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Wednesday, 11 November 2015

BBC radio programme 5 live Investigates the ipp sentance looking for a sympathetic case which will help us explain the unfairness

 Email 11/11 2015, 19.00

Dear Katherine,

Good to speak to you, thank you very much for your help. I work on the BBC radio programme 5 live Investigates. We are developing a programme for Sunday 22nd November (around 11am) on the issue of indeterminate sentences for public protection.

Our piece will focus on the fact that 77% of the remaining IPP prisoners are now over their tariff, and quite a few were convicted of “summary offences”, “miscellaneous crimes” of thefts – with no violence involved. I am looking for a sympathetic case which will help us explain the unfairness of the system, and I am keen to speak to families of prisoners who are still serving IPP sentences for relatively minor offences.

I would be very grateful if you could ask the parents you know please- I’d just want to have a background talk in the first instance. If anyone has a few minutes, please ask them to call me on 0161 335 6455.

Kind regards,
Ruth Evans
BBC Radio Current Affairs
1st Floor, Quay House,  MediaCityUK, Salford, M50 2QH
(+44) (0)161 335 6455

This e-mail (and any attachments) is confidential and may contain

Katherine Gleeson
 Court of Appeal quashes IPP sentence for low-level robbery offences         

In the case of R v Baird (and another) [2006] EWCA Crim 993, on 7th April 2006 the Court of Appeal Criminal Division quashed the sentence of imprisonment for public protection and imposed a determinate sentence. This decision re-affirms and emphasises the points made in Lang in relation to "dangerous offenders".
R v. David BAIRD (and another) [2006] EWCA Crim 993
On the 24th October 2005, at the Manchester Crown Court, the defendant was sentenced to imprisonment for public protection, pursuant to section 225 of the Criminal Justice Act 2003, by HHJ Hammond for two offences of robbery and seven offences of theft. The minimum period to be served was specified as three years for the robberies and 18 months for the thefts, to be served concurrently.
The facts of the offences were that over a three week period the defendant, usually accompanied by another, had on nine occasions entered small shops in the Manchester area. Under the guise of purchasing items or waiting to be served he had then either snatched the cash register or snatched money from the register. In two of the offences some force had been used hence the charges of robbery. No weapon had been used or threatened and the defendant was unmasked during all offences. The pleas were all well in advance of the trial date.
As the offences all post-dated the commencement of the "dangerous offender" provisions in the Criminal Justice Act 2003 it was necessary for an assessment of dangerousness to be carried out by the sentencing judge. HHJ Hammond indicated to counsel that he was assuming the defendant was dangerous pursuant to section 229(3) of the CJA, as his antecedents showed a previous specified offence. The defendant had only one previous specified offence - a conviction for ABH from June 2004. The learned judge asked for submissions why it was unreasonable to apply the assumption of dangerousness. The sentencing exercise predated the Court of Appeal decision of R v. Lang and Others (2005) EWCA Crim 2864 . Nevertheless, submissions where made that the current offences revealed no evidence of serious physical harm. The most violence that was used was during the two robberies where the staff were pushed or bumped into and one cashier's lip was caught by the defendant's arm. There was also no evidence of any psychological harm to any of the victims.
The learned judge found that there was no reason not to apply the assumption. He stated that it was obvious that the nature of the offences meant that psychological harm was likely to have been caused to the shop staff and for this reason there was no reason not to apply the assumption that there was a significant risk that the defendant would cause serious harm to the public in the future.
On the 7th April 2006 the Court of Appeal Criminal Division quashed the sentence of imprisonment for public protection and imposed a determinate sentence. Rather than simply doubling up the minimum term, it agreed with submissions that the minimum term was too long and imposed a determinate term of five years imprisonment.
In coming to this conclusion the Court of Appeal firstly reminded itself of paragraph 17(iii) of Lang that, "If the foreseen specified offence is serious, there will clearly be some cases, though not by any means all, in which there may be a significant risk of serious harm. For example, robbery is a serious offence. But it can be committed in a wide variety of ways many of which do not give rise to a significant risk of serious harm. Sentencers must therefore guard against assuming there is a significant risk of serious harm merely because the foreseen specified offence is serious".

The Court then went on to state as follows:
"In the case of the appellant Baird it is argued that these offences involved no weapons, that they principally relied on the element of surprise, and that minimal force only was resorted to when surprise was not effective on its own. There were no threats and there was no evidence of serious harm in the sense defined by section 224(3) of the 2003 Act. Nearly all his previous offending was acquisitive crime. The pre-sentence report did not suggest that the future foreseen harm was serious. This means, it is argued, that the judge fell into error, the error being to assume that the kind of distress suffered by the victims in this case was sufficient to qualify as serious harm if it occurred again in the future, and it fell foul of the assumption warned against in the passage we have quoted in Lang and Others.
It is also the case that the matters that the sentencer should take into account, as set out in paragraph 17(ii) of that decision, are not addressed by the judge because he did not have the evidence to do so. In paragraph 47 in Lang and Others that principle is set out in one of the appeals. The court said:
"Although the author of the pre-sentence report was right to say that there is always a risk of psychological harm in robbery, it is not necessarily either a significant risk or a risk of serious harm; as we have earlier indicated the degree of both risk and harm must be evidenced. Furthermore, rapid repetition of offences in itself does not, as the Recorder suggested, demonstrate a significant risk of serious harm....
We agree with the submission made that the guidance given by Lang, had it been available to the judge, would have resulted in this sentence not being passed. These are indeterminate sentences, tantamount in all but one respect to life sentences, and should only be passed on low-level offending such as this if all the requirements set out in Lang are met. They were not in this case."
This decision therefore re-affirms and emphasises the points made in Lang. In particular the explicit statement that IPP sentences are for all intents and purposes life-sentences and should not therefore be passed on low-level offending, even where the offences carry the name of "robbery", unless a number of requirements are met, is a timely and important reminder to sentencing judges.
Farrhat Arshad appeared for Baird instructed by Robert Lizar Solicitors

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