IPP JUGMENT
Case Nos:
2006/04441/A4,
2014/04477/A2, 2014/04681/A7,
2014/04729/A6,
2014/05293/A8, 2014/05593/A7,
2015/00017/A8,
2015/00369/A6, 2015/00380/A2,
2015/01547/A8,
2015/01741/A4, 2015/01840/A7,
2015/02010/A7
IN THE COURT OF APPEAL (CRIMINAL
DIVISION)
ON APPEAL FROM THE CROWN COURT
Royal
Courts of Justice Strand, London, WC2A 2LLDate: 18/03/2016
Before :THE LORD CHIEF JUSTICE OF
ENGLAND AND WALES
MR JUSTICE OPENSHAW
And
MR JUSTICE WILLIAM DAVIS
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Between:
Regina Respondent- and applicants
(1) Mark Roberts
(2) Natasha Precado
(3) David Craig Quaglia
(4) Paul Anthony Woodward
(5) Simeon Peter Gittens
(6) Joseph Steven Powney
(7) Nigel Darren Garbutt
(8) Jason William Warwick
(9) Martin Lee Fay
(10) Kelly Georgina Diveney
(11) Darren Paul Byrne
(12) Sonnie Michael Wakeling
(13) Sean Dowe
Applicants
J Bennathan QC and E Coverley for the Applicant (Roberts)
J Bennathan QC and B Keith for the Applicant (Precado)
J Bennathan QC and N Beechey for the Applicants (Quaglia and Byrne)
P Rule for the Applicant (Woodward)
J Bennathan QC and R Banks for the Applicant (Gittens)
J
Bennathan QC and C Ashcroft for the Applicant (Powney)
Lord Thomas of Cwmgiedd, CJ:
INTRODUCTION
1.
There are before the Court 13 applications for an extension of time in which to
apply for leave to appeal against sentences of imprisonment or detention for
public
protection
imposed between 2005 and 2008 under the Criminal Justice Act 2003 (CJA
2003).
The sentence of Imprisonment for
Public Protection: 2005-2012
(a) The original sentence of IPP
2005-2008
2.
Sentences of imprisonment for public protection and for offenders under 18,
detention
for
public protection, (IPP) were brought into effect on 4 April 2005 under the
dangerous
offender provisions contained in Chapter 5 of Part 12 of the CJA 2003.
These
provisions followed a review of sentencing carried out for the then Home
Secretary
by John Halliday, set out in a report published in July 2001 entitled Making
Punishments Work - a Review of
the Sentencing Framework for England and Wales.
3.
S.225 and s.226 of the CJA 2003 set out the detailed provisions for those
convicted of
serious
specified offences, if the offender was dangerous. An offender was dangerous
if
the court assessed that there was:
“a significant risk to
members of the public of serious harm
occasioned by him of further
specified offences”
4.
The court was not given the usual freedom in making that assessment. The CJA
2003required the court to make the assumption of dangerousness for those over
18 if the offender had been convicted on an earlier occasion of a specified
offence, unless it was unreasonable to do so. Specified offences were violent
and sexual offences listed in Schedule 15 and included wounding or causing grievous
bodily harm under s.20and assault occasioning actual bodily harm under s.
47
of the Offences Against the
Person
Act 1861 which carried a maximum sentence of 5 years imprisonment.
5.
Where the offender was found to be dangerous and over 18, the court was
required to pass a sentence of IPP or life imprisonment. It is important to
emphasise that the CJA2003 removed all discretion from the court once it was
found that the offender was dangerous. The sentence had to be IPP or life imprisonment.
Judgment Approved by the court for
handing down. R v Roberts and others
6.
The court was required to set a minimum term to be served. This was calculated
as half of the notional determinate term that would have been passed if an IPP
had not been imposed; this was intended to reflect the culpability and harm
caused by the offence and the punishment required. Otherwise the length of the
sentence was
indeterminate
as, before an offender was released, he had to pass a threshold of
showing
that, under s.28(6) of the Crime (Sentences) Act 1997 it was “no longer
necessary
for the protection of the public that he should be confined”, a test most
recently
examined in R (King) v Parole Board [2016] EWCA Civ 51.
7.
12 of the applications before the court relate to those who were sentenced to
IPP inthe period before July 2008. In each case the minimum term has long
expired; for
example
the minimum term for one of the appellants, Roberts, was under a year; he
was
sentenced when 18 in May 2006 (see paragraph 48 below); that of Precado
sentenced
in January 2007 when aged 23 was 6 months (see paragraphs 59 and 69
below).
(b) The amended sentence of IPP
2008-2012
8.
In 2008 Parliament by the Criminal Justice and Immigration Act 2008 modified
the
sentence
of IPP. The amended provisions removed the statutory assumption of
dangerousness,
removed the mandatory imposition of IPP where the offender was
found
to be dangerous and removed some offenders from the scope of the sentence by reducing
the list of specified offences and by stipulating that the minimum term had to be
at least 2 years save where the offender has committed an offence listed in yet
another schedule. The amendments did not affect the position of those who had
been sentenced between April 2005 and July 2008. One of the applications before
the court, Woodward, relates to an offender sentenced after July 2008.
(c) The abolition of the sentence of
IPP
9.
In 2012 Parliament abolished the sentence of IPP by the Legal Aid Sentencing
and
Punishment
of Offenders Act 2012 (LASPO 2012) for all offenders convicted after 3
December
2012. The abolition did not affect those who had been sentenced to IPP in the
period between 2005 and 2012, but s.128 enabled the Secretary of State to
modify the threshold for release. No modification has so far been made, a point
to which wereturn at paragraph 45.
10.
As at 4 March 2016, there are over 4,000 still in custody under a sentence of
IPP
(about
5% of the total prison population) and a significant further number who are
subject
to the licence terms of their IPP and therefore still subject to recall to
continueto serve their sentence of IPP.
(d) The reason for these
applications
11.
In each of these applications the applicant seeks to appeal many years out of
time against the sentence of IPP. No appeals were brought when they should have
been within the 28 day period after sentence specified by s.18(2) of the
Criminal Appeal Act 1968 for making applications for leave to appeal. It seems
clear that it wasperceived at the time there would be no prospect of success in
any such application.
judgment Approved by the court for
handing down. R v Roberts and others
12.
All the applicants have been either detained in custody long after the expiry
of theminimum term or have been recalled for breach of licence as, for example,
Gittens (see paragraph 98), Diveney (see paragraph 147) and Wakeling (see paragraph
165). Some were very young when such sentences were imposed - for example
Roberts (see paragraph 48), Powney (see paragraphs 109, 111 and 112) and Fay
(see paragraph137).
13.
The applicants now seek an extension of time under s.18 (3) of the Criminal
Appeal Act 1968 to challenge the correctness of the sentences imposed on them.
In contrast to the period of 28 days normally allowed, the applicants seek extensions
of between 5 and 9 years either to apply for leave or, in one case, to renew
the application after refusal by the Single Judge many years after the expiry
of the 14 day period allowed for making an application to renew. They argue that
because of the position in which they find themselves, the court should look
again at the sentence, even if at the time no-one would have thought they were
wrong in principle or manifestly excessive.
14.
These cases were heard together so that the court could consider whether time
should be extended.
THE GENERAL PRINCIPLES
(a) The central submission of
the applicants
15.
The central submission of each of the applicants was that the imposition of the
IPP was not justified by the statutory criteria as explained by the case law of
this court, particularly R
v Lang [2005] EWCA Crim 2864, [2006] 2 Cr App
R(S) 3 to which werefer at paragraph 22.i) below and when considering the
individual applications.
16.
It was submitted that:
i)
Whatever may have been the position at the time the sentences of IPP were
passed,
the court had power under s.11 of the Criminal Appeal Act 1968 to
pass
sentences that, in the light of what had happened over the intervening
years,
now would be the proper sentence.
ii)
This court should reconsider the assessments made by sentencing judges in the
light
of Lang. The court should examine with
particular care cases where
proper
reasons were not given and cases where young offenders were
sentenced.
iii)
A time could and had been reached when the length of the imprisonment was
so
excessive and disproportionate compared to the index criminal offence that
it
could amount to inhuman treatment under Article 3 or arbitrary detention
under
Article 5 of the European Convention on Human Rights. That was
because
the detention no longer had any meaningful link to the index offence.
A
much delayed review of a sentencing decision could therefore be a
mechanism
the court could employ to avoid a breach of these Convention
Rights.
As the period now served by each of the applicants was so much
longer
than any conceivable determinate sentence would have required, the
continued
detention amounted to preventative detention and was therefore
arbitrary.
Judgment Approved by the court for
handing down. R v Roberts and others
We
will consider these in turn.
(b) The role of the Court of
Appeal as a court of review
17.
It was submitted on behalf of the applicants as their first general submission
that s.11of the Criminal Appeal Act 1968 permitted the court to allow an appeal
if the court considered that the appellant should be sentenced differently.
This was in contrast to the power under the original Act, the Criminal Appeal
Act 1907, where the court’s power arose where the court considered a different
sentence “should have been” passed. This court was therefore entitled to review
the reality of the sentence, as it had turned out to be, even long after the
judge had passed sentence. In the cases of these sentences of IPP, they had
been manifestly excessive in the result. Sentencing judges could not have
foreseen the effect that the sentences would have had. The court was therefore
entitled years later to sentence again on a different basis.
18.
S.11 provides:
“On
an appeal against sentence the Court of Appeal, if they consider that the
appellant should be sentenced differently for an offence for which he was dealt
with by the court below may—(a) quash any sentence or order which is the
subject of the
appeal;
and (b) in place of it pass such sentence or make such order as
they
think appropriate for the case and as the court below had power to pass or make
when dealing with him for the offence; but the Court shall so exercise their
powers under this subsection that, taking the case as a whole, the appellant is
not
more
severely dealt with on appeal than he was dealt with by the court below.”
19.
It is well established that this court is a court of review. In R v A&B [1999] 1 Cr
App
R (S) 52, Lord Bingham CJ made this clear at page 56:
“the
Court of Appeal Criminal Division is a court of review; its function is to
review sentences imposed by courts at first
instance,
not to conduct a sentencing exercise of its own from
the
beginning.”
20.
There is no basis for departing from the principle so clearly expressed by Lord
Bingham.
This court considers the material before the sentencing court and any
further
material admitted before the court under well established principles. It
considers
whether on the basis of that information the sentence was wrong in
principle
or manifestly excessive. It does not, years after the sentence, in the light of
what
has happened over that period, consider whether an offender should be
sentenced
in an entirely new way because of what has happened in the penal system or
because, as in ZTR [2015] EWCA Crim 1427, the offender has
supplied
information
long after conviction. This court was not established to perform the
Judgment Approved by the court for
handing down. R v Roberts and others
function
suggested; it is not constituted to carry out the suggested function; and it
could
not do so as presently constituted.
21.
There is under our constitution the available means to rectify any injustice in
the way in which the operation of these sentences has in fact eventuated. The
review of
sentences
in the light of events occurring long after the original sentence is a matter
for
the Parole Board or, if a change is required for the regime for release, as we
discuss
at paragraphs 43 and following below, for the Executive and Parliament under the
powers granted under s.128 of LASPO 2012. Such a change would not amount to any
impermissible interference with the sentence passed by the courts. It would be
to correct a position that may have been unforeseen when the IPP sentencing
regime was enacted. (c) The case law
22.
The second general submission was that this court should carefully review the
sentences
in each case in the light of the case law developed during the period during which
the sentence of IPP was part of the statutory sentencing framework laid down by
Parliament. It is necessary briefly to refer to 3 significant cases:
i)
On 3 November 2005, in a judgment of this court given by the then Vice-
President,
Rose LJ, R v Lang, this court gave guidance in relation
to certain of
the
provisions of the Act at paragraphs 15-17.
ii)
On 20 October 2006, in a judgment of this court given by the President of the
Queen’s
Bench Division, Sir Igor Judge (as he then was) in R v Johnson
[2006]
EWCA Crim 2486, [2007] 1 Cr App R (S) 112, this court made clear
that
the court should not, on well-established principles, interfere with the
decision
of a judge to impose an IPP if the sentence was one open to him.
iii)
On 26 November 2008 in a judgment of this Court given by Lord Judge CJ in
R v C [2009] 1 WLR 2158, [2009] 2 Cr App R
(S) 22, this court stressed the
need
to consider the alternatives to IPP as it was a “draconian sentence”
23.
We have carefully considered in each of the applications, whether the sentence
of IPP
imposed
by the judge was imposed in accordance with the statutory criteria and the
guidance
given by this court, particularly in Lang,
particularly in the applications
before
us where the guidance was given after the sentencing decision made by the
judge. In each case, for the reasons we set
out in respect of each application, we are
satisfied
that each of the sentences was passed in accordance with the statutory
criteria
as interpreted in the case law of this court.
24.
It must be recalled that in many of the 12 applications which relate to the sentence
of IPP before the changes made in July 2008, the judge had, by the express
terms of the CJA 2003, no discretion as to whether to pass such a sentence if
the offender was found to be dangerous. It is also important to stress that the
CJA 2003 required the judge to assume that the offender was dangerous if he had
committed a previous specified offence, unless the assumption was unreasonable.
The case of Quaglia is an illustration of the way in which the assumption operated
(see paragraph 79 below). As we explain, each judge faithfully and properly
gave effect to the terms of the CJA
Judgment Approved by the court for
handing down. R v Roberts and others
2003;
they had no discretion under the CJA 2003 until it was amended in 2008, if they
could not find the assumption was unreasonable.
25.
As an alternative to the submission which we have just considered, it was
submitted
that
this Court should not follow Johnson
in upholding a sentence which was
within
that
area of judgment open to a judge to pass, but should instead, in the light of
the
observations
such as those of Lord Carnwath at paragraph 60 in Pham v Secretary of State [2015] 1 WLR 1591, give anxious
scrutiny to each decision as human rights
were
engaged as sentences of custody deprived persons of their liberty. We cannot
accept
this approach. The Criminal Appeal Act 1968 sets out the approach this court
should
take. That approach has been carefully developed under the common law and the
Human Rights Acts in a manner entirely consistent with its function as a court
of review of sentences passed by the sentencing court.
26.
We have also carefully considered any case where a judge did not give full
reasons as
to
why the offender was dangerous. As is set out in the paragraphs of this
judgment
addressing
the specific application where this happened, we are satisfied that the
sentence
was entirely justified – see Gittens at paragraphs 105-108 below. We have
applied
the same approach to the application where what the judge said on sentence
cannot
now be found – see Diveney at paragraphs 146 and 152.
27.
If we had concluded that the sentences of IPP had been wrongly imposed and a
determinate
sentence should have been imposed, a question would have arisen as to,the
determinate sentence that should be substituted given the fact that, in some of
the applications, the offender would have been in custody for more than twice
the
minimum
term imposed and there would be obvious difficulties in releasing an
offender
without any licence conditions that would have provided for supervision in
the
community As the issue does not arise, we would simply record that we would
have
considered imposing extended sentences (as was done in the decision in GJD to which we refer at paragraph 42
below).
28.
We would have also considered the submission made for the first time on behalf
of the applicants in the course of the hearing that, as under s.29(4) of the
Criminal
Appeal
Act the court had power to impose a determinate sentence that commenced
from
the date of this court’s decision, that power could be used to ensure that a
licence
period could be imposed. There would be no infringement of the principles
that
the sentence imposed could be more onerous, as any such licence would be less onerous
than the licence to which the offender was subject under the sentence of IPP. The
respondent accepted that there was such a power, but as the only case in which the
court had exercised it was in R
v Turner (Bryan James) (1975)
61 Cr App R 67 at 92, the court would be “breaking new ground” and would have
to consider some difficult issues to which that would give rise. Whether it
would be right to exercise the power in the way suggested and in the light of
the difficulties to which our attention was drawn must await a decision of this
court where the issues arise for
decision;
we express no view.
(e) The European Convention on Human
Rights
29.
We turn to the third general submission advanced to us as set out at paragraph
16.iii)that reviewing a sentence decision many years after the sentence could
be a
Judgment Approved by the court for
handing down. R v Roberts and others
mechanism
through which the court could prevent detention being in breach of
Articles
3 or 5 of the Convention.
30.
There is nothing to suggest that a sentence of IPP in itself is a violation of
Articles 3 or 5. All that has been suggested is that the way in which a person
subject to IPP has been dealt with long after sentence may render the detention
arbitrary. This would not make the original decision of the court wrong. In James v UK (2013) 56 EHHR 12 the Fourth Section of
the Strasbourg Court concluded that the failure to provide those serving IPPs
access to courses to enable them to satisfy the conditions for release could
render their continued detention arbitrary. In R (Kaiyam) and R (Haney)
v Secretary of State for Justice
[2015] AC 1344, the Supreme Court
analysed that
decision.
It held that although the Secretary of State had a duty to provide facilities
for
rehabilitation, if he failed to do so, the remedy was damages rather than a
declaration
that the detention was unlawful. As Lord Mance and Lord Hughes said at
paragraph
39 in giving the judgment of the court:
“his detention remains the direct causal consequence of his
indefinite sentence until his risk is judged by the independent
Parole Board to be such as to permit his release on licence.”
31.
It is only if the system of review breaks down or ceases to be effective could
it
possibly
be the case that the detention becomes arbitrary: see R (Walker) v Secretary of State
for Justice (Parole Board intervening) [2010] AC 553 as explained at paragraph 11 of Kaiyam and Haney. If such a state of affairs was reached,
this wouldnot be the consequence of the original sentence providing for
arbitrary detention, but
of subsequent events. It would not,
therefore, be a matter for this court. It would be as a result of a failure by the
Secretary of State properly to carry out the sentence of the court or a failure by the Parole
Board. Thus it would be a matter for judicial review
of the actions of the Secretary of State or the Parole Board by the procedures provided before the Administrative
Court with the evidence necessary for such anapplication.
32.
A final submission was made based on Mr Rule’s submissions in R v Docherty [2014]EWCA Crim 1197, [2014] 2 Cr App R
(S) 76. In that case the appellant was
convicted
of an offence of wounding with intent on 13 November 2012. As the
provisions
abrogating the sentence of IPP to which we have referred in paragraph 9
did
not come into force until 3 December 2012, although enacted by Parliament on 1
May
2012, the judge applied, as he was bound to do, the law as set out in s.
225
andfollowing of the CJA 2003. He found that he was dangerous and sentenced him
toIPP. Apart from the conventional submission that the sentence of IPP should
not have been imposed, it was submitted that the imposition of such a sentence
after Parliament had decided to abolish it was a breach of the ECHR (Articles
7, 5 or 14) and of the principle of what is known as the lex mitior.
33.
As we understand the argument, it was submitted that there was unlawful
discrimination
against the appellant as he was being subjected to a sentence of IPP
when
Parliament enacted LASPO 2012 in May 2012 with effect from a date to be
appointed,
but he was nonetheless subject to that sentence by reason of the date of his conviction
being between that date and the date the abolition was brought into forceon 3
December 2012. It was also submitted that Article 7, as interpreted by the
Strasbourg
Court in Scoppola
v Italy (no 2) (2010)
51 EHHR 12, required a court, in
Judgment Approved by the court for
handing down.R v Roberts and others
the
event that the legislature had reduced the penalty between the time the crime
was committed and the conviction, to impose the reduced penalty. This court did
not
accept
these arguments, but a point of law was certified and permission to appeal was granted
in February 2015. The appeal is to be considered by the Supreme Court in May
2016.
34.
If the Supreme Court accepts the arguments advanced on behalf of Docherty, it
can make no difference whatsoever to the present applications, as all were
convicted and sentenced many years before Parliament enacted LASPO 2012 in May
2012
abolishing
the sentence of IPP with effect from a date to be appointed. We cannot seehow
it can be suggested that a sentence lawfully and properly passed many years before
Parliament enacted the change in the law can be invalidated by that subsequent change
in the law by Parliament.
35.
We would add one further point simply to record an argument addressed to us by
the respondent to the effect that the position was much more complex than
suggested. That further submission was based on the decision in R v Gintas Burinskas [2014] EWCA Crim 334, [2014] 1 WLR
4209, [2014] 2 Cr App R (S) 45 where this court considered the circumstances in
which a sentencing court could exercise the power under s.224A and s.225 of the
CJA 2003 as amended by LASPO 2012 to pass sentences of life imprisonment for
those convicted after 3 December 2012. At paragraphs 12-23, the court
considered the submission that it would be inappropriate to pass a sentence of
life imprisonment under the provisions as amended by LASPO 2012 when an
offender might have been sentenced to IPP in respect of an offence committed
after 3 December 2012 had IPP continued as an available sentence. The court
concluded that it was inevitable that there might be circumstances where a person
who would have been sentenced to IPP might be sentenced to lifeimprisonment
under the new provisions.
(f)
The
principles applicable to an extension of time
36.
Rule 36.4(b) of the Criminal Procedure Rules requires the applicant to give
reasons for requiring an extension of time. Any application for an extension of
time to renew is within the discretion of the court which always requires
reasons to be provided by the application as to why the court should grant an extension
of time. As this court made clear in R
v Wilson [2016] EWCA Crim 65, the reasons for the
extension mustalways give an explanation for the delay in making the
application.
37.
In deciding whether to grant an extension, the court will consider all the
material
circumstances,
including the explanation for the delay and the cogency of the reasons in seeking
an extension when determining whether it is in the interests of justice to grant
an extension: see, for example, Hamilton
v R [2012] UKPC 21, [2013] 1 Cr App R 13,
at paragraph 17 and R v Thorsby [2015] 1 Cr App R (S) 63 at paragraphs
12-18. There is no limit on the court’s discretion.
38.
As is clear from the detailed reasons given by us in respect of each
application before us, we have not based our decision in any of these cases
simply on the fact that the application is made years out of time, but on a
consideration of all the circumstances, including our review of each of the
sentencing decisions. We have taken that course in these applications to enable
the court to review the general position of thosesentenced to an IPP who are
still in custody or subject to licence years after the expiry
Judgment Approved by the court for
handing down. R v Roberts and others
of
a minimum term. We have done this in the particular circumstances of these
applications
which were specially conjoined so that the court could consider the
general
approach this court should take given the nature of the sentences of IPP, the
controversy
that the outcome which has resulted from this sentencing regime has
caused,
as reflected in the concern raised in Parliament and elsewhere and the time the
applicants
have actually spent in custody.
39.
However, this is not any indication of any change in the practice of this court
summarised
in Thorsby at paragraph 15. Time limits are set
for good reason and in
the
interests of justice. They must be strictly observed unless there are good and
exceptional
reasons for their not being so observed. As was made clear by Lord
Taylor
CJ in R v Burley - an unreported decision referred to in
Williams [2010]
EWCA
Crim 3289 at paragraph 5 – the interests of justice as a whole require the
strict observance of time limits. It is particularly important in the case of a
sentence appeal that it is brought within the time frame required so that the
offender knows as soon as possible what his position is with finality and so
that his rehabilitation can be plannedaccordingly by those who manage him in HM
Prisons.
(g) Obligation to consult the former
lawyers.
40.
In all of the applications except that of Precado (see paragraph 60), all of
the
applications
are made by those who did not either represent the offender as a solicitor or
appear as an advocate at the sentencing hearing. In R v McCook [2014] EWCA Crim 734, this court made clear that it was the
duty of any new representative to make inquiry of those who represented the
offender at the trial so that they are apprised of all relevant information.
Although that decision concerned an application for leave to appeal against
conviction, the same duty applies in an application for leave to appeal against
sentence.
Conclusion on the general
principles
(a) The position of this court
41.
We have reviewed these 13 cases in detail. In each we are satisfied that the
judge correctly applied the law and passed a sentence in accordance with the
CJA 2003 as interpreted in the decisions of this court.
42.
There may of course be cases where in certain specific circumstances the judge
made an error of law (such as imposing such an IPP for an offence committed
before the coming into force of the provisions as happened in R(GJD) v Governor of Her
Majesty’s Prison Grendon [2015] EWHC 3501 (Admin), R v GJD [2015] EWCA
Crim
599). However, we wish to make clear that where the judge has followed the
provisions
of the CJA 2003 as interpreted by the decisions of this court and passed a
sentence
of IPP in circumstances where it was properly open to the judge to pass such a
sentence, this court will not now revisit sentences of IPP on the bases argued
in these applications. Unless clear new points are raised, the court will in
all such cases in the future simply refuse an extension of time without more.
The remedy, if any, isone that the Executive and Parliament must address.
(b) The issue for Parliament
Judgment Approved by the court for
handing down. R v Roberts and others
43.
As the principles on which this court exercises its jurisdiction are clear and
as the
judges
were passing sentences faithfully and properly following the clear terms of the
CJA
2003, as they were bound to do, it is not permissible for the reasons we have
given
for this court to set aside sentences that were properly and lawfully passed.
44.
We are mindful of the substantial criticism that many years after the expiry of
minimum
terms, sometimes of a very short period, many sentenced to IPP remain in
custody
or have been recalled to custody for breach of their licence conditions.
It
isclear to us from the applications before us that:
i)
The effect of a long term of imprisonment with no certain date of release is
that
in some cases it may increase the likelihood that an offender will offend
again
on release.
ii)
The effect of the license provisions will mean that offenders are subject to
long
periods
of licence and, if they offend, are recalled – see for example Roberts
(see
paragraph 50) and Diveney (see paragraph 147).
45.
Criticism has also been made of the imbalance between the threshold test that
brought an offender within the scope of an IPP, namely a significant risk to
members of the public of serious harm occasioned by him of further specified
offences and the
threshold
test for release, namely it was no longer necessary for the protection of the
public
that he should be detained. An analysis of the difference is set out in Sturnhamv Secretary of State for
Justice and the Parole Board [2013]
2 AC 254 at paragraph
40-48.
As we have set out at paragraph 9, Parliament has given to the Secretary of
State
power to alter the threshold test for release. As we have observed, there is
someevidence that the effect of long periods of imprisonment or the recall to
prison ofthose sentenced to IPP under their licence requirements may be either
impeding theirrehabilitation or increasing the risk they pose. It is not for
this court to examine thatevidence or to suggest a new test which might be
premised on the basis that the ParoleBoard should take into account, as a
balancing factor, the risks posed by continueddetention or long periods of
licence. That must be a matter for Parliament and theSecretary of State.
46.
It will not be easy to find a ready solution, for simply to release those who
have
completed
their tariff periods would have the consequence that many would be put
into
the community without any supervision and they might well pose a risk of
danger.
It would appear that there is no likely solution other than (1) significant
resources
be provided to enable those detained to meet the current test for release
which
the Parole Board must apply or (2) for Parliament to use the power contained in
s.128 of LASPO 2012 to alter the test for release which the Parole Board must
apply or (3) for those in custody to be re-sentenced on defined principles
specially enactedby Parliament.
47.
This is not a case where the common law took a wrong turning as it did in the
case of joint enterprise as recently set out in the judgment of the Supreme
Court in Jogee[2016] UKSC 8 in which the courts
corrected the common law. It was Parliament
which
legislated to establish a regime of sentences of IPP in terms which the courts
have
faithfully and properly applied. It must, in our democracy and in accordance
with
the rule of law, be for Parliament to provide a correction for the outcome if
it so
wishes.
Such a correction will in the circumstances not in any way interfere with the
Judgment Approved by the court for
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fundamental
constitutional principle that the independent decision of the court must
be
respected, because the sentences were premised on the condition that it would
befor the Parole Board to determine the terms of release.
OUR DECISIONS ON THE 13 APPLICATIONS
(1) Mark Roberts
48.
On 17 May 2006, following his earlier plea of guilty to an offence of attempted
robbery,
as charged in count 1, Mark Roberts, then aged 18, was sentenced by HH
Judge
Milford QC at the Crown Court in Newcastle to IPP under s.225 of the CJA
2003,
with a minimum term specified of 359 days. No separate penalty was passed
following
his plea of guilty to breaching an antisocial behaviour order, as alleged in
count
3. A charge of theft as alleged in count 2 was ordered to lie upon the file.
49.
Roberts was advised by counsel originally representing him that there were no
arguable
grounds of appeal, but Roberts himself applied for leave to appeal against
sentence
on the grounds that the sentence was harsh. That application was refused bythe
single judge in October 2006 and was not pursued. Technically, therefore, this
isan application for an extension of time (of fully eight years), in which to
renew his
application
following refusal by the single judge
50.
This further application followed his appearance before the Crown Court at
Sheffieldin September 2014, when a different sentencing judge expressed
disquiet that Robertswas still in prison pursuant to the sentence of IPP,
having been recalled after hisearlier release. This further application was
then made on 29 September 2014 bythose who represented him at that hearing; the
extension of time required is 8 years.Roberts has since been released again and
is out on licence.
51.
The facts were as follows.
i)
On the evening of 7 February 2006, a young man, Jonathan Davidson, drove to
his
girlfriend’s house in Sunderland in his new Peugeot car. As he stopped
outside
the house, Roberts, who was a stranger to him, approached the car and
lent
through the window so as to engage him in conversation. This was a ruse
to
enable him to reach inside the car and to snatch the car keys from the ignition,
which he did. He then ordered the complainant out of the car, and when he
refused to do so, Roberts opened the car door and dragged him out.The
complainant attempted to take back his car keys and a struggle between them
developed during which Roberts punched the complainant several times
in
the face.
ii)
Roberts was then joined by two others; the complainant was overpowered until
others
joined in on his side and Roberts made off.
iii)
The complainant was left with a swollen left cheek, soreness to his jaw, cuts
to
the
top of his head, abrasions and soreness to his face.
iv)
Roberts was arrested the next day; in interview he denied responsibility but he
was
later picked out at an identification parade, and in due course pleaded
guilty,
as we have already said.
Judgment Approved by the court for
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52.
Roberts was aged only 18 at that time but he had a very bad criminal record
includingtwo convictions for robbery when he was aged 14, for the second of
which hereceived a sentence of four months detention and a training order. He
had made 13 previous court appearances for a total of 48 offences, mainly
offences of dishonesty,but also for racially aggravated common assault and
racially aggravated criminaldamage and for public order offences. He had been
released from his last sentence of six months custody in a Young Offender
Institution on the very day that he committedthe instant offence. He was,
incidentally, also in breach of his antisocial behaviour order.
53.
As was set out in the pre-sentence report, following his release from custody
in
February
2006, the offence was committed after he had drunk a great deal of lager andcider
to prove to his younger associates that he was ‘still one of the gang’. The
probation
officer identified a pattern of offending linked to his continuing association
with
other offenders and to his drinking, which he was presently unable or unwilling
to
address. Consequently he was of the opinion that Roberts was extremely
impulsive,
and then rarely considered the consequences of his actions; he concluded
that
Roberts presented a high risk of reoffending.
54.
The sentencing judge pointed out that because he had a previous conviction for
aspecified offence, namely robbery, the statutory assumption that he was
dangerous
within
the meaning of the CJA 2003 applied to his case. The judge then considered
the
circumstances relevant to the risks that he presented; having done so, he was
satisfied
that it would be unreasonable not to make the assumption that he was
dangerous.
Indeed, he pointed out that his counsel had not attempted to persuade himto do
otherwise.
55.
The judge had particularly in mind: the facts of the instant case; that this
offence wascommitted on the very day that he was released from his earlier
custodial sentence;his poor criminal record (including the previous conviction
for robbery, admittedlycommitted when he was only 14); that he was in breach of
his antisocial behaviourorder and that he appeared to be unwilling to address
the underlying causes of hisoffending.
56.
Accordingly, he came to the conclusion that he was indeed dangerous, within the
meaning
of the CJA 2003 and passed a sentence of IPP. Plainly there were cases
where
the judge would consider the possibility that a young offender might improve,
but
there was no reason at all to think in 2006 that Roberts might do so. We can
see
no
fault or flaw in the judge’s approach or in his reasoning; indeed the decision
seemsto us to have been inevitable on the terms of the CJA 2003 as it then
stood.
57.
There was no complaint about the minimum term, which was fixed on the basis
thatthe appropriate sentence after a timely plea was 32 months, which the judge
thenhalved and gave him credit for the day that he had spent in custody.
58.
In accordance with the principles which we have already set out, this
application for an extension of time is refused.
(2)
Natasha Precado
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59.
On the first indictment, Precado, then aged 23, pleaded guilty to an offence of
arson,intending to damage property or being reckless as to whether property
would bedamaged, contrary to section 1 (1) and (3) of the Criminal Damage Act
1971. On thesecond indictment, she was convicted after a trial of five further
counts of simple
arson,
two counts of common assault and one count of criminal damage.
60.
On 17 January 2007, for the offences of arson she was sentenced by HH Judge
Richardson,
at Snaresbrook Crown Court, to IPP under s.225 of the CJA 2003, with aspecified
minimum term of 6 months. No separate penalty was imposed in relation tothe
assaults or criminal damage. She was advised by counsel at the time not to
appeal,
but her instructing solicitor has kept her case under review and has recently
instructed
new counsel.
61.
Precado seeks an extension of time of over 7½ years for leave to appeal against
sentence.
She currently remains in custody. A report prepared for this court set out a
bleak
history of her period in prison and the significant difficulties in
rehabilitating
her
into the community; there is a risk of her becoming institutionalised. During
her
time
in custody, she has spent one short period in hospital receiving psychological
treatment.
62.
The facts are as follows.
i)
Precado committed the offences on three separate days while in custody at
HMP
Holloway.
ii)
On 8 October 2005 she started a fire in her cell in the segregation unit. Prison
officers
described her as “playing up” and being verbally abusive earlier that
day.
That evening officers saw smoke in the corridor and flames coming from
the
hatch in the cell door. Officers managed to enter the cell, put the fire out
and
dragged her out. She had set fire to paper and clothing. That arson caused
£600
worth of damage.
iii)
On 21 January 2006, once again she was described as being hostile to staff and
as
a result she was moved to cell 31. Shortly afterwards she started a fire with
a
lighter she had concealed. Officers extinguished the flames through the
hatch,
entered the cell and removed her. She was then moved to cell 23. A
short
time later, officers discovered that she had started a fire in cell 23. Again
they
put the fire out. When officers went to remove her she punched one of
them
in the face causing his nose to bleed.
iv)
In the early hours of 23 January 2006 she damaged a television, a chair and a
table
in cell 25. She was verbally abusive and as her behaviour deteriorated
she
was removed from the cell. As she was being taken to another cell she
kicked
out twice, hitting one of the officers in the leg. She was put in cell 31.
A
short time later the officers saw smoke coming from under the door of cell
31.
Again, officers put the fire out and removed her again, this time to cell 27.
She
then started another fire in that cell. Once again, officers had to enter the
cell
to extinguish the fire. She was removed and placed back in cell 25.
Again,
she started another fire by burning paper and tissues. Officers
described
her as being aggressive throughout.
Judgment Approved by the court for
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63.
She was aged 23 at the time of conviction but already had a substantial
criminal
record.
Between 1999 and 2005 she had 36 previous court appearances for 62
offences.
She had numerous convictions for common assault, criminal damage and
disorderly
behaviour but only one conviction for a specified offence, that being an
assault
with intent to resist arrest, contrary to s.38 of the Offences against the
PersonAct 1861. She had been in custody on several occasions albeit for short
periods of
time.
64.
The pre-sentence report described her as being aggressive, chaotic and
unpredictable;further, she reacted badly to uniformed officers and lawful
restraint.
65.
The sentencing judge, sensibly as it seems to us, ordered a psychiatric report.
Thiswas provided by Dr Power in October 2006. The report stated that Precado
had nodiscernible psychiatric illness but she did have an emotionally unstable
personality
disorder,
consistent with the description of her being aggressive, chaotic and
unpredictable.
She had a dissocial personality disorder of the type not amenable to
medical
treatment.
66.
The sentencing judge considered that her motivation for committing the offences
wasunclear but she had said that the first arson was an attempt on her own
life; his
impression
was that she was out of control and self-absorbed, not caring how much
trouble
and difficulty she caused for others and who had developed a taste for
startingfires in prison. He noted that both the pre-sentence report and the
psychiatric reportfound that she posed a high risk of causing serious harm to
others.
67.
The judge found that despite her seemingly positive response to counselling in
prison,
he
could not ignore the taste which she had developed for starting fires. He had
no
hesitation
in finding that she posed a significant risk of causing serious harm to
members
of the public. The judge considered there to be a real possibility that she
might
start a fire in a hostel, house or block of flats and in doing so would likely
causegreat injury to others or loss of life.
68.
In reaching that conclusion, the judge stated that this had not been through
any
application
of a statutory assumption but his own view of the danger that she
presented
having regard to her offending in the cases for which he was sentencing her.We
might add that his assessment of the risk that she presented was shared by
thewriter of the pre-sentence report and the psychiatrist, as we have already
observed.
69.
He considered that the appropriate determinate sentence would have been three
years;one half of that is 18 months; from that he deducted the 12 months that
she hadalready spent in prison to give a minimum specified term of just 6
months.
70.
That this term has long since been served is no reason to conclude that the
sentence as originally passed was wrong. Indeed for the reasons we have given
the judge wasplainly entitled to conclude that she was dangerous and that the
risk that she presented could be contained only by a sentence of IPP. Indeed
faithfully and properly applying the law as laid down by Parliament, he could
hardly come to any other conclusion.
71.
Accordingly, this application for leave to appeal her sentence out of time is
doomed to fail and we refuse to extend time.
Judgment Approved by the court for
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(2) David Craig Quaglia
72.
On 22 February 2007, in the Crown Court at Stoke-on-Trent, following his
earlier
plea
of guilty to an offence of arson being reckless as to whether life was
endangered,contrary to section 1 of the Criminal Damage Act 1971, Quaglia, then
aged 26, wassentenced by Mr Recorder Bowers QC to IPP, with a minimum term specified
of 21months.
73.
The advocate appearing for him at the original hearing advised against an
appeal; thatis not perhaps surprising since he had accepted that Quaglia was
dangerous within themeaning of the CJA 2003.
74.
The single judge has referred his application for an extension of time (of
fully 7½
years)
in which to apply for leave to appeal against sentence to the Full Court. He
has now served a sentence well beyond his tariff but remains in custody. It is
said on his behalf that it is in the interests of justice for the case to be
heard out of time.
75.
The facts are as follows.
i)
Quaglia was at the time aged 26. He was being taunted and bullied by a
couple
of brothers, who lived nearby; he was not alone in this since other
neighbours
had often complained that the brothers were causing trouble and
nuisance
on the estate.
ii)
On 23 July 2006, one of the brothers had called him a “grass”, had punched
Quaglia
in the face and knocked him off his bike, he had then threatened to
burgle
his house and smash up his mother’s car, he had then taken Quaglia’s
bike
and ridden off on it. Quaglia did not want to report the matter to the
police,
since he was afraid of reprisals; he decided to take his own revenge.
iii)
He went home and emptied a bottle of turpentine into an empty coffee jar; he
then
put some tissue paper in the top of the jar, so as to create a primitive
petrol
bomb. He went round to the brothers’ house, which was in a terrace,
and
knocked on the front door, to see if anyone was home; there was no
answer
so he assumed – wrongly as it turned out – that no-one was at home.
He
went to the back of the house, lit the tissue paper and flung the bomb at the
house
and ran off.
iv)
The bomb landed on a flat roof and burst into flames. Neighbours saw what
had
happened and managed to put the fire out with buckets of water. It could
have
been very different: a senior officer of the Fire Service pointed out that a
fire
originating in the guttering and soffit area of a traditional terraced property
could
develop rapidly and spread into the roof void.
v)
Meanwhile, Quaglia had himself rung the emergency services. When the
police
called, he said that he had petrol bombed the brothers’ house; he
explained
that he had had enough from them.
vi)
In interview, he explained that he was trying to scare the brothers because he
was
worried about his mother. He said he would not have done it if he thought
Judgment Approved by the court for
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anyone
had been home. He accepted that it was a really stupid thing to have
done.
He apologised for scaring his neighbours.
76.
He had many previous convictions mainly for low level assaults and public order
offences.
He did however have a previous conviction for possessing a knife and a
conviction
for affray, which was a specified offence; the notice of appeal stated that
this
was a domestic offence, as if to suggest that it was a matter of no
consequence.
In
fact he returned home one night very much under the influence of drink, to find
his
partner
with another man, he suspected her of being unfaithful, he fetched an air
pistol and hit both his partner and her friend with the airgun, the resulting
disturbance
spread
into the street, hence the charge of affray, for which he was sentenced to 4
months
imprisonment. His longest previous sentence was six months’ imprisonment
for
theft in 2003.
77.
The pre-sentence report identified a pattern of aggressive behaviour, use of
drugs,alcohol and poor emotional management. The writer considered that he had
a
worrying
attitude to weapons. Considering the facts of the instant offence, she
thought
that Quaglia posed a high and significant risk of harm to the public. It is,
quite
rightly, pointed out in the notice of appeal that this does not precisely
address
the
statutory criteria, which required the offender to present a significant risk
of
causing
serious harm.
78.
There was also a psychiatric report from Dr Vaggers, which although not focused
on the risk that Quaglia presented, did make clear that Quaglia did not have
any mental illness or psychiatric condition which predisposed him to arson;
indeed, the report stated, in terms (at paragraph 108) that Quaglia did not
have a dangerous fascination with fire setting.
79.
The sentencing judge considered that the arson was extremely serious. He
correctly pointed out that arson was a specified offence and that Quaglia had a
previous conviction for affray, which was another specified offence, which
required the court to assume that he was dangerous unless it was unreasonable
to apply the assumption; he did not find it unreasonable to come to that
conclusion and accordingly he passed, as he was then bound to do, a sentence of
IPP.
80.
It was argued before us that the sentence of IPP was wrong in principle. It is
said thatthe assumption in section 229(3) of the CJA 2003 only bit because
Quaglia had a
previous
conviction for affray in a domestic context. It was suggested that his
previous
convictions for low level violence had not caused any serious harm and did
not,
at least in themselves, indicate a significant risk of serious harm. The judge
should
not therefore have applied the statutory assumption.
81.
It was also said that that there were significant mitigating features in the
arson; that ittook place in daytime when there was less chance of anyone being
home, but in fact somebody was at home; that he took steps to find out if
anyone was home, but in fact the steps were ineffective; that the fire was not
set at an entry or exit point, that it was started outside, not inside and that
the damage was minimal, but it could have been very different had the fire
taken hold, as it easily could have done. Furthermore it is said that Quaglia
ran home and called the emergency services and then made full admissions and
pleaded guilty at the first opportunity. But this was a case where he threw a
lighted ‘turps’ bomb at an occupied house in revenge; had the fire taken hold,
Judgment Approved by the court for
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the
occupier could easily have been harmed, or even killed, by fire or by smoke
inhalation.
82.
We do not accept that there were substantial mitigating circumstances in the
instant offence. It was a very serious offence, which created a gross and
obvious risk to the occupier and indeed to the neighbours. He did have significant
previous convictions, including for a specified offence. In our judgment, by
passing a sentence of IPP, the Recorder was faithfully and properly applying
the law as laid down by the CJA 2003. We see no fault in his reasoning or
indeed in his conclusion.
83.
Accordingly, we refuse leave to extend time for appealing.
(4) Paul Anthony Woodward
NOTE: The provisions of the Sexual
Offences (Amendment) Act 1992 apply to
this offence, so that no
publication of these proceedings should include any detail by which any of the
complainants might be identified
84.
In the Crown Court at Maidstone, Woodward, then aged 48, was convicted after a
trial on counts 1, 3, 4, 5, 6 and 8 – 11 of inciting a child to engage in
sexual activity,
contrary
to section 10(1) of the Sexual Offences Act 2003. He was also convicted on
count
2 of inciting a child under the age of 13 to engage in sexual activity,
contrary to
section
8(1). He was convicted on count 7 of sexual activity with a child, contrary to
section
9(1). He was convicted on count 12 of possessing indecent photographs of
children,
contrary to section 160(1) of the Criminal Justice Act 1988.
85.
On 10 November 2008 he was sentenced by the trial judge, HH Judge O’Mahony, as
follows: on count 4 to a sentence of IPP, under s.225 of the CJA 2003 (as
amended),with a minimum term specified of 2½ years (predicated on a notional
determinate term of 5 years) with a direction that the time spent on remand
should count towards sentence. No separate penalty was passed on the other
counts.
86.
A Sexual Offences Prevention Order was made which was recorded as indefinite in
duration. We observe, in passing, that at some time the terms of this Order
will need re-drafting in the light of the decision of this court in Smith [2012] 1 Cr App R (S) 82when and if
Woodward is eventually to be considered for release. A draft has been provided
by counsel. He is presently still in custody.
87.
It is not certain what advice he was given after his conviction, but it is to
be inferred that he was advised against an appeal. His application for an
extension of time (of nearly 6 years) for leave to appeal against sentence has
been referred to the full Court by the Registrar.
88.
The facts of each offence fell into very clear pattern.
i)
Woodward who was then aged 48, held open house for adolescent boys, whom
he
enticed with offers of cannabis and payments for sexual favours. He
arranged
to pick them up in his car and take them back to his house; realising
that
his neighbours might suspect that something untoward was going on if
they
saw boys constantly arriving at his house, he would ask them to duck
down
below the level of the car windows so as to avoid detection.
Judgment Approved by the court for
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ii)
The charges related to seven different boys; all told a similar tale. In the
circumstances
it is unnecessary to detail the particular circumstances of each
count.
Having lured them back to the house, he would invite them to
masturbate
in his presence, in return for money: typically £10 or £20. He
sometimes
asked if he could touch them but they always refused and he never
forced
himself upon them. He further humiliated some of the boys giving
them
money in return for watching them urinate, or even defecate. Some of
the
boys became frequent visitors. One of the boys was as young as 11. The
course
of offending covered a number of months.
iii)
Count 4, to which the sentence of IPP attached, was typical of the other
offences;
a 14 year old boy, who visited on four separate occasions,
masturbated
in Woodward’s presence and was paid to do so.
iv)
When he was arrested, the police found that he had kept a written record
describing
in salacious detail what he had done and to whom.
v)
His computer was seized but only one indecent image was found, and that was
at
level one.
vi)
He was released on bail but his offending continued, except that he met the
boys
upon the street and did not bring them back to his house.
vii)
Despite the overwhelming evidence of these seven separate boys, Woodward
contested
the trial, which lasted a couple of weeks.
89.
The pre-sentence report made clear that, even after conviction, Woodward did
not accept his guilt. He remained focussed on the impact such behaviour had had
on him and did not demonstrate any awareness of victim empathy or consequential
thinking. In view of his continued denials, he was unsuitable for any of the
sexual offender treatment programmes. He had limited insight into the effects
of sexual abuse on victims both in the short and long term. He was assessed as
being a medium risk of re-offending.
90.
The judge heard the trial and was therefore in an excellent position to come to
a
conclusion
as to the risks presented by Woodward who was 48 years old. He had
been
a teacher for many years but these offences were not committed within that
context,
as many testimonials confirmed. He had no previous convictions. He was in
poor
health.
The
judge said correctly, in our judgement, that he had persistently and
over
a significant period of time carried out organised recruitment of under aged
boys for the purposes of his sexual gratification and interest. The judge
recognised that the provisions of the CJA 2003, as amended in 2008, were not
designed to be
implemented
for low level offending, but there were many aggravating factors: he
gave
the boys money, he offered them drink and cannabis, the offending continued
after
his arrest and release on bail. Furthermore, it did have a serious effect on
some
of
the boys, who became understandably upset and confused. Furthermore, he
continued
to deny that he had a sexual interest in adolescent boys. The judge
concluded
that there was a significant risk of serious harm from future specified
offences
committed by him and thus there must – a word that the judge did indeed use -
be an indeterminate sentence of IPP. He therefore passed such a sentence on one
count, count 4 and imposed no separate penalty on all the other counts.
Judgment Approved by the court for
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91.
He fixed the notional determinate sentence at 5 years imprisonment; thus the
minimum
term was 2½ years imprisonment.
92.
It was said in the grounds of appeal that the judge failed to properly consider
lesser alternatives to a sentence of IPP; that the sentence was
disproportionate or manifestly excessive because other combined lesser
restrictions existed that would adequately protect the public. It was also
argued that the effect of the sentence has been to fall foul of various
Articles of the European Convention of Human Rights Articles, a point which we
considered at paragraphs 29 to 32 above.
93.
It is important to note that Mr Rule does not contend that the finding of
dangerousness was wrong when made at the time; indeed before us he specifically
confirmed that Woodward was dangerous at the time of sentence. That being so,
under the CJA, as amended, the judge was not required to pass a sentence of
IPP, but Mr Rule contended, quite rightly, that the judge should have considered
whether any alternative was available. The judge did not do so but that, no
doubt, was because he was sentencing before the guidance given by this court in
R v C to which we have referred at paragraph
22.iii) above.
94.
We must therefore consider whether there was any viable alternative. In the
face ofWoodward’s continued denials, an extended sentence would not provide any
protection
to teenage boys, since he would not have been eligible for any of the sex
offending
treatment programmes and he would be released presenting precisely the
same
risk as he did before. Nor could one say with confidence that the making of a
SOPO
would suffice, since he had already offended when on bail.
So, in our judgement, the judge was really
driven to conclude that Woodward posed a risk that could not be safely
addressed other than by an indeterminate sentence.
95.
The simple fact is that he presented too great a risk of committing similar
crimes
against
teenage boys to be safely released into the community and the commission of
further offences might cause serious harm. As with the other applicants,
arguments as to the danger he now presents should be directed to the Parole
Board; in its decision of 6 October 2014, the Parole Board declined to order
release or a move to open conditions.
96.
In all the circumstances, any appeal was bound to fail and the proper course is
to
refuse
to extend time for appealing.
(5) Simeon Peter Gittens
97.
On 13 December 2006 in the Crown Court at Worcester, following his conviction
after
a trial for an offence of robbery, Gittens, then aged 30, was sentenced by HH
Judge
Cavell to IPP, with a minimum term specified of 931 days, calculated as half of
the 7 years considered to be an appropriate determinate sentence, less the time
already served.
98.
He sought leave to appeal against conviction which was refused on 29 February
2008 by the Full Court. He did not then apply for leave to appeal against
sentence, almost certainly on the basis that counsel then representing him did
not consider an appeal against sentence to be arguable. Unfortunately the
advice by trial counsel in respect of sentence cannot be found. Some 7 years
later, Gittens seeks leave to appeal against
Judgment Approved by the court for
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sentence,
asking for an extension of very nearly 8 years. He has been recalled to
custody
as, after release in July 2015 on licence, he committed a burglary in August
2015
and was sentenced to a term of imprisonment of 4½ years.
99.
The facts are as follows:
i)
On the evening of 13 September 2005 the complainant, a female customer at
Tesco
in Redditch, went to the cash machine, intending to withdraw £20. As
she
stood at the machine, Gittens approached her from behind and put one arm
around
her neck and the other around her waist.
ii)
He told her to get her money out; he said she should take out all her money, he
mentioned
£200 or £250. He said, ‘No one’s going to fucking help you’, so
she
did as she was told and withdrew another £200, which he snatched and ran
off.
iii)
He was later arrested after the CCTV footage had been studied and an image
of
the robber had been publicised locally. He was later identified by the
complainant
but he denied his guilt and, as we have said, he was only
convicted
after a trial.100.
He
was at the time aged 30. He had two convictions for robbery as a juvenile,
neither
of
which is relevant for present purposes. More importantly, in 2002, he was
sentenced
to five years’ imprisonment for robbery. He had entered a general store,
armed
with a screwdriver and a crowbar with which to threaten staff and demanded
that
they open the safe. He made off with a number of bottles of spirits. He had
many
convictions for offences of dishonesty but no other offence for violence,
although
he had three convictions for possessing an offensive weapon. There was no
pre-sentence report.
101.
The court log indicates that counsel then representing Gittens accepted that he
fulfilled
the criteria of dangerousness. That is hardly surprising given the then
statutory
assumption and the circumstances of the offence. Counsel’s submissions atthe
time were focussed on persuading the judge to pass a sentence of IPP rather
than a sentence of life imprisonment, as those were the only two sentences then
open to the judge where an offender was dangerous. Mr Banks, on behalf of
Gittens, attempted toas certain the circumstances from counsel who then
represented Gittens in accordance with the principles set out in McCook. He had no independent recollection of
the circumstances and, as we have said, the advice he gave at the time cannot
be found.
102.
The judge had heard the trial and was well placed to assess Gittens’
criminality. He found that he had deliberately targeted a woman at a cash
point, having been on a reconnaissance the day before. He was armed with a
knife and threatened to use it. When his victim gave evidence she was, as he
put it, ‘a gibbering wreck’, so it was
clear
that the offence had had a serious impact upon her.
103.
The judge recited his previous convictions for robbery and, no doubt having in
mind that there were no submissions to the contrary, concluded that he met the
criteria of dangerousness under the CJA 2003, and therefore he said that his
public duty required him to pass a sentence of IPP and he did so.
Judgment Approved by the court for
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104.
It was submitted to us on Gittens’ behalf that the judge should have ordered a
presentence report. But the court is entitled to waive the requirement for a
pre-sentence report if it is unnecessary to have one. The practice of the time
was frequently to sentence without a pre-sentence report after a trial. In any
event, a failure to obtain a pre-sentence report is not a free-standing ground
of appeal against sentence and on the facts of this case could have made no
difference.
105.
Complaint was also made that the judge’s sentencing remarks did not fully
explain how he had concluded that the criteria of dangerousness were met and
indeed why it was that a sentence of IPP should be passed. Modern sentencing
practice would be to examine such issues in rather more detail, but the judge
no doubt very much had in mind the concession by counsel that the appropriate
statutory criteria were fulfilled and that a sentence of IPP was inevitable.
106.
We have nonetheless considered the matter fully. This was a case to which the
statutory
assumption applied because Gittens had a previous conviction for a specified
offence, namely robbery, and it was a serious robbery, as we have already set
out. So not long after his release from serving the sentence for that robbery,
which was committed when armed with a screwdriver and a crowbar, he approached
the woman in the offence before the court and robbed her at knifepoint. Maybe no
injury was in fact caused, because the victim complied with the request made to
her but it may have been very different if the victim had not complied with his
request.
107.
Mr Banks on behalf of Gittens pointed out that the judge was not directed to
paragraph
36 in R v Lang, where the then Vice-President, Rose LJ,
made clear that not all robbers necessarily presented a substantial risk of
causing serious harm. Mr Banks
stressed
that Gittens had not in fact caused any serious injury, but that, no doubt, was
because the victims had complied with his demands. In our judgement, at the
time of sentence, as trial counsel then conceded, Gittens plainly presented a
substantial risk of committing a further specified offence and of causing
serious harm to the public; accordingly, we conclude that the judge was quite
right in imposing a sentence of IPP.
108.
In our judgement, the sentence as passed was entirely in accordance with the
law as it was prior to the amendments made in 2008. There are no arguable
grounds of appeal against the sentence passed in this case and the application
to extend the time is refused.
(6) Joseph Steven Powney
Note: The provisions of the Sexual
Offences (Amendment) Act 1992 apply to this offence. No reports of these
proceedings should include any particulars likely to lead to the identification
of the victim.
109.
On 29 June 2007 in the Crown Court at Oxford, following his earlier plea of
guilty to an offence of rape, Powney, then aged 16, was sentenced by HH Judge
Hall to IPP, with a minimum term of specified of three years, less the time
already served,
predicated
upon an appropriate determinate term of six years.
110.
He renews his application for an extension of time for leave to appeal against
sentence (of nearly 7½ years) following refusal by the single judge of this
application. Powney did not seek leave to appeal at the time; it is not clear
why this was so, because those
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representing
him in the application to us could not obtain any information, despite
enquiries.
He remains in custody.
111.
The facts are as follows:
i)
On 17 March 2007, at about 10:30 at night, the complainant, a slightly built
34-year-old
woman, took her dog for a walk in a public park in Bicester; it was
a
dimly lit area with paths passing through dense undergrowth. She heard
footsteps
behind her. Powney, who was only 16 at the time, approached; he
asked
her for the time. He then grabbed her anorak and pulled her towards
him,
saying that he had a knife. At first, she fought back; she hit him with her
dog
lead. She shouted for help. People living nearby heard the commotion.
He
screamed at her to shut up, saying again that he had a knife and he was
going
to stab her. She tried to break free but he was taller and stronger than
she
was and he overpowered her. He dragged her into the undergrowth. He
told
her not to run, or he would cut her from ear to ear, and even that he would
cut
her throat. During the struggle she grabbed his knife and she cut her hand.
ii)
She decided it would be foolish to resist him further and she submitted. He
forced
her to kiss him. He made her touch his penis. He sat on the floor with
his
trousers around his thighs. He made her masturbate him. He made her
perform
oral sex on him. He made her straddle him. He then had full
penetrative
sexual intercourse with her. He did not wear a condom and he
ejaculated.
He then demanded her money and phone but she had neither and
he
ran off.
iii)
She made her way to the nearby road, and sought refuge from a passing taxi
driver.
iv)
The police were called. Powney was arrested because the police had earlier
received
reports that he was drunk and acting strangely.
v)
Whilst he was being taken to the police station, he dropped a penknife on the
floor
of the police car; presumably this was the knife he used in the
commission
of the offence.
vi)
The victim was medically examined. She had sustained bruising and soreness
to
her knees and left ankle, scratch marks to the side of her body, a small cut to
her
left hand and three small cuts to her right hand where she had grabbed the
knife.
vii)
Although the Powney’s DNA was found in semen swabs taken from the
complainant,
he made no comment and certainly no admission during
interview.
viii)
There was a moving Victim Personal Statement which spells out the anguish
and
distress that the complainant suffered following this attack upon her.
112.
Although Powney was 16 at the time, he had many previous convictions for
general anti-social offending such as criminal damage, theft and vehicle taking
and minor violence including assaults on constables, common assaults and
batteries and for
Judgment Approved by the court for
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breaches
of an Anti Social Behaviour Order. He had no convictions for sexual
offences.
113.
The pre-sentence report attributed his extensive offending to a lack of
boundaries set at home, to bad peer influence, to substance misuse and his lack
of maturity. The writer considered that the nature of the offence, and its
unpredictable nature, indicateda high risk of harm to the public.
114.
There was also a psychiatric report which suggested that without intervention
Powney would pose a high risk of re-offending. The writer noted that he had
been exposed to high levels of domestic violence and as a result was highly
impulsive, lacking personal boundaries, immature, angry and oppositional. He
was a damaged young person and would require intensive intervention to avoid a
life of incarceration and a fully developed Anti-Social Personality Disorder.
He was currently amenable to
treatment.
The writer thought that opportunity might be lost if he was given an
indeterminate
or extended sentence.
115.
The judge said that what Powney had done was, as he put it, a perfectly
dreadful offence. A woman walking her dog at night was dragged into a bush,
threatened at knifepoint and raped, leaving her life shattered. He said that
although he was only 16, Powney had been raised in a household of domestic
violence and was damaged as a result. He observed that he had been in and out
of the criminal justice system since the age of 12, admittedly for relatively
minor offences usually involving violence. He identified the serious elements
of the instant offence: this was a stranger rape, at night, he ejaculated in
his victim, he used a knife and there was more than one type of sexual
activity. We might add the very serious adverse effect upon the victim. The
judge therefore concluded that Powney posed a significant risk to members of
the public of serious harm.
116.
The judge said that had he been over 21, the sentence would have been 11 years’
imprisonment. He reduced that to nine years, on account of his youth. He
reduced the nine years to six years, to take account of the plea of guilty. He
halved that and deducted the days spent in custody to reach the minimum term.
117.
It was submitted to us that the sentence was manifestly excessive in that: the
judge erred in finding Powney dangerous within the meaning set out in s.226 of
the CJA 2003; that he failed to give any consideration to the factors set out
in R v Lang, most particularly (but not confined
to) those in respect of young offenders as set out in paragraph 17 of the
judgment Further and alternatively, the judge failed to address the
consideration set out in section 226 (3) of the CJA 2003 in respect of young
offenders:
whether an extended sentence of detention would be sufficient to protect
the
public from serious harm as, in contradistinction to adults, the judge had this
option.
118.
We reject those grounds entirely. This was indeed a dreadful offence, Powney
plainly presented a substantial risk of committing a further specified offence
which might cause serious harm to the public. That he was 16 did not lessen the
risk since no one could say when the risk would have passed. Accordingly, the
judge was quite right to pass a sentence of IPP; he would have been failing in
his duty to apply the law as setout in the CJA 2003 if he did not do so.
Judgment Approved by the court for
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119.
Accordingly, the application is bound to fail and we refuse to extend time for
appealing.
(7) Nigel Darren Garbutt
120.
On 11 July 2006, after Garbutt, then aged 27, had changed his plea to guilty to
an offence of robbery, as charged in Count 1, he was sentenced by Mr Recorder
Jackson QC at the Crown Court at Sheffield to IPP under s.225 of the CJA 2003;
the following day, the Recorder specified the minimum term as 3 years, less the
26 days spent on remand.
121.
Garbutt seeks an extension of time of nearly 8½ years in which to apply for
leave to appeal against sentence. Advice was given at the time as to an appeal
against sentence. No application was made. Those representing him at the time
of his sentence cannot assist further. He remains in custody; the Parole Board
refused his release on 29 June 2015.
122.
The facts are as follows:
i)
In the early hours of 7 January 2006 Garbutt, assuming a false name, called for
a
taxi from a public telephone box at Queen’s Corner in Maltby, Rotherham,
Shortly
afterwards, the complainant, Mr Ahmed, responding to the call,
collected
Garbutt, who gave that false name. Mr Ahmed took him to
Eastwood,
as he requested.
ii)
When they reached the destination, Garbutt would not pay the fare; instead he
pulled
a long bladed kitchen knife and demanded Mr Ahmed’s takings, which
amounted
to £115 odd. At first Mr Ahmed refused to hand over the money but
Garbutt
then prodded him twice with the point of the knife and Mr Ahmed
then
handed the money over. Garbutt ran off.
iii)
He was traced after police examined the CCTV footage from the call box. He
was
arrested on 24 January 2006. In interview he admitted that he was in
Maltby
that night but denied any knowledge of the offence. Later however, he
pleaded
guilty, as we have said.
123.
Garbutt had a bad record for violence (and indeed for dishonesty). As a
juvenile, he had been convicted of robbery. In 2002 he had been sentenced to 4½
years for a robbery, in which he had attacked a man with a pointed stick in an
attempt to rob him; that same day he had ‘glassed’ another man, causing the
victim deep cuts and wounds to his head. In 2005, he was sentenced to 16 months
for an assault on a woman, causing her to sustain a broken nose and a black
eye; he had been released from this sentence only a few days before committing
the instant offence and was therefore on licence. As the judge pointed out, he
had previously committed no less than ten specified offences (being robbery,
attempted robbery, affray, unlawful wounding, assault with intent to resist
arrest, and five assaults occasioning actual bodily harm).
124.
The judge considered the facts of the offence. It had been committed while
Garbutt
was
on licence; furthermore, it was a planned offence for which Garbutt had armed
himself
with a knife before luring the taxi driver to pick him up with the intention of
robbing
him. He observed, quite rightly, that taxi drivers are to be protected by the
Judgment Approved by the court for
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courts
because they are providing a public service, often during the night, and as
such are vulnerable to attack by criminals such as Garbutt, although that
feature goes to the length of the notional determinate term rather then to the
risk he presents.
125.
The judge concluded, from all these offences and from the facts of the instant
case, that he had a propensity to use violence and to cause serious harm,
accordingly he was satisfied that Garbutt fulfilled the criteria of dangerousness
as defined by the CJA 2003; accordingly, he passed a sentence of IPP.
126.
He fixed the notional determinate term at 7 years. He gave a year’s discount
for the late plea; one half of that resulted in a minimum term of 3 years, less
the time served.
127.
It was argued before us, many years later, on his behalf that it was
unreasonable to conclude that Garbutt was dangerous. That, as we have pointed
out, was not the relevant test; because Garbutt had previously committed a
serious specified offence, in fact, many serious specified offences; the judge
was therefore required to assume that he was dangerous, unless it was
unreasonable to make this assumption. There were, in our judgement, a number of
relevant factors, which justified - indeed, they required - the assumption to
be applied. We refer to: the nature of the instant offence; the large number of
previous specified offences which he had committed, including a robbery for
which he had received a sentence of 4½ years, and an offence of glassing, and
another unpleasant assault in which he had broken someone’s nose, from which
sentence he had been released only a few days beforehand. In our judgement, he
plainly presented a substantial risk of causing serious harm by reason of the
commission of a further specified offence; the sentence of IPP was inevitable.
Accordingly the application for leave to appeal against sentence out of time is
refused.
(8) Jason William Warwick
128.
In October 2006 Warwick, then aged 37, pleaded guilty at the Crown Court at
Cambridge
to an offence of manslaughter committed in February 2006. On 7
February
2007 he was sentenced by HH Judge Worsley QC to IPP with a minimum
term
to be served of 18 months less time spent on remand. He was represented by
leading
counsel who advised that there were no grounds for appeal against the
sentence.
129.
He applies for an extension of time of over 7 years in which to apply for leave
to
appeal
against the sentence. His applications have been referred to the Full Court by
the
Registrar. He is in custody; he was moved to open conditions, but in April 2013
absconded.
He was returned to custody, sentenced to 8 months imprisonment for
unlawful
escape and held in a closed prison. A prison report prepared for us recordedthe
following:
“Warwick’s
poor attitude and behaviour reflects his frustration at his continued
incarceration and in many respects is his own worst enemy. Intellectually he
may have completed offending behaviour work but apparently chooses when and
when not to put learning skills into practice. It is also reasonable to conclude
that Warwick lacks the necessary cognitive abilities. Consequently his
behaviour is unpredictable and those workingwith him are unable to accurately
assess his risk at any given
Judgment Approved by the court for
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time.
Warwick is desperate to be released but his attitude and behaviour towards
staff is worrying and impacts professionals assessing risk and suitability for
release.”
130.
The facts of the offence were as follows:
i)
In the early hours of 21 February 2006 Warwick attacked a man named Nleya
in
an area of open parkland in Cambridge. Warwick punched Nleya very hard
to
the face causing damage to the teeth. The force of the blow was sufficient
to
fell Nleya who suffered a severe brain injury as a result.
ii)
Warwick left Nleya lying on the ground which is where a passer-by on his way
to
work found him the next morning. Nleya was still alive but he was
suffering
from hypothermia as well as the effects of the brain injury. He died
in
hospital later the same day.
iii)
The attack on Nleya was planned and premeditated in that Warwick was angry
with
Nleya for telling Warwick’s then girlfriend that Warwick had been seeing
another
woman. As a consequence the girlfriend had broken off her
relationship
with Warwick.
iv)
During the evening prior to the attack Warwick had sent a series of abusive
and
threatening text messages to Nleya. He then had gone out into Cambridge
intending
to find Nleya. He later told a friend that he in fact had encountered
Nleya
by chance at the scene of the attack. He told that friend that he had
given
Nleya “a good hiding”.
131.
Warwick had an offending history. He had convictions for specified violent
offences - assault occasioning actual bodily harm in 1989 and 1992 and for
affray in 1995 - together with convictions for lesser and non-specified
offences of violence in 1997, 1998 and 2001. In 1995, 1998 and 2001 the disposal
had been by way of a hospital order. The 2001 order was made subject to a restriction
order.
132.
The sentencing judge had reports from three separate consultant psychiatrists,
each of whom concluded that Warwick suffered periodically from mental illness.
There was some dispute as to the nature of the illness but not a dispute of any
significance to the sentencing process. Dr Tim McInerny concluded that there
was a future risk to the
public
of harm due to violent behaviour in the event of Warwick suffering a relapse in
his
mental state and/or in the event of his using illicit substances and/or
alcohol.
Professor
Coid, instructed on behalf of Warwick, took a similar view. He stated that
Warwick’s
risk of future offending was closely linked to his mental state and to his
consumption
of alcohol and/or drugs. Dr Shetty aligned the risk to the public with
non-compliance
by Warwick with his medication regime.
133.
The judge in detailed and careful sentencing remarks concluded that Warwick’s
mental
condition would deteriorate were he to abuse drink or drugs or to fail to take
his
medication. Those features were commonplace throughout his history. In the
event
of deterioration the judge concluded that Warwick would present a real and
significant
risk of harm to the public. The judge set out the test of dangerousness as
defined
by the CJA 2003 and found that it had been satisfied. He concluded that an
indeterminate
sentence was required for the protection of the public. The judge did
………………………………………………………..
Judgment Approved by the court for
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not
purport to rely on the assumption in Section 229(3) of the CJA 2003 which in
the
light
of his offending was applicable.
134.
Warwick seeks in this application to rely on the evidence of another
psychiatrist, Dr Shapero. There is no application to rely on fresh evidence. We
have considered the evidence de
bene esse. In essence Dr Shapero concluded that
Warwick was not
suffering
from a mental illness at the time that he committed the offence. He argued
that
the offence was not due to a relapse in his mental state whether by reason of a
failure
to take his medication or otherwise. Rather, his conclusion was that the
offence
in 2006 was caused by the consumption of alcohol and drugs. Dr Shapero
stated
that in consequence the judge should not have taken into account the issues of mental
illness and failure to take medication when deciding whether Warwick was
dangerous.
135.
Leaving aside whether Dr Shapero’s evidence is admissible and relevant, his
opinion fails to deal with the point with which the judge had to grapple, namely
the future risk presented by Warwick. The detailed rehearsal by the judge of
his psychiatric history demonstrated that his mental state was plainly of
relevance to the issue of future risk, irrespective of whether he was mentally
ill at the time of the offence. In any event the judge identified the use of
alcohol and/or drugs as relevant to the future risk. It is not
ecessary to lengthen this judgment with a
detailed consideration of the evidence of
Dr
Shapero and the extent to which he engaged in criticism of the judge’s
assessment of dangerousness. Insofar as he did so, Dr Shapero’s evidence falls
into the category of expert evidence criticised in a different context in Cleobury [2012] EWCA 17 at paragraphs 15 to 22. Cleobury was concerned with scientific evidence
in relation to DNA but the principles enunciated in that case are equally
applicable in the context of psychiatric evidence relating to the sentencing
process.
136.
It follows that there is no merit in this application for leave to appeal. The
judge waswholly justified in reaching the conclusion that Warwick posed a
significant risk of
serious
harm to members of the public from the commission of further specified
offences.
There can be no complaint about the minimum sentence specified which by current
standards was low. In the circumstances the application to extend time is
refused.
(9) Martin Lee Fay
137.
On 8 November 2007, Martin Fay, then aged 18, pleaded guilty at the Crown court
at Manchester to an offence of causing grievous bodily harm with intent.
Sentence was adjourned for the preparation of a pre-sentence report. Fay did
not co-operate with the Probation Service in that process. In due course on 8
April 2008 he was sentenced without any report being available. HH Judge Hammond
passed a sentence of IPP with a minimum term to be served of 2 years 8 months
less time spent on remand (229 days). It is not known for certain whether Fay
sought advice on the merits of any appeal against the sentence (as the papers
have been destroyed), but it appears he was advised against an appeal at the
time. We were told that it was not anticipated he would remain for so long in
custody.
138.
He applies for an extension of time of nearly 7 years in which to apply for
leave to appeal against the sentence. The applications have been referred to
the Full Court by the Registrar. He remains in custody.
Judgment Approved by the court for
handing down. R v Roberts and others
139.
The facts were as follows:
i)
At about 5 a.m. on 30 June 2007 a man named Naz was walking along a street
in
Manchester. He was passed by a car in which there were three young men,
one
of whom was Fay. The men in the car agreed to stop and rob Mr Naz.
The
car was turned around and went back towards Mr Naz. Two of the men in
the
car but not Fay got out and began to attack Mr Naz.
ii)
Fay then got out of the car and joined in with the attack. Mr Naz was knocked
to
the ground. He was kicked repeatedly. He was stabbed. One of the
attackers
took his mobile telephone at which all three men returned to the car
and
drove away.
iii)
Mr Naz was left with three fractures to his skull, a fractured nose, bleeding
to
the
brain and three significant stab wounds to the abdominal area. His injuries
were
life threatening.
140.
Fay had a criminal history of considerable length. Predominantly his offending
involved
burglary and like offences. However, in 2003 he was sentenced for offences
of
robbery and assault occasioning actual bodily harm, both specified offences,
and in 2004 and 2006 he was sentenced for breaches of an anti-social behaviour
order.
141.
Since Fay had refused to co-operate with the Probation Service, the judge had
little material with which to make any assessment of the nature and extent of
the risk offuture specified offences beyond the facts of the instant offence
and Fay’s criminal
history.
Although the judge referred to the previous convictions, he did not indicate
in
terms that he proceeded on the basis of the assumption in s.229(3) of the CJA
2003.
He
said that he had “regard to the facts of the offence and your record”. He
included
in
Fay’s criminal record the breaches of the anti-social behaviour order. The
judge
concluded
by reference to the matters to which he had regard that Fay was a
dangerous
offender. It is accepted on his behalf in those circumstances that the judge was
bound to impose an IPP.
142.
It was submitted in the amended grounds of appeal that it was not clear from
thejudge’s sentencing remarks that he had addressed his mind to the relevant
issue i.e. did Fay pose a significant risk of serious harm to the public from
the commission of further specified offences? In those circumstances it was
argued that the judge’s
conclusion
on dangerousness was wrong.
143.
We remind ourselves of the guidance in Johnson. The question for this court is not whether
the sentencing judge used particular or precise language in considering theissue
of future risk. Rather, we must ask whether the sentence imposed was
manifestly
excessive or wrong in principle. The judge identified the only matters on
which
he possibly could reach his conclusion as to future risk, namely Fay’s past
behaviour
and the nature of the offence for which he fell to be sentenced. His
reasoning
which led to the conclusion that Fay was a dangerous offender was set out in
clear terms.
144.
We are quite satisfied that the gravity of the offence coupled with Fay’s
previous
behaviour
amply justified the conclusion reached by the judge. The offence for which
the
judge was sentencing Fay was exceptionally serious. It demonstrated a
Judgment Approved by the court for
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willingness
to be involved in an offence which came near to killing an innocent
member
of the public. That was sufficient to justify the judge’s conclusion.
145.
Insofar as the general principles discussed earlier in this judgment have any
application,
we apply them to this case. The application for leave to appeal is without
merit.
The extension of time is not granted.
(10) Kelly Georgina Diveney
146.
On 15 November 2005 Diveney, then aged 30, pleaded guilty to a single offence
of wounding with intent at the Crown Court at Manchester. In February 2006 she
was sentenced to IPP by HH Judge Thomas. Initially the minimum term to be
served was set at 4 years less time spent on remand. Later in the same month
the minimum term was reduced to 2 years less time spent on remand. These events
occurred so long ago that there is no extant record of why there was such a
reduction or how it was effected. In any event there is no issue about the length
of the minimum term. The passage of time also means that there is no transcript
of the sentencing remarks and no information as to what advice was given to
Diveney after the sentence was imposed, despite attempts made by those now
instructed to act.
147.
She applies for an extension of time just in excess of 9 years in which to
apply for
leave
to appeal against the sentence. Her applications have been referred to the Full
Court
by the Registrar. She has been released on licence twice (August 2012 and
November
2013) and recalled twice (March 2013 and April 2014 after her arrest for
burglary).
At the time her applications were lodged she was serving a sentence of 18
months
imprisonment imposed in October 2014 for the burglary. The solicitors
representing
her on that occasion advised her to appeal against the imposition of the
sentence
of IPP. A detailed prison report before the court recorded Diveney’s own
view
of the effect of the IPP licence on her. It did not allow her to progress; she
felt
as
if she was on a “piece of string” and anyone could take her life from her. She
remains
in custody under the sentence of IPP.
148.
The facts were as follows:
i)
On the afternoon of 11 May 2005 Diveney went to the home of her cousin, a
woman
named Nicola Butler. Diveney believed that Butler was engaged in
some
kind of relationship with Diveney’s boyfriend. The two women argued
on
the front doorstep of Nicola Butler’s home for a few minutes before
Diveney
pulled out a knife with a 6 inch blade which she had brought with her
and
stabbed Nicola Butler in the stomach and the upper left arm and neck.
When
Nicola Butler said “you’ve stabbed me”, Diveney responded “so
fucking
what, die”.
ii)
Diveney made off on foot leaving Nicola Butler lying on her doorstep with
stab
wounds. The wound to the stomach caused internal damage to the
stomach
and the liver which required surgical repair. Fortunately Nicola
Butler
suffered no lasting physical injury but she did have significant
psychological
effects when she made a victim personal statement in November
2005.
Judgment Approved by the court for
handing down. R v Roberts and others
iii)
Diveney was not arrested until August 2005. In interview she claimed that,
although
she had gone to the home of Nicola Butler, she had been walking
away
when Nicola Butler came at her with a knife. A scuffle had followed in
which
she had been injured. Any stab wound suffered by Nicola Butler was in
the
course of that scuffle and must have been caused by her own knife. This
exculpatory
account was subsequently abandoned by her. She pleaded guilty
and
the account she gave to the author of the pre-sentence report was
consistent
with that plea.
149.
Diveney was just 30 when she was sentenced. She had a long criminal history,
albeitone that involved no convictions in the three years before the offence in
2005. In 1992 she was convicted of assault occasioning actual bodily harm and
robbery.
Although
she was only 16 at the time they attracted a term of detention of 12 months. There
was a further offence of robbery in 1994 and an offence of wounding in October
2001. Her last conviction before 2005 involved the unlawful possession of a lock
knife.
150.
The pre-sentence report was detailed and drew on a number of different sources
of information. It considered the issue of future risk at some length. The
author of the report identified factors in Diveney’s life which tended to
indicate a tendency to violent and uncontrolled behaviour. He concluded that
she posed a high risk of harm to the public from such behaviour. It was
implicit in the report’s conclusions that any such harm would be serious. The
report reflected on the past convictions so as to indicate that the author was
concerned with the commission of further specified offences in the future.
151.
The sentencing judge had a psychiatric report from a Dr Deo obtained on behalf
of Diveney. Dr Deo had only limited information with which to work. His main
report
said
nothing about future risk though it suggested that Diveney would benefit from
anger
management. In a very brief addendum Dr Deo offered the opinion that she did not
“pose a significant risk to public safety” but he did not provide any rationale
for this view.
152.
Given the lack of any sentencing remarks it is not possible to say precisely
how the sentencing judge approached his task. We can say that the judge was
faced with a defendant who had committed specified offences on three separate
occasions over a period of 9 years and who was assessed as dangerous by the
author of the presentence report. Moreover, the instant offence was very
serious involving the
repeated
use of a knife taken to the scene to inflict significant stab wounds. It was
the kind of behaviour which could very easily have resulted in the death of the
victim.
Whilst
the psychiatric evidence was that there was no current risk presented by
Diveney,
this evidence did not address future risk and was not substantiated by
reference
to other material. On the face of it this case was a paradigm for the
imposition
of an IPP under the law as it then stood.
153.
The grounds of appeal pointed to the fact that Diveney has been at liberty for
a totalof only 12 months since the imposition of the IPP and argue that this
demonstrates that the sentence was manifestly excessive bearing in mind the
minimum term imposed. The limited time Diveney has spent at liberty is
substantially due to the fact that she has committed further offences or
otherwise breached the terms of her
licence.
Her subsequent behaviour cannot be relevant to the appropriateness of the
Judgment Approved by the court for
handing down. R v Roberts and others
sentence
imposed in 2006. The fact that the minimum term calculated by reference to the
appropriate determinate sentence was relatively short is of no consequence to the
issue of future risk which was the reason for the imposition of an IPP under
the law as laid down under the CJA 2003. Diveney in fact was very fortunate in
the length of the minimum period to be served. Even by the standards applicable
in 2006 a determinate sentence of 4 years for a deliberate stabbing with a
weapon taken to the scene by someone with a significant criminal history would
have been lenient.
154.
The application for leave to appeal is without merit. Although we cannot know
how the judge came to the view that Diveney was a dangerous offender, we are in
no doubt that there was the ample basis which we have set out as to the basis
on which judge was entitled to have come to the same conclusion. The extension
of time is refused.
(11) Darren Paul Byrne
155.
On 30 March 2007 Darren Byrne, then aged 27, pleaded guilty at the Crown Court
at Woolwich to causing death by dangerous driving and associated driving
offences including driving whilst disqualified. On 5 May 2007 he was sentenced by
HH Judge Tain to IPP with a minimum term of 3½ years less time spent on remand.
The grounds of appeal assert that no advice on appeal was given at the time.
156.
We do not know whether the assertion in the grounds, which must have been made purely
on the basis of Byrne’s instructions, is true. Counsel then representing him could
not recollect this matter. Whilst the assertion is not relevant to the
substantive merits of the appeal, it is relevant to the issue of extension of
time.
157.
Byrne applied in April 2015 when still in custody for an extension of time of
nearly 8 years in which to apply for leave to appeal against his sentence. His
applications have been referred to the Full Court by the Registrar. Since the
imposition of the IPP Byrne was sentenced in 2010 to a long determinate sentence
of imprisonment for his part in a conspiracy to distribute Class A drugs within
a prison. He was released on licence in July 2015, but, although wanted by the
police for assault and a drugsoffence, is still at large.
158.
The facts were as follows:
i)
In the early hours of 29 December 2006 Byrne was driving in a residential part
of
South London from a party to a nearby garage in order to buy some
cigarettes.
He was giving a lift for that purpose to a 16 year old girl. He was
disqualified
from driving and he was uninsured. The car he was driving had
been
stolen a week earlier. Although Byrne was not charged with any offence
relating
to the taking of the car, it was the fact that it was stolen which led
police
officers to try and stop the car whilst Byrne was driving it. His reaction
was
to drive away at speed.
ii)
There was a police pursuit which was interrupted when the pursuing police car
lost
sight of Byrne such was the speed at which he was driving. When another
police
car encountered Byrne and took up the chase, Byrne drove too fast
round
a bend, collided with another vehicle and struck a tree. As a result the
16
year old girl was thrown from the car and killed. At the time of the incident
Judgment Approved by the court for
handing down. R v Roberts and others
Byrne
was on licence in respect of a sentence of 18 months’ imprisonment
imposed
in November 2005 for an offence of handling stolen goods.
159.
Byrne has a long criminal history. Until 2000 his offences involved dishonesty
and/or motor cars. In 2001 he was convicted of an offence of wounding in which
he had used a bottle as a weapon and had kicked his victim. In 2004 he was
convicted of robbery committed after he had been involved in a road accident,
the robbery
involving
the taking of another car by the threat of force. These were both specified
offences.
160.
The pre-sentence report addressed the issue of future risk. The author
concluded that the risk of causing harm to others was high but in the context
of harm caused“unintentionally” in the course of driving. In respect of what
the report referred to as “directed violence” the conclusion was that Byrne posed
a medium risk of harm at the higher end. The report stated that the author had
“not assessed [Byrne] as presenting a high risk of directed harm nor that
serious harm is an inevitable outcome of further offences.” We note that these
conclusions are not inconsistent with a finding that Byrne presented a
significant risk of serious harm to the public from further specified offences.
A “significant” risk is not the same as “a high risk”. The CJA 2003 does not
require serious harm to be “inevitable”. It is the future risk against which
the relevant provisions of the CJA 2003 are directed.
161.
The judge’s sentencing remarks were careful and detailed. Having rehearsed all
of the matters relevant to the offences in question he noted the assumption set
out in
s.229(3).
He concluded that it would not be unreasonable to determine that there was
a
significant risk of serious harm due to further specified offending taking into
account
the circumstances of the offences for which sentence was to be passed, the
facts
and circumstances of the previous offending, the pattern of behaviour displayed
by
Byrne and the information available about Byrne himself. The judge did not
refer
in
terms to the judgment in Lang. This is not determinative. The judge
applied the
principles
in Lang which is what matters.
162.
In the grounds of appeal it was argued that the terms of the pre-sentence report
were
such
that an indeterminate sentence was not considered by the author to be
appropriate.
As we have already identified that is not the proper conclusion to be
drawn
from the substance of the report. The fact that the author of the report did
not
suggest
a particular form of custodial sentence is to be commended. It does not
follow
that as a consequence the judge was precluded from imposing an IPP.
163.
The judge’s assessment is not open to legitimate criticism. He applied the
requirements
of the CJA 2003 to the facts of the case as he found them to be. The
application
for leave to appeal has no merit. The extension of time is refused.
(12) Sonnie Michael Wakeling
164.
On 23 June 2006 Wakeling, then aged 21, was sentenced at the Crown Court at Oxford
by Mr Recorder Blackford in respect of two offences of robbery and one
offence
of theft. Concurrent sentences of IPP were imposed in relation to the offences of
robbery. The minimum term in each instance was specified as 18 months less time
spent on remand. It is not clear from the available records whether any
separate
Judgment Approved by the court for
handing down. R v Roberts and others
sentence
was imposed in relation to the theft. In his sentencing remarks the judge
reflected
that offence in the overall indeterminate sentence, as he was entitled to do.
165.
Wakeling applies for an extension of time of nearly 9 years in which to apply
for
leave
to appeal against his sentence. His applications have been referred to the Full
Court
by the Registrar. No explanation at all is given for the delay, as we were told
that
those representing Wakeling have been unable to find those instructed at the
time sentence was passed, but it appears that he was advised against an appeal.
Wakeling has thrice been released on licence (in April 2012, June 2013 and
April 2015) only for the licence to be
revoked within a short time (November 2012, June 2013 and May 2015). We were
told that this was because of his chaotic lifestyle and the use of drugs. He
remains in custody.
166.
The proceedings in the Crown Court occurred so long ago that the only account
of the facts comes from the grounds of appeal settled almost 9 years after the
event coupled with the offence analysis in the pre-sentence report.
i)
The first robbery occurred on an afternoon in November 2005 in a street in the
centre
of Oxford. Wakeling went up to a man whom he knew, pinned him to a
wall,
demanded money and took £50 in cash and a mobile telephone. He
threatened
the man that there would be more violence should the man report
the
matter to the police.
ii)
The second robbery in January 2006 was of an off licence in Oxford.
Wakeling
threatened the proprietor by saying that he had a dirty needle is his
pocket
which he would use if he were not allowed to take some bottles of
drink.
On the basis of that threat Wakeling was permitted to leave with some
bottles
of alcohol. The theft involved stealing bottles of champagne from a
shop.
167.
Wakeling has a substantial criminal history going back to 2001 when he was aged
16. Much of his offending involved stealing from shops and minor violence. Some
of the disposals indicate that drugs were a feature of his life. In 2002 he was
convicted of an offence of robbery for which he was sentenced to 2 years’
imprisonment. This was aserious specified offence.
168.
The pre-sentence report confirmed what could be inferred from his criminal
history,
namely
that he has a history of drug and alcohol abuse. The author of the report by
reference
to an OASys assessment considered that Wakeling presented a medium risk of harm
to the public. It was considered that abstinence from drugs and control of alcohol
intake would reduce the risk.
169.
Four grounds of appeal were identified before the court. Three of the grounds
are of
academic
interest only: (i) the judge failed properly to identify which counts on the
indictment
attracted an IPP; (ii) the judge did not specify the extent of the credit (if
any)
given for the pleas of guilty; (iii) the notional determinate sentences were
excessive.
The fact is that a sentence of IPP was imposed and there were two counts on the
indictment in respect of which such a sentence was a potential outcome. Whether
more credit should have been given for the pleas and whether the notional determinate
sentences were too long is of no consequence at all now.
Judgment Approved by the court for
handing down. R v Roberts and others
170.
Wakeling remains in custody because it is not considered safe to release him,
notbecause the minimum term was of a particular length. For what it is worth
the
submission
in relation to the notional determinate sentences by reference to the
Sentencing
Guidelines Council guideline fails to take account of the fact that the
starting
point relates to an offender of good character who has committed one offence.
Wakeling
was not of good character and he had committed two robberies.
171.
This application stands or falls on the submission relating to the judge’s
finding that there was a significant risk of serious harm from the commission
of further specified offences. The judge stated expressly that he had considered
everything that had been placed before him. He found that Wakeling had committed
two serious specified offences which plainly he had. He found that he had
previously been convicted of a serious specified offence. That also was correct
though the judge did mistakenly refer
to
the previous conviction as an offence which in fact fell to be sentenced by
him.
That
can only have been a slip of the tongue given the reference later to Wakeling’s
previous
offences. The judge properly identified that he was required to make the
assumption
in s.229(3) but that he had to consider whether it would be unreasonable
to
find that there was the relevant risk. The judge set out all of the matters
which
were
relevant to that consideration, both those in favour of such a finding and
those
which
tended to militate against the finding. His judgement was that, having
considered
all of the relevant matters, there was a risk which required the imposition
of
a sentence of IPP.
The
judge’s consideration of the position was very different to
that
adopted by the judge who sentenced a Mr Ryan at the same court a few months
before
and who did not apply s.229(3) by reference to the words of the section or in
line
with the guidance in Lang (supra). In that instance this Court
did interfere with
the
sentence: see Ryan [2014] EWCA Crim 2147. That was a fact
specific decision.
The
circumstances in this instance were different as was the approach taken by the
judge.
172.
We refer again to Johnson in which at paragraph 11(i) this Court
said that “in cases to which Section 229(3) applies, where the sentencer has
applied the statutory
assumption,
to succeed the appellant should demonstrate that it was unreasonable not to
disapply it.” Wakeling has no prospect of demonstrating that in this case. The
judge
reached a conclusion which was open to him on the findings he made. It
follows
that the application is bound to fail. An extension of time is refused.
(13) Sean Dowe
173.
In November 2005 Sean Dowe, then aged 25, was convicted after a trial at the
Crown Court at Birmingham of offences of
false imprisonment, robbery, assault occasioning
actual
bodily harm and theft. In December 2005 the very experienced trial judge, HH
Judge
Stanley, imposed concurrent sentences of IPP in respect of the offences of
false imprisonment and robbery, the minimum term to be served being 5 years
less time spent on remand. Concurrent determinate terms were imposed in
relation to the other offences.
174.
He applies for an extension of time of over 9 years in which to apply for leave
to
appeal
against the sentence. It appears that no application for leave to appeal was made
at the time as he was advised it was unlikely to be successful. The
applications have been referred to the Full Court by the Registrar. He remains
in custody.
Judgment Approved by the court for
handing down. R v Roberts and others
175.
The facts were as follows:
i)
On the evening of 1 June 2005 a man called Danks was walking along a street
close
to the centre of Birmingham when he met a man called Wilson whom he knew.
Wilson asked him to get into a car parked nearby. Danks did so notrealising
that there was anything amiss.
ii)
Dowe was the front seat passenger in the car. As they drove off Danks was in
the
back of the car with Wilson and another man. Those two men began to search
through Danks’s pockets. When he tried to stop them he was punched in the face.
Danks had little money on him. Dowe and the other men in the car demanded more.
Danks said that he had some at the flat. The car wasdriven to Danks’ address
with Wilson and one of the others continuing to punch him as they drove along.
iii)
Dowe and Wilson went up to the flat which was occupied by Danks’s sister.
Dowe
assaulted her with a broom which he picked up at the flat. He took a
mobile
telephone and some cash from the flat. Dowe and Wilson then
returned
to the car in which Danks was being held against his will. The car
drove
away and the attack on Danks resumed. He was punched and the other
man
in the rear of the car used Danks’s belt as a type of ligature around his
neck.
Eventually the car stopped and Danks was dragged from the car onto a
piece
of wasteland. Dowe and the others (though not Wilson who was no
longer
there) put Danks to the ground and subjected him to a kicking. Before
they
left they removed some of Danks’s clothing.
Danks
was left unconscious. He eventually made his way to a garage from where help
was summoned. Danks sustained black eyes and multiple cuts and bruises all over
his body. There were footprint impressions on his back. He was in hospital for
a time because blood was observed in his urine. The sentencing judge found that
he
had
been scarred for life psychologically.
176.
Dowe had had a varied criminal career prior to 2005 with appearances for
offences involving violence and threats of violence. In particular in September
2003 he had been sentenced to a total of 18 months’ imprisonment for two
offences of assault occasioning actual bodily harm, the assaults being on
prison officers who had challenged him about potential possession of controlled
drugs. These were specified offences.
177.
Wilson was also sentenced to IPP albeit with a shorter minimum term to be
served.He had pleaded guilty to the counts on the indictment which related to
him. Heapplied for leave to appeal against his sentence. The Full Court granted
leave and
allowed
the appeal. A determinate sentence of the appropriate length was substitutedfor
the indeterminate sentence imposed by the Crown Court judge. The decision ofthis
Court is reported at [2006] EWCA Crim 1825.
178.
In Dowe’s grounds of appeal it was argued that the judgment of this Court in
Wilson’s
case amounted to a finding that the offences committed by Dowe were not
so
serious in themselves to warrant a finding of dangerousness. That argument
cannotbe right. Dowe was involved in the assault on Danks’s sister which Wilson
was not,an assault which was relevant to the overall assessment of the
offending even if it wasnot an assault which itself could attract an
indeterminate sentence. Further, Wilson
Judgment Approved by the court for
handing down. R v Roberts and others
was
not party to the later part of the attack on Danks which arguably was the most
serious
part of the incident. The true relevance of Wilson’s case is that it signposted
to
Dowe in 2006 that there might be some basis for him to apply for leave to
appeal.
He
did not make any such application for a further eight years. No explanation is
given
as to why, if the sentence was plainly wrong and engendered some sense of
injustice
in Dowe, he did not take any steps until 2015. These matters are relevant to
the
question of extension of time.
179.
In assessing the issue of whether Dowe was a dangerous offender the judge tookaccount
of his previous convictions, in particular the convictions in 2003 in respect
of which the licence period had not long expired prior to the events in June
2005. The judge noted that Dowe had chosen a lifestyle which involved regular
crime and the commission of offences in relation to drugs and offences of
violence. He observed that there were other less significant offences which
appeared on his record that further indicated a violent temperament. As a
result the judge concluded that there was a significant risk that Dowe would
commit further specified offences which are likely to involve serious harm to
members of the public.
180.
In this appeal it was argued that the judge was unreasonable when he concluded
that Dowe was a dangerous offender. The basis for this submission was that
Dowe’s previous offending and the instant offending did not involve any serious
harm. In those circumstances it was argued that the judge was wrong when he
concluded that there was a significant risk of serious harm. This submission
ignores the fact that a judge when imposing a sentence under s.225 of the CJA
2003 is engaged in an
assessment
of future risk. That assessment may be helped if there have been previous episodes
where someone has been seriously injured by the defendant. The fact that there
have not been any such episodes does not mean that the judge cannot conclude that
there is a future risk. In this instance it was a matter of luck rather than
judgment that Danks was not injured more seriously than he was. In any event
the judge had tried the case and presumably had seen Danks give evidence. We
have alreadyreferred to the judge’s finding as to the effect of the incident on
him.
181.
There were ample grounds for the determination by the very experienced judge in
thiscase that Dowe presented a significant risk of the kind identified within
the
dangerousness
provisions. We refer again to the decision of this court in Johnson
where
it was said that “….this Court will not normally interfere with the conclusions
reached
by a sentencer who has accurately identified the relevant principles and
applied
his mind to the relevant facts.” The judge in this case did both. He did not
refer
in terms to the assumption in s.229(3), though this was applicable. Thus, any
general
argument on the effect of that section is of no relevance in this case.
182.
We are satisfied that there is no merit at all in this application. The
extension of timeis refuse
Read more -
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http://thejusticegap.com/2015/10/resistance-from-within-to-goves-prison-reforms/
Lord Chief Justice gives judgment in Philip Rule’s IPP appeal case
Fri, 18 Mar 2016
Thirteen
cases were considered by the Court of Appeal (Criminal Division) where
prisoners serving indeterminate sentences of imprisonment for public
protection (“IPP” sentences) had applied for permission to appeal
against the sentence. It was thought by the various representatives on
behalf of those applicants that grounds of appeal properly arose against
the findings made by sentencers that had led to those individuals
receiving IPPs in the first place. There were a number of existing Court
of Appeal authorities that established principles upon which reliance
was variously placed.
Every one of the thirteen cases has been refused the
necessary extension of time and dismissed (by the judgment handed down
today, Woodward, Roberts et al [2016] EWCA Crim 71). This essentially
means that the Court of Appeal has turned its back on the existing IPP
population, save in rare cases, and considers that it must be for the
Executive to find a solution to the problem of ongoing IPP detention for
those who would no longer be eligible for indefinite detention since
the abolition of this troubled sentence (that did not make provision for
the existing IPP population).
Points of practice notable from the Lord Chief Justice’s judgment are:
(1) Even where there is no
criticism of the previous representatives, those who did not either
represent the offender as a solicitor or appear as an advocate at the
sentencing hearing have a professional duty to “make inquiry of those
who represented the offender at the trial so that they are apprised of
all relevant information” [40]. This is not a matter of waiver of
privilege, but is so that the fresh representatives are able to ensure
any inaccuracy to intended grounds or factual information is able to be
corrected. This seems to place a burden also on first-instance
representatives to do their best to provide some form of response to the
fresh representatives pro bono. This guidance is not limited to IPP
appeals.
(2) The test for time
extensions in IPP cases remains the same as in other cases (the Court
considers the circumstances of the application to extend time including
the merits and interests of justice: [37]-[39]). However the Court’s
attitude to time extensions should be noted and first-instance
representatives should not allow time limits to expire.
(3) Where an IPP sentence
was within the area of judgment open to a judge to pass, i.e. - where
the judge has followed the provisions of the Criminal Justice Act 2003
as interpreted by the decisions of the Court of Appeal and has passed a
sentence of IPP in circumstances where it was properly open to the judge
to pass such a sentence, the Court “will not now revisit sentences of
IPP on the bases argued in these applications. Unless clear new points
are raised, the court will in all such cases in the future simply refuse
an extension of time without more. The remedy, if any, is one that the
Executive and Parliament must address” [42].
The judgment cites several of Philip Rule’s previous cases in respect of IPP sentences and detention, including:
R(GJD) v Governor of Her Majesty’s Prison Grendon [2015]
EWHC 3501 (Admin), R v GJD [2015] EWCA Crim 599 (an example of a
successful appeal against an IPP that remains recognised by the new
judgment)
R (Kaiyam) and R (Haney) v Secretary of State for Justice [2015] AC 1344
R (Sturnham) v Secretary of State for Justice and the Parole Board [2013] 2 AC 254
R v Docherty [2014] 2 Cr. App. R. (S.) 76
Click here to view a copy of the
judgment.
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Points of practice notable from the Lord Chief Justice’s judgment are:
(1) Even where there is no
criticism of the previous representatives, those who did not either
represent the offender as a solicitor or appear as an advocate at the
sentencing hearing have a professional duty to “make inquiry of those
who represented the offender at the trial so that they are apprised of
all relevant information” [40]. This is not a matter of waiver of
privilege, but is so that the fresh representatives are able to ensure
any inaccuracy to intended grounds or factual information is able to be
corrected. This seems to place a burden also on first-instance
representatives to do their best to provide some form of response to the
fresh representatives pro bono. This guidance is not limited to IPP
appeals.
(2) The test for time
extensions in IPP cases remains the same as in other cases (the Court
considers the circumstances of the application to extend time including
the merits and interests of justice: [37]-[39]). However the Court’s
attitude to time extensions should be noted and first-instance
representatives should not allow time limits to expire.
(3) Where an IPP sentence
was within the area of judgment open to a judge to pass, i.e. - where
the judge has followed the provisions of the Criminal Justice Act 2003
as interpreted by the decisions of the Court of Appeal and has passed a
sentence of IPP in circumstances where it was properly open to the judge
to pass such a sentence, the Court “will not now revisit sentences of
IPP on the bases argued in these applications. Unless clear new points
are raised, the court will in all such cases in the future simply refuse
an extension of time without more. The remedy, if any, is one that the
Executive and Parliament must address” [42].
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- See more
at:
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Points of practice notable from the Lord Chief Justice’s judgment are:
(1) Even where there is no
criticism of the previous representatives, those who did not either
represent the offender as a solicitor or appear as an advocate at the
sentencing hearing have a professional duty to “make inquiry of those
who represented the offender at the trial so that they are apprised of
all relevant information” [40]. This is not a matter of waiver of
privilege, but is so that the fresh representatives are able to ensure
any inaccuracy to intended grounds or factual information is able to be
corrected. This seems to place a burden also on first-instance
representatives to do their best to provide some form of response to the
fresh representatives pro bono. This guidance is not limited to IPP
appeals.
(2) The test for time
extensions in IPP cases remains the same as in other cases (the Court
considers the circumstances of the application to extend time including
the merits and interests of justice: [37]-[39]). However the Court’s
attitude to time extensions should be noted and first-instance
representatives should not allow time limits to expire.
(3) Where an IPP sentence
was within the area of judgment open to a judge to pass, i.e. - where
the judge has followed the provisions of the Criminal Justice Act 2003
as interpreted by the decisions of the Court of Appeal and has passed a
sentence of IPP in circumstances where it was properly open to the judge
to pass such a sentence, the Court “will not now revisit sentences of
IPP on the bases argued in these applications. Unless clear new points
are raised, the court will in all such cases in the future simply refuse
an extension of time without more. The remedy, if any, is one that the
Executive and Parliament must address” [42].
- See more at:
https://www.no5.com/news-and-publications/news/1349-lord-chief-justice-gives-judgment-in-philip-rule-s-ipp-appeal-case/#sthash.c0oNi3SH.dpuf
Points of practice notable from the Lord Chief Justice’s judgment are:
(1) Even where there is no
criticism of the previous representatives, those who did not either
represent the offender as a solicitor or appear as an advocate at the
sentencing hearing have a professional duty to “make inquiry of those
who represented the offender at the trial so that they are apprised of
all relevant information” [40]. This is not a matter of waiver of
privilege, but is so that the fresh representatives are able to ensure
any inaccuracy to intended grounds or factual information is able to be
corrected. This seems to place a burden also on first-instance
representatives to do their best to provide some form of response to the
fresh representatives pro bono. This guidance is not limited to IPP
appeals.
(2) The test for time
extensions in IPP cases remains the same as in other cases (the Court
considers the circumstances of the application to extend time including
the merits and interests of justice: [37]-[39]). However the Court’s
attitude to time extensions should be noted and first-instance
representatives should not allow time limits to expire.
(3) Where an IPP sentence
was within the area of judgment open to a judge to pass, i.e. - where
the judge has followed the provisions of the Criminal Justice Act 2003
as interpreted by the decisions of the Court of Appeal and has passed a
sentence of IPP in circumstances where it was properly open to the judge
to pass such a sentence, the Court “will not now revisit sentences of
IPP on the bases argued in these applications. Unless clear new points
are raised, the court will in all such cases in the future simply refuse
an extension of time without more. The remedy, if any, is one that the
Executive and Parliament must address” [42].
- See more at:
https://www.no5.com/news-and-publications/news/1349-lord-chief-justice-gives-judgment-in-philip-rule-s-ipp-appeal-case/#sthash.c0oNi3SH.dpuf
Points of practice notable from the Lord Chief Justice’s judgment are:
(1) Even where there is no
criticism of the previous representatives, those who did not either
represent the offender as a solicitor or appear as an advocate at the
sentencing hearing have a professional duty to “make inquiry of those
who represented the offender at the trial so that they are apprised of
all relevant information” [40]. This is not a matter of waiver of
privilege, but is so that the fresh representatives are able to ensure
any inaccuracy to intended grounds or factual information is able to be
corrected. This seems to place a burden also on first-instance
representatives to do their best to provide some form of response to the
fresh representatives pro bono. This guidance is not limited to IPP
appeals.
(2) The test for time
extensions in IPP cases remains the same as in other cases (the Court
considers the circumstances of the application to extend time including
the merits and interests of justice: [37]-[39]). However the Court’s
attitude to time extensions should be noted and first-instance
representatives should not allow time limits to expire.
(3) Where an IPP sentence
was within the area of judgment open to a judge to pass, i.e. - where
the judge has followed the provisions of the Criminal Justice Act 2003
as interpreted by the decisions of the Court of Appeal and has passed a
sentence of IPP in circumstances where it was properly open to the judge
to pass such a sentence, the Court “will not now revisit sentences of
IPP on the bases argued in these applications. Unless clear new points
are raised, the court will in all such cases in the future simply refuse
an extension of time without more. The remedy, if any, is one that the
Executive and Parliament must address” [42].
- See more at:
https://www.no5.com/news-and-publications/news/1349-lord-chief-justice-gives-judgment-in-philip-rule-s-ipp-appeal-case/#sthash.c0oNi3SH.dpuf
Points of practice notable from the Lord Chief Justice’s judgment are:
(1) Even where there is no
criticism of the previous representatives, those who did not either
represent the offender as a solicitor or appear as an advocate at the
sentencing hearing have a professional duty to “make inquiry of those
who represented the offender at the trial so that they are apprised of
all relevant information” [40]. This is not a matter of waiver of
privilege, but is so that the fresh representatives are able to ensure
any inaccuracy to intended grounds or factual information is able to be
corrected. This seems to place a burden also on first-instance
representatives to do their best to provide some form of response to the
fresh representatives pro bono. This guidance is not limited to IPP
appeals.
(2) The test for time
extensions in IPP cases remains the same as in other cases (the Court
considers the circumstances of the application to extend time including
the merits and interests of justice: [37]-[39]). However the Court’s
attitude to time extensions should be noted and first-instance
representatives should not allow time limits to expire.
(3) Where an IPP sentence
was within the area of judgment open to a judge to pass, i.e. - where
the judge has followed the provisions of the Criminal Justice Act 2003
as interpreted by the decisions of the Court of Appeal and has passed a
sentence of IPP in circumstances where it was properly open to the judge
to pass such a sentence, the Court “will not now revisit sentences of
IPP on the bases argued in these applications. Unless clear new points
are raised, the court will in all such cases in the future simply refuse
an extension of time without more. The remedy, if any, is one that the
Executive and Parliament must address” [42].
- See more at:
https://www.no5.com/news-and-publications/news/1349-lord-chief-justice-gives-judgment-in-philip-rule-s-ipp-appeal-case/#sthash.Gp66KPr6.dpuf
