to a criminal standard. Where in proceedings for an alleged breach of an order there is evidence that the person before the court has the same name, date of birth and address as the person who was previously convicted and made subject to the order, it is open to the court to draw the inference that he is the same person. This inference should be drawn unless there are other factors which would indicate the contrary: West Yorkshire Probation Board v Boulter [2005] EWHC 2342 (Admin).

Click here for the full text of the judgment.

Author: MH

February 2006

E18.1 Power to Make Compensation Orders

Quigley v Stokes [1977] 1 WLR 434 was applied in Divers [2006] All ER (D) 210 (Jan), 27 January 2006, CA in which D had taken V's car and his accomplice had then driven it in such a way as to damage both it and other vehicles. At trial, compensation orders were imposed against the defendant, in respect of the damage caused to all three cars; but on appeal it was held that, by virtue of the Powers of Criminal Courts Act 2000, s. 130(5), compensation was payable only to the owner of the vehicle that had been taken without consent.

Author: MH

24 August 2006

E21.15 Confiscation Order: Reconsideration

McKinsley v CPS [2006] EWHC Civ 1092;(2006) The Times, 22 August 2006, though decided under the Drug Trafficking Act 1994, s. 17 will apply also to the Proceeds of Crime Act 2002, s. 23. In an application for a certificate of inadequacy, the court is concerned only with the current state of the defendant's assets. It is not concerned with whether an error had been made as to the amount of the confiscation order. A defendant who considers that such an error was made has a statutory right of appeal. If the defendant is out of time the Court of Appeal (Criminal Division) will consider the application to extend time and the leave application on their merits. If there has been an appeal, the defendant may apply to the Criminal Cases Review Commission to refer the matter to the Court. The Administrative Court has no jurisdiction in certificate of inadequacy proceedings to go behind the basis of the confiscation order even if there was a manifest error or there is fresh material to be considered, and an attempt to get the Court to do so was an abuse of the process of the court. The same preclusive rule will apply under the 2002 Act in respect of applications to the Crown Court (Gokal v. Serious Fraud Office, [2001]] EWCA Civ 368 followed).

Author: LL

November 2005

E21.6 Determination of Benefit from Criminal Conduct

In proceedings brought under the Drug Trafficking Act 1984, it was held in Odesanya [2005] All ER (D) 221 (Oct) that, where drugs of a given value imported by the defendant had been intercepted and seized and there was evidence linking him to an earlier (but successful) importation, it could be assumed in the absence of evidence to the contrary that the earlier importation involved drugs of a similar quantity and value to those seized in the course of the second operation; and a confiscation order could be imposed accordingly.

Author: MH

12 January 2006

E21.6 Determination of Benefit from Criminal Conduct (second update)

In Bakewell [2006] EWCA Crim 2 the benefit to be attributed to the defendant, who acted as a facilitator in importing smuggled cigarettes on behalf of another, for the purposes of the Proceeds of Crime Act 2002, s 6 was held not to be the consideration which the defendant was to receive from his principal (in this case tyres to the value of £10,000) but rather the value of the duty evaded on the cigarettes (almost £400,000). A smuggler who evades duty which should be paid on importation thereby obtains a pecuniary advantage, rendering him liable to a confiscation order in the amount of the duty evaded - whatever the subsequent fate of the contraband might be and whatever the smuggler's role would have been in dealing with or profiting from that contraband: Cadnam Smith [2002] 1 WLR 54 applied.

In this case it was argued that such a finding was precluded by the defendant's basis of plea, namely that he was to receive the tyres free of charge but was not going to receive any profit from the sale It was held that this was not a basis of plea which precluded the assessment of benefit on the basis of the value of duty evaded. It was no more than a statement of the consideration to be paid to the defendant for acting as a facilitator: Ellingham [2004] EWCA Crim 3446 followed.

Click here for the full text of the judgment.

Author: LL

February 2006

E21.6 Determination of Benefit from Criminal Conduct (third update)

Smith (David) [2001] UKHL 68 and Lazarus [2004] EWCA Crim 2297 were amongst the authorities considered by the Court of Appeal in Bakewell [2006] EWCA Crim 2, in which the prosecution successfully appealed against a confiscation order for £10,000 made against the defendant, and had it raised to a total of £403,959.67.

A huge consignment of cigarettes on which no duty had been paid was found hidden behind a load of tyres in a container imported by the defendant. He pleaded guilty to the importation, but insisted that his share of the proceeds was to have been confined to the tyres themselves, valued at just £10,000, and this was the basis of the original confiscation order; but as the Court of Appeal observed, this order did not address the fact that the defendant was responsible for the importation and storage of the cigarettes, and had derived a pecuniary advantage within the meaning of the subsection immediately upon the importation. Until the duty of £393,959.67 on the cigarettes was paid, he would continue to maintain the pecuniary advantage that he had obtained on the importation. The ultimate fate of the cigarettes was irrelevant, as was the question of how the profits of that crime were eventually to have been divided.

Author: MH

April 2006

E21.6 Determination of Benefit from Criminal Conduct

The concept of benefiting from the obtaining of property or of a pecuniary advantage has been further examined by the civil and criminal divisions of the Court of Appeal in Jennings v Crown Prosecution Service [2005] EWCA Civ 746 and Byatt [2006] All ER (D) 484 (Mar). It is clear that D may be deemed to have benefited from criminal conduct even though that benefit was almost immediately dissipated or lost, but difficulties may arise where he has been involved in a criminal enterprise without at any stage gaining anything for himself. In Jennings, Laws LJ said:

"The defendant . . . should have been instrumental in getting the property out of the crime. His acts must have been a cause of that being done. Not necessarily the only cause: there may, plainly, be other actors playing their parts. All that is required is that the defendant's acts should have contributed, to a non-trivial (that is, not de minimis) extent, to the getting of the property. This is no more than an instance of the common law's conventional approach to questions of causation."

In contrast, Byatt was a case in which D joined a conspiracy to rob, but withdrew from this well before the actual commission of the offence by two of the remaining conspirators. In those circumstances, it could not be said that he had obtained any benefit at all.

Author: MH

4 November 2005

E21.8; B16.2 Cheating the Public Revenue: Confiscation Orders

Stannard [2005] EWCA Crim 2717, although decided under the provisions of the Criminal Justice Act 1988, is of importance under the regime established by the Proceeds of Crime Act 2002.

Stannard was convicted of two counts of cheating the revenue of corporation tax by claiming or causing to be claimed a deduction against profits for interest paid in advance by two companies to Anglo-Austrian Finance Limited when in truth and in fact no such transaction had taken place. The scheme was for Stannard's company to acquire the two target companies for their balance sheet value plus an amount equal to approximately half of the corporation tax liability. Having acquired the companies, Stannard arranged for the creation of false documents designed to give the impression that Anglo-Austrian had subscribed for bearer debenture bonds on which interest would be payable in advance.

On appeal the issue was as to the amount of realisable benefit. Stannard claimed that he was not a shareholder of either of the two companies involved, but merely the beneficiary of a discretionary trust, so that it would be inappropriate to lift the corporate veil. The Court rejected this contention. The judge below had in substance found that there was no trust. Stannard's control was inconsistent with the existence of a trust. The companies were effectively controlled by Stannard. It was therefore proper to lift the veil with a view to determining what assets were his and realisable.

The issue further arose, in the context of determining realisable property, as to what the ingredients of the offence were and when it took place. The actual acquisitions were not in themselves criminal. The scheme of fraud had, however, to be looked at as a whole. The substance of the cheat was the creation of the false debentures and the extraction of money on the strength of them. This could only have been done with a view either to submitting no tax returns or false tax returns. On the basis of that conduct charges of cheating the revenue could be laid and while the indictments took account of the later event of submitting false returns, these events were not an essential ingredient of the offence. The substance of the offence was in earlier transactions, which preceded gifts in issue in the case. That date was relevant for the purpose of the confiscation proceedings.

The offence could be proved on the basis of an omission, by deliberate conduct prejudicing the Revenue's right to the tax in question, and can be established without proof of loss from the cheat.

Click here for a link to the full judgment in Stannard.

Author: MH

7 March 2006

E21.8 Determination of the Recoverable Amount

Carter et al [2006] EWCA Crim 416 concerns the computation of benefit for the purposes of the Criminal Justice Act 1988, s. 71; the judgment does however also affect the interpretation of the word "benefit" in the Proceeds of Crime Act 2002, s. 7.

These were offences of obtaining employment by deception and conspiracy to use false instruments arising out of illegal gang mastering. The workers, of whom VK and DL were two, asserted that they were entitled to work and used forged documents purportedly issued by the Home Office in aid of the deception. The activities were organised by RK through a private company (Ultimate Source) in which he had a major interest. Carter was convicted of money laundering. His appeal dealt only with sentence and is not further considered here.

The benefit attributed to RK was a proportionate share of the monies obtained by Ultimate Source. In the case of VK and DL, the benefit attributed to their offences of obtaining employment by deception was the whole of the moneys which they earned through their illegal employment. These findings were challenged before the Court of Appeal.

The Court held that the attribution of benefit to R was correct in principle. He controlled the company and the payments which it received were benefits to him. Although he was not the only person interested in the company, the whole of the benefit rather than, as in this case, a part of it could have been so attributed. Indeed, where there is more than one defendant a confiscation order may be made against each for the full amount. This wider proposition is, however, subject to a forthcoming decision of the House of Lords following the Court of Appeal's ruling in May [2005] EWCA Crim 97.

The benefit obtained is not a net figure after deduction of costs, or distribution or sharing the proceeds with others and a person who controls funds in a bank account has obtained them.

The Court, in the cases of VK and DL, declined for the purposes of assessing benefit to distinguish between the obtaining of employment and the money obtained from work done. The false representation to obtain work continues throughout the period of work. The benefit is, therefore, the amount obtained through work King (David) [1987] 1 QB 547 foll'd, Lewis (1922) cited in ll Russell on Crime 1964 at p. 1186 dist'd.

The sentence of seven years' imprisonment passed against R was severe but appropriate because it was necessary to uphold the integrity of immigration and asylum procedures.

Finally, this case, in respect of certain convictions against VK and DL affords an example of inconsistency of verdicts which arises not because the verdicts were necessarily inconsistent but because they could not be reconciled having regard to the way in which the prosecution put its case.

Click here for the full text of the judgment.

Author: MH

March 2006

E21.8 Determination of the Recoverable Amount

Dore [1997] 2 Cr App R (S) 152 was followed in Ajibade [2006] All ER (D) 54 (Feb) (6 February 2006, CA), in which the Court of Appeal held that nothing in the Proceeds of Crime Act 2002 affected the principle stated in that case, namely that illegal trafficked drugs have no lawful market value for the purpose of making a confiscation order. See to similar effect Hussain [2006] All ER (D) 395 (Feb) (28 February 2006, CA).

Author: MH

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July 2006

E21.9 Determination of the Available Amount

Richards v Richards; Crown Prosecution Service v Richards [2006] EWCA Civ 849 makes it clear that where, in family proceedings, any of the partners assets are tainted with criminality and subject to confiscation they should not ordinarily be distributed between them.

The court did not go so far as to hold that there could be no exceptions to this rule. Account might perhaps need to be taken of the needs of an innocent and seriously disabled child living in specially adapted accommodation. In most cases, however, the fact that the assets are tainted will be a decisive factor; and in the instant case the fact that the wife had been aware, throughout her married life, that the lifestyle and assets she enjoyed were derived from her husband's criminal activities (drug trafficking) was utterly fatal to her case.

Author: MH

September 2006

E21.15 Reconsideration

Gokal v Serious Fraud Office [2001] EWCA Civ 368 was followed in Re McKinsley [2006] EWHC Civ 1092. This case was decided under the Drug Trafficking Act 1994, s. 17, but will apply also to the Proceeds of Crime Act 2002, s. 23. The court held that, on an application for a certificate of inadequacy, the court is concerned only with the current state of the defendant's assets. It is not concerned with whether an error had been made as to the amount of the confiscation order. A defendant who considers that such an error was made has a statutory right of appeal. If the defendant is out of time, the Court of Appeal (Criminal Division) will consider the application to extend time and the leave application on their merits. If there has been an appeal the defendant may apply to the Criminal Cases Review Commission to refer the matter to the Court. The Administrative Court has no jurisdiction in certificate of inadequacy proceedings to go behind the basis of the confiscation order even if there was a manifest error, or there is fresh material to be considered, and an attempt to do so was an abuse of the process of the court. The same preclusive rule will apply under the 2002 Act in respect of applications to the Crown Court.

Author: LL

September 2005

E22.2 Continues presence in the UK to detriment of community

In Benabbas [2005] EWCA Crim 2113, the offender had pleaded guilty to a single count of using a false instrument, namely a stolen and forged French passport, contrary to the Forgery and Counterfeiting Act 1981. On 4 April 2005 he was sentenced to seven months' imprisonment: the judge also recommended him for deportation. He appealed only against the recommendation for deportation. The passport had been stolen as part of a bulk theft of unissued French passports in an armed robbery in Marseille on 22 July 2003. One of these passports was fraudulently completed in the name of the appellant. On 3 December 2004 the appellant, having come to this country, attempted to use that passport, among other documents, to support his application for a permanent National Insurance number.

The case includes a lengthy discussion of the relevant authorities and consideration of the proposition that the sentencing judge should have confined himself to matters personal to the offender rather than being influenced by the threat to the immigration system which the offence represented. The Court of Appeal had no doubt that the judge was right to say that the appellant's use of a forged passport undermined the good order of society and constituted the appellant a threat and that his continued presence would be a detriment to this country.

Click here for the full text of Benabbas.

Author: MH

April 2006

E22.2 Sentencing Principles

Carmona [2006] EWCA Crim 508 is the first reported case in which the Court of Appeal has examined the impact of the Human Rights Act 1998 on the law and procedure relating to recommendations for deportation. The court concluded that a sentencing court should not consider the rights under the ECHR of an offender whose offences justify a recommendation for deportation. The impact of deportation on a defendant or his family is a matter to be considered by the Home Secretary in determining whether to make a deportation order, and if necessary by the Asylum and Immigration Tribunal on appeal.

It will be only in rare cases that a non-custodial sentence will be imposed and a recommendation for deportation nonetheless made. In such cases, the judge must consider whether detention pending the Home Secretary's decision is reasonably necessary. If there is no real risk of his absconding, the judge should direct that the offender should not be detained pending the making of a deportation order, but detention that is reasonably necessary with a view to deportation will not infringe the ECHR, Article 5: see Article 5.1(f).

Author: MH

November 2005

E23.5 Disqualification from Driving where Motor Vehicle Used for Committing or Facilitating Commission of an Offence

In Gisbourne [2005] EWCA Crim 2491, the Court of Appeal upheld a disqualification order imposed on an 'animal rights' campaigner who had used a hire car when conducting a series of acts of criminal damage and intimidation against employees of Huntington Life Sciences Ltd over a two-day period. Given that the disqualification order would expire before her release from a five and a half year prison sentence, it might have looked pointless, but the court observed that, 'if a disqualification from driving is part of the appellant's record and appears upon her driving licence, that may well have, or be capable of having, an effect upon her ability to hire cars in the future.'

In contrast, an anti-social behaviour order for two years was made to take effect on the appellant's release from prison.

Click here for the full text of the judgment.

Author: MH

January 2006

E23.7 Sexual Offences Prevention Orders

In D [2005] EWCA Crim 2951, the defendant had committed a number of serious sexual offences against his daughter and a sexual offences prevention order was made under the Sexual Offences Act 2003, s. 104, which prohibited him from, inter alia, 'approaching, seeking to approach or communicating directly or indirectly with' his daughter or his son L (against whom no such offences had been committed). The Court of Appeal found that the sentencing judge had exercised his powers wrongly in respect of L, but nevertheless held that there was evidence justifying the making of such an order.

The court went on to hold that the jurisdiction of the family court should in this case be reflected in the order because it was possible that L might one day wish to re-establish contact with the defendant, and would not himself be entitled to seek a variation or discharge of the order under the Sexual Offences Act 2003, s. 108. The original order was accordingly varied so as to provide: 'The [defendant] shall not, without the order of a judge exercising jurisdiction under the Children Act 1989, communicate or seek to communicate, whether directly or indirectly with L whilst he remains under the age of 16 years'.

Author: MH

November 2005

E23.8 Restraining Orders under the Protection from Harassment Act 1997

The duration of an order made under the Protection from Harassment Act 1997, s 5(4) can be extended if a good reason for so doing is established in the form of a change of relevant circumstances: DPP v Hall [2005] All ER (D) 37 (Oct) (5 October 2005).

Author: MH

21 October 2005

E24.4 Hospital and Restriction Orders

In IA [2005] EWCA Crim 2077 the appellant, who suffered from a mild learning disorder and from Pervasive Development Disorder of Autistic Spectrum Disorder, was sentenced for one count of rape on a boy to life imprisonment and to custodial terms on eight counts of indecent assault on a male and three counts of having an offensive weapon. His non-parole period was set at six years nine months which represented a sentence of 15 years' imprisonment.

The principal issue in this case was whether the appellant should rather have been made the subject of a hospital order coupled with a restriction under the Mental Health Act 1983, ss. 37 and 41.

There was no doubt that the appellant constituted a continuing danger to young boys. The psychiatric evidence was that he had himself been abused as a child and that this continued to have an effect on him. The appellant's condition would require a substantial period of time in hospital. Treatment could take years. It was felt that the length of his non-parole term of imprisonment precluded a transfer under the Mental Health Act 1983, s. 47.

The Court concluded that orders under ss. 37 and 41 should have been made. While a court plainly can impose a term of imprisonment on a mentally disordered offender, it must balance the gravity of the offending and the degree to which the actor can be excused from responsibility. Here, the sentencing judge was motivated not by considerations of responsibility or punishment but by considerations of public safety. But a Mental Health Review Tribunal may, when acting with regard to the Mental Health Act 1983, s. 73, afford very great protection to the public whilst the appellant's need for treatment could not effectively be met in a prison environment and there was and remained uncertainty about whether he would be transferred from prison to hospital under s. 47.

The Court therefore substituted orders under ss. 37 and 41. It further expressed the view that s. 45A (hybrid orders) should be extended to apply to conditions other than psychopathic disorders.

Author: LL

27 January 2006

E24.5 Hospital and Restriction Orders

Staines [2006] EWCA Crim 15 concerns the approach to be taken to the Mental Health Act 1983, s. 45A in cases in which a person suffers from psychopathic disorder as well as a mental disorder. The appellant killed another in bizarre circumstances. Her plea of diminished responsibility was accepted and the evidence placed before the sentencing judge was such as to show that she suffered from psychopathic disorder and might, if placed under a hospital order (under s. 37) with restrictions (s. 41), refuse treatment. That would raise the possibility that she might procure her release into the community as not being treatable. She was, apart from this, considered to be treatable. The learned judge, having regard to the risk posed by her possible release into the community via this route, sentenced her to life imprisonment with a hybrid order under s. 45A. She was then placed in hospital where she made progress.

Some years after the event psychiatric reports suggested that the appellant was suffering from mental illness as well as from a psychopathic disorder. The issue in this case concerned the proper approach to be taken by an appellate court where it is alleged that evidence arising since sentence has brought about a situation which, had it been appreciated at the time, might have resulted in orders under the Mental Health Act 1983, ss. 37 and 41.

The Court of Appeal held as follows.

  • That it cannot be said that the combination of a psychopathic condition together with mental illness would have reduced the appellant's responsibility to the extent that a prison sentence would not have been appropriate; her responsibility was diminished, not excluded.
  • An order under s. 45A is not inappropriate in the case of an offender who has both a psychopathic disorder and a mental illness. Section 45A is intended to cater for the situation where neither a prison sentence nor a hospital order appears appropriate (Drew [2002] 2 Cr App R 371 followed).
  • In order for the court to interfere on appeal it would have to be shown that the sentencing judge erred in principle: Castro (1985) 7 Cr App R (S) 68. Here, it could not be shown that mental illness was present at the time of sentencing, given that none of the psychiatrists then felt able to say so.
  • An order under s. 45A order does not deprive a person of appropriate treatment, nor it is it necessary that such a person be returned to prison to await release if that person has been successfully treated. A Mental Health Review Tribunal can recommend release on life licence to the Parole Board. The inmate can remain in hospital until the Parole Board has made a decision.
  • In making its decision, the Parole Board can take into account both medical grounds and the safety of the public.
  • The Parole Board can impose conditions for supervision of a person on life licence equivalent to the Mental Health Act supervision arrangements which could have been made by an MHRT.

Click here for the full judgment.

Author: LL

August 2006

E25.2 Listed Offences

In Forbes v Secretary of State for the Home Department [2006] EWCA Civ 962, the civil division of the Court of Appeal rejected the appellant's contention that the Sexual Offences Act 2003, s. 81 and sch. 3 were incompatible with the ECHR, Article 8, insofar as they required an offender to submit to notification requirements even in cases involving offences under the Customs and Excise Management Act 1979, s. 170, in which no proof was required to show that the offender either knew or believed he was importing indecent material involving children.

Giving the judgment of the court, Sir Igor Judge P cited with approval the decision of the High Court of Justice in Northern Ireland in In the matter of an application by Kevin Gallagher for Judicial Review [2003] NIQB 26, where Kerr J rejected a submission that the automatic imposition of the notification requirements of the Sexual Offences Act 1997 infringed the applicant's rights under Article 8. Kerr J said in that case:

It is inevitable that a scheme which applies to sex offenders generally will bear more heavily on some individuals than others. But to be viable the scheme must contain general provisions that will be universally applied to all who come within its purview. The proportionality of the reporting requirements must be examined principally in relation to its general effect. The particular impact that it has on individuals must be of secondary importance... The automatic nature of the notification requirements is in my judgment a necessary and reasonable element of the scheme. Its purpose is to ensure that the police are aware of the whereabouts of all serious sex offenders. This knowledge is of obvious assistance in the detection of offenders and the prevention of crime.

Author: MH

December 2005

E25.3 Notification Period

As to the length of the notification period in cases where a young offender is sentenced to a detention and training order, see the Sexual Offences Act 2003, s. 131 and Slocombe [2005] EWCA Crim 2297, in which it was held that a 12-month detention and training order was the equivalent of a sentence of only six months' imprisonment, because the young offender in question would only be liable to 'serve' such a period before release under supervision.

Author: MH

February 2006

E25.3 Notification Period

Longworth [2006] UKHL 1 illustrates a significant difference between the circumstances in which notification requirements may or must be imposed under the Sexual Offences Act 2003 and those in which such requirements could previously be imposed under the Sex Offenders Act 1997.

The appellant had pleaded guilty to offences under the Protection of Children Act 1987, s. 1(1)(a) and the Criminal Justice Act 1988, s. 160(1), and had been conditionally discharged for 12 months on each count. The question then arose as to whether he should be subjected to notification requirements under the 1997 Act, and the judge eventually ruled that he should indeed be subject to such a requirement for a period of five years.

The House of Lords disagreed. A conditional discharge was not in their view a 'conviction' to which the notification requirements in part I of the 1997 Act attached, because by the Powers of Criminal Courts (Sentencing) Act 2000, s. 14(1), 'a conviction of an offence for which an order is made . . . discharging the offender absolutely or conditionally shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made . . . '

Under the Sexual Offences Act 2003, however, a person conditionally discharged in respect of a listed offence is expressly subject to notification requirements for a period of that conditional discharge. No such obligation arises under either Act where the defendant receives an absolute discharge.

The House of Lords also confirmed that the obligation to register as a sex offender arises upon (and must be measured from) the date of conviction rather than sentence. But Lord Mance, in giving the opinion of the Appellate Committee, recognised (at [29]) that this might sometimes give rise to a problem:

"In many cases involving an absolute or conditional discharge, such sentence will be passed on the same date as conviction (or it will be made clear that such will be the sentence, as it was by the judge in this case). However, that will not always be so. Accordingly, if the trigger to any notification requirement is conviction rather than sentence, there will be cases where it is uncertain at conviction not merely how long the period of notification will be (a matter of irrelevance to the initial notification), but also whether or not the conviction gives rise to requirement to notify for any period at all. No such requirement can exist, or at all events survive, under the 1997 Act in the event of an absolute or conditional discharge, or under the 2003 Act in the event of an absolute discharge. If the sentence passed is such a discharge, there could be no problem. Indeed, as I have pointed out, s 14(1) would preclude the Crown from proceeding under s 3 of the 1997 Act or s 91 of the 2003 Act, even it would ever occur to anyone to think of doing so. The potential problem arises if there is a real likelihood of such a discharge, but in the event the judge imposes a heavier sentence. By this time, the period (of 14 or now 3 days) within which notification must be effected is likely to have expired. The practical answer to this anomaly under the current legislation is likely to be that an offender will never be prosecuted under s. 92(1)(a) for failure to notify at a date when he has not yet been sentenced, if prior to sentence he had good reason to believe that he would be absolutely discharged. Though we did not hear argument on this point (and I mention it for completeness, without expressing any view), he might even be able to argue, if he was prosecuted, that he had a legal defence to any prosecution under that subsection, in that he had "reasonable excuse" for not complying with a requirement to notify which had only become clear at a later date."

Author: MH

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