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Sentencing Dangerous Offenders

Legislation

The Criminal Justice Act 2003 introduced the concept of a "dangerous offender". The provisions introduced indeterminate sentences of imprisonment for public protection and extended (determinate) sentences of imprisonment for dangerous sexual or violent offender. These provisions came into effect on 4 April 2005.

Amendments were made by sections 13 to 18 of the Criminal Justice and Immigration Act 2008 in relation to both adults and juveniles. These changes came into effect on 14 July 2008.

The principal changes to the 2005 arrangements were:

  • The imposition of a seriousness threshold which the immediate offence being sentenced must reach, before a public protection sentence can be imposed. This applies to both indeterminate sentences and extended sentences. The threshold is that the offence must merit at least two years of actual time served in custody. (This is expressed in different ways for indeterminate and extended sentences - 2 year tariff for the former and 4 years determinate for the latter, to allow for release at the half way point - but in both cases the requirement is for the offence to be serious enough to justify 2 years' in prison.);
  • An exception to the seriousness threshold where the offender has previously been convicted of one of a range of very serious offences. This exception only applies to adult offenders. The list of offences that "qualify" the offender is based on the "two strikes" or "automatic life" provision of the Powers of the Criminal Courts (Sentencing) Act 2000 (repealed by the dangerous offenders legislation) and includes offences such as soliciting etc murder; manslaughter; Section 18 GBH; rape; rape of a child; robbery with firearm; possession of firearm with criminal intent. The list is at Schedule 15A CJA 2003 (as amended by the CJIA 2008);
  • The removal of the rebuttable presumption of risk. Originally, in the case of adult offenders, where there existed a previous conviction for a violent or sexual crime the legislation required the court to conclude that the offender was dangerous (unless unreasonable to do so in the circumstances). From 14 July 2008, this presumption no longer applies;
  • Allowing courts greater discretion so that even where all the conditions are met the court is not obliged to impose an IPP or extended sentence. The public protection sentences are no longer mandatory even when the relevant conditions are fulfilled, but are simply available to judges to use at their discretion;
  • A change to the structure of extended sentences so that offenders are automatically released on licence halfway through the custodial part, rather than halfway release being at the Parole Board's discretion.

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Summary

Since 14 July 2008, before the court can sentence an offender to imprisonment for public protection, it must be satisfied:

  • the offender has committed a specified offence, (or a serious specified offence); and
  •  that there is a significant risk of serious harm to members of the public occasioned by the commission of further specified offences by the offender.

A specified offence is one listed in Schedule 15 to the Act (sexual, violent and terrorist related offences). A serious specified offence is any specified offence which is punishable in the case of an adult with at least 10 years' imprisonment.

If the offence is one for which the maximum penalty is a discretionary life sentence, and the court considers that seriousness of the offence, or of the offence and one or more offences associated with it, justifies life imprisonment, then the court must impose life imprisonment (or a sentence of custody for life, if 18 but under 21).

In R v Wilkinson; R v Ali, R v Olawaiye; R v Bennett (Att-Gen's Reference No. 43 of 2009), [2009] EWCA Crim 1925; [2010] Crim. L.R. 69, CA, it was held that a discretionary sentence of life imprisonment should be reserved for cases of the utmost gravity. The Court added that where a case was so serious that a discretionary life sentence was required, it would be unduly lenient to impose any other sentence, including an IPP with the same minimum term.

If (a) the offence is not one for which the maximum sentence is life imprisonment or (b) the circumstances of the offence do not justify imprisonment for life, the court must consider whether:

  • the offence crosses the seriousness threshold (unless, in the case of an adult, the defendant has previously been convicted of one of the offences listed in schedule 15A); and
  • no other overall sentencing package short of an IPP could be found which would provide the necessary public protection from this offender:

If these conditions are satisfied, the court must then decide whether to impose:

  • an indeterminate sentence of imprisonment for public protection (detention in a young offenders institution for public protection if 18 but under 21), but only if the offence is a serious specified offence; or;
  • an extended sentence of imprisonment for public protection (extended sentence of detention in a young offenders institution if 18 but under 21), if the offence is either a specified offence or a serious specified offence; or
  • any other sentence that the court considers to be appropriate and has power to impose.

In other words, whereas the imposition of a discretionary life sentence is mandatory where the court are satisfied that the criteria for such a sentence are met, the imposition of a sentence of imprisonment for public protection is discretionary, even if the court finds the criteria have been met. In R v Owen [2009] EWCA 2259 the court of Appeal emphasised that the sentence of imprisonment for public protection does not exist in order to pass additional punishment but so that, in appropriate circumstances the necessary protection can be given to the public against future risk.  

The above provisions are abolished on 3 December 2012 and replaced by life sentences for second listed offence (the new Mandatory Life Sentence) and a new extended sentence (the Extended Determinate Sentence). Section 122 of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 introduces the new Mandatory Life Sentence by inserting section 224A Criminal Justice Act 2003. Section 124 LASPO Act 2012 introduces a new section 226A  CJA 2003 (extended sentences for certain violent or sexual offences: persons 18 or over) and a new section, section 226B (extended sentence for certain violent or sexual offences: persons under 18)

Section 122 LASPO Act 2012 ( Section 224A CJA 2003) creates a new sentence of the "life sentence for second listed offence". This is not a straight replacement for IPP but provides a new route to imposing a life sentence. It will be available where:

  1. a person aged 18 or over is convicted of an offence listed in part 1 of schedule 15B of the CJA 2003 (a new schedule);
  2.  the offence is such that the court would have imposed a determinate sentence of 10 years or more (including an extended sentence where the custodial term would have been 10 years or more), and
  3. the offender has a previous conviction for an offence listed in schedule 15B (not just in Part 1) for which he received as life sentence (with a minimum term of at least 5 years) or a determinate sentence of 10 years or more (including an extended sentence where the custodial term was 10 years or more).

Schedule 15B contains the relevant offences and quite a few of them are not punishable with life imprisonment. Many of the sexual offences listed carry maximum sentences of 10 or 14 years.

Even if all the conditions in section 122 apply, the court may still avoid passing the new Mandatory Life Sentence (MLS) if there are particular circumstances relating to either the current offence or the past offence, or to the offender which "would make it unjust to do so in all the circumstances". This is the same formula used in three - strike drug trafficking and three - strikes domestic burglary provisions.

Under Section 124 LASPO Act 2012 the new extended sentence for adults (see new s. 226A CJA 2003) can only be imposed where all the following conditions are met:

  • The defendant has been convicted of a specified offence (whether the offence was committed before or after this section came into force);
  • The court considers that the defendant presents a substantial risk of causing serious harm through re-offending by committing a further specified offence. The "significant risk" test is the same as the test for IPP therefore they must meet the dangerousness threshold,
  • The court is not required to impose a sentence of imprisonment for life, and
  • Condition A or B is met

Condition A: at the time the offence was committed the defendant had been convicted of a sexual or violent offence listed in Schedule 15B of the CJA 2003 (schedule 15A is redundant);

Condition B: that the current offence merits a determinate sentence of at least 4 years

The EDS consists of a custodial term, which should reflect the seriousness of the offending; followed by an extended licence period which is determined by the court on the basis of what the court considers "necessary for the purpose of protecting members of the public from serious harm." However, the extended licence period is limited to up to 5 years for a violent offence, and 8 years for a sexual offence.

The sum of the custodial term and the extended licence must not exceed the maximum penalty for the offence.

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Legal Aid, Sentencing and Punishment of Offenders Act 2012 - transitional arrangements

IPPs/EPPs - sections 225 and 226 (imprisonment for public protection for serious offences) and sections 227 and 228 (extended sentences for certain violent or sexual offences) will not be available where an offender is convicted after 3rd December 2012, regardless of the date on which the offence was committed.

However, the IPP and EPP sentence will remain available on or after 3rd December 2012 for offenders who were convicted before the 3rd December 2012 but are not sentenced until on or after that date (the new Extended Determinate Sentence (EDS) is not available for such offenders).
 
The new mandatory life sentence for second time serious offenders will only apply where the second offence is committed after 3rd December 2012. (The first offence may have been committed at any time.)

The new Extended Determinate Sentence (EDS) (sections 226A and 226B of the Criminal Justice Act 2003 as inserted by section 124 of the 2012 Act) will be available for any offender who is convicted on or after 3rd December 2012, regardless of the date of the offence.

Dangerous Offenders at the Magistrates' Court

Magistrates cannot impose a term of imprisonment for an indeterminate length, which rules out the imposition of public protection sentences by magistrates. Nor can they, currently, sentence an offender to more than 12 months' imprisonment, which rules out extended sentences because these must include a custodial term of at least 12 months.

If, following conviction or guilty plea, a magistrates' court determines that an offender is dangerous, then the offender must be committed to the Crown Court for sentence - section 3 Powers of Criminal Courts (Sentencing) Act 2000.

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Definitions

Specified Offences

These are defined in section 224(1) and listed in Schedule 15 to the Criminal Justice Act 2003. The schedule is extensive, listing every indictable only and either way offence of sex or violence, ranging from actual bodily harm and exposure through to manslaughter and rape.

Part One contains specified violent offences including (since section 138 of the Coroners and Justice Act 2009 came into force on the 12 January 2010) terrorist-related offences, and Part Two contains specified sexual offences.

Serious Offences

These are defined in section 224(2) as specified offences that are punishable with either life imprisonment or with imprisonment for 10 years or more.

Dangerousness

An offender is dangerous if:

"the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences".

References: (section 225(1)(b), section 225(2)(b), section 226 (1)(b), section 226 (2)(b), section 227 (1)(b), section 228 (1)(b) CJA 2003)

"Significant risk" is not defined in the legislation and will be for the court to assess in each case. In the leading case of R v Lang [2005] EWCA Crim 2864, the Court of Appeal held that significant means noteworthy, of considerable amount or importance. Risk must be to members of the public. This is widely construed and can include the offender, particular groups of members of the public such as co-habitees or abused children, and individuals.

In Pedley, Martin and Hamadi [2009] 1 WLR 2517, the Court confirmed the indication given in Lang that a "significant risk" presented a higher threshold than a mere possibility of occurrence. "Significant" should be given its ordinary English meaning of "noteworthy" or "of considerable amount or importance". The Court did not think any further re-definition of the term would be helpful. In particular, they rejected the invitation of counsel for the appellants to re-define it in terms of numerical probability or any other percentage of likelihood. The Court also found that a sentence of IPP imposed when the judge is satisfied that the defendant poses a significant risk of serious harm to the public is wholly compatible with both article 3 and article 5(1)(a) of the European Convention.

In R v Johnson [2006] EWCA Crim 2486, the Court of Appeal following the judgement in Lang, held that the sentence of imprisonment for public protection was concerned with future risk and the future protection of the public, and not with punishing the present offending. The court emphasised that within the concept of "significant risk"  there is a measure of flexibility which allows a judge to conclude that a somewhat lower probability of particularly grave harm may be significant and conversely that a somewhat greater probability of less grave harm may not be. Johnson was followed in R v MJ [2012] EWCA Crim 132 which emphasised that on the issue of public safety, the decision made at the sentencing hearing is required to address the future.

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Serious Harm

"Serious harm" means death or serious personal injury, whether physical or psychological section 224 (3) CJA 2003. In Lang, the Court of Appeal indicated that previous authorities would continue to be relevant in this regard.

Where offences are serious specified offences, the fact that they have been deemed to be serious offences for Schedule 15 purposes does not mean that there is automatically a risk of serious harm. For example, an offence of robbery may give rise to serious harm or it may not, depending on the circumstances. The carrying of a lethal weapon such as a real firearm or a knife (as in Lang) may well support an assessment that there is a significant risk of serious harm, but where threats are used but without actual violence, and there is no evidence of serious psychological harm, then such circumstances may not support such an assessment: R v Lang.

In R v Owen (above) reminded sentencers that some risk of serious harm is not enough. The test is the existence of a significant risk, enough to warrant a sentence which may never end.

In (non-serious) specified offences there will be few cases where the significant risk of serious harm will be present. Repetitive sexual or violent offending at low level without serious harm is not dangerous: R v Lang; R v Terrell [2008] Cr App R (S) 49; R v Hicks [2009] EWCA Crim 733. However, the definition of serious harm is case specific: minor offences of gradually escalating seriousness might be significant in the assessment of future risk: R v Johnson.

In Johnson the Court of Appeal also held that it did not automatically follow from the absence of actual harm caused by an offender to date, that the risk that he would cause serious harm in the future was negligible. The Court held that the case of R v Shaffi [2006] 2 Cr. App. R. (S) 92 was not authority for the proposition that as a matter of law, offences which did not result in harm to the victim should be treated as irrelevant in the assessment of dangerousness.

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Assessing Dangerousness

Section 229(2) CJA 2003 (as amended by section 17 CJIA 2008) sets out what matters the court can take into account in assessing whether an offender is dangerous.

Section 229(2):

"The court in making the assessment referred to in subsection (1)(b) -
a) must take into account all such information as is available to it about the nature and circumstances of the offence,
b) may take into account all such information as is available to it about the nature and circumstances of any other offences of which the offender has been convicted by a court anywhere in the world,
c) may take into account any information which is before it about any pattern of behaviour of which any of the offences mentioned in paragraph (a) or (aa) forms part, and
d) may take into account any information about the offender which is before it.
e) Section 229(2A):

The reference in subsection 2(aa) to conviction by a court includes reference to
a) a finding of guilt in service disciplinary proceedings, and
b) a conviction of a service offence within the meaning of the Armed Forces Act 2006 ("conviction" here including anything that under section 376(1) and (2) of that Act is to be treated as a conviction)."

Since 14 July 2008, the existence of previous convictions for specified offences no longer attracts a presumption of dangerousness. However, it is still essential that information about previous convictions is obtained and presented to the court. Previous convictions for specified offences are almost certainly more likely to give rise to a finding of dangerousness than are previous convictions for non-specified offences.

Note that the absence of previous convictions is not decisive of the assessment of dangerousness. In R v Johnson, the Court of Appeal commented that:

"...it was not a prerequisite of a finding of dangerousness that the offender should be an individual with previous convictions. A man of good character might properly qualify for a sentence of imprisonment for public protection."

Johnson was considered in R v Pedley [2010] 1 Cr App R (S) 24 CA where the court emphasised that there was a measure of flexibility within the concept of "significant risk".

In R v Considine; R v Davis [2008] 1 WLR 414 CA it was said that the crucial word in section 229 is "information", which is neither restricted to "evidence", nor limited to the offender's previous convictions or a pattern of behaviour established by them. However it is inappropariate to embark on a Newton hearing to decide whether or not the defendant had committed a discrete, but similar, offence to the one before the court, solely for the purpose of making an assessment of dangerousness.

Specified offences committed before the implementation of the dangerous offender provisions could be relevant in the overall assessment of dangerousness in the case of other linked offences committed after the implementation date: R v Robert Michael S and others [2007] EWCA Crim 1622 [also reported as R v Harries and others].

The court will need to know, not only the facts of the case for which the offender is being sentenced, but also the facts of all the previous convictions if they are relevant to the assessment of dangerousness. This information should be provided by the police in the case file on Form MG 16 for offenders charged with specified offences, and should be requested if not provided. In the Crown Court the antecedents should also set out the circumstances of the last 3 similar convictions (Consolidated Criminal Practice Direction Part III.27.3).

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"Pattern of behaviour" and "information about the offender"

This is not defined in the Act and will be for the court to assess in each case. It could include such information as any previous acquittals, complaints not prosecuted, and police intelligence about behaviour. This information should be provided by the police on Form MG 16 with the case file, and if not provided, should be requested. Acquittals or discontinuances since 2002 are now recorded on PNC and should be provided on Form MG 16.

R v Considine and Davis [2008] 1 WLR 414 CA: When assessing dangerousness, the sentencing court can take account of an alleged history of violence which is not substantiated or proved by previous convictions.

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Sentences Available for Dangerous Offenders

General

Following a determination that an offender is dangerous, the court may choose one of the following types of sentence:

1) imprisonment for life (or detention/custody for life where offender under 21); or
2) an indeterminate sentence of imprisonment (or detention for public protection if under 21); or
3) an extended sentence of imprisonment or detention; or
4) any other sentence that the court has power to impose.

The Court of Appeal gave guidance on the new approach to IPPs in light of the amendments made by the Criminal Justice and Immigration Act 2008 in Attorney-General's Reference No. 55 of 2008 (C and others)  [2009] 2 Cr App r (S) 22. In determining how the courts should decide which sentence ought to be imposed if the necessary criteria had been established, the Court of Appeal considered imprisonment for public protection (IPP) to be one of the most draconian sentences available. The court advised that, if an overall sentencing package' of alternative and cumulative methods provides appropriate protection, IPP should not be imposed.

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Sentences Available for Adult Offenders

Life Imprisonment

Where an adult offender is convicted of an offence that carries a maximum punishment of life imprisonment, and is assessed as dangerous by the court, he or she must be sentenced to life imprisonment, unless a life sentence cannot be justified by the seriousness of the offence (section 225(2) CJA 2003).

Indeterminate imprisonment for public protection

Where an adult offender is convicted of a serious specified offence, i.e. an offence which carries a maximum punishment of 10 years or more, or one that is punishable with life imprisonment but a life sentence was not justified by the seriousness of the offence, and he is assessed as dangerous by the court, he may be sentenced to an indeterminate sentence of imprisonment for public protection, provided the conditions in subsections 3A or 3B of section 225 are met;

The conditions

Section 225(3A): at the time the present offence had been committed, the offender had already been convicted previously of an offence specified in Schedule 15A CJA 2003 (inserted by Schedule 5 CJIA 2008); or

Section 225(3B): the "notional minimum term" is at least 2 years, i.e. that part of the sentence that must actually be served in custody before being considered by the Parole Board for release on licence.

Offenders sentenced to an indeterminate sentence of imprisonment for public protection, or detention for public protection will be released only when the Parole Board says it is safe to do so. Release is never automatic. The Court will set a minimum term that will be served in full before the Parole Board can consider whether it is safe to release the offender. The minimum term should be the period that would have been served in custody if a determinate sentence had been imposed according to the seriousness of the offence.

After release, the offender remains on licence for at least 10 years (section 25(4) Criminal Justice Act 2003 and Part 2 Chapter 2, Crime (Sentences) Act 1997).

Fixing the minimum term within an indeterminate sentence

This should be approached in the same way as for discretionary and automatic life sentences before the Criminal Justice Act 2003.

In most cases, this requires the court:

  • to assess the notional determinate sentence that would have been imposed if the indeterminate sentence had not been imposed, taking care:
    i) to ensure that the appropriate reduction for a guilty plea is allowed,
    ii) that this sentence is based on the seriousness of the offence and does not incorporate the element of risk which is already covered by the indeterminate sentence;
  • to identify half that term (which would have been the term actually spent in custody before release on licence in the case of a determinate sentence);
  • to deduct from that term any time spent in custody on remand (subject to the usual discretion to direct that time should not count).

There will be exceptional cases where more than half the term may be appropriate: R v Szczerba [2002] Cr. App. R. (S.) 387.

Fixing the minimum term for an indeterminate sentence when the offender is already serving a sentence of imprisonment

The Court of Appeal considered this issue in the case of R v Ashes [2007] EWCA Crim 1848. It held that the court should try and impose a term for the sentence for public protection which is concurrent with (and not consecutive to) the existing sentence but which also takes account of:

a) the period still remaining to be served under the existing determinate term (the period still to be served but halved to take account of the automatic release provisions);
b) the appropriate period (additional to the existing determinate sentence) as the sentence for the offence in respect of which the court intended to impose a term of imprisonment for public protection, which should then be halved; and
c) the need to ensure that the total of sentences imposed did not offend the principle of totality.

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Extended Sentence

An adult offender who is convicted of any specified offence (including a serious specified offence), whom the court assesses as dangerous, may be sentenced to an extended sentence of imprisonment for public protection provided the conditions in subsections 2A or 2B of section 227 (as amended by section 15 CJIA 2008) are met.

The Conditions

Section 227(2A): at the time the present offence had been committed, had already been convicted previously of an offence specified in Schedule 15A CJA 2003 (inserted by Schedule 5 CJIA 2008); or

Section 227(2B): the "appropriate custodial term" is at least 4 years, i.e. that part of the sentence that must be served in custody before being released must be 2 years, as the offender will be eligible for automatic release at the half way point.

What is an extended sentence?

An extended sentence is a determinate sentence comprising an appropriate custodial term plus an extended period of licence. The appropriate custodial term is the determinate period of imprisonment that would have been imposed if the offender was not dangerous, but it must be for a minimum period of 12 months. It is defined as "the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it": section 153(2) CJA 2003.

Despite the requirement of the condition in section 227(2B) that the appropriate custodial term must be 4 years (i.e. 2 years actually in custody), it is possible in some circumstances that that an offender may receive an extended sentence with an appropriate custodial term of less than 4 years if he satisfies the previous conviction criteria in section 227(2A).

The extension period is "of such length as the court considers necessary for the purpose of protecting members of the public from serious harm": section 227(2) CJA 2003. It may be up to 5 years for a specified violent offence and 8 years for a specified sexual offences: section 227(4) CJA 2003. The sum of the custodial term and the extended licence must not exceed the maximum penalty for the offence: section 227(5) CJA 2003.

Release from custody

Release from the custodial element of an extended sentence is automatic at the half way point of the custodial term: section 247 CJA 2003, as amended by section 25 CJIA 2008.

On release, the offender is on licence for an extended period where he will be supervised in the community, the length of which is set by the court when the sentence is imposed. As the offender is released at the halfway point of the custodial term, the period of custody that will not be served in prison is served on licence instead. The total sentence length remains unchanged. When released, the offender will be on licence until the conclusion of the whole term of the sentence i.e. the custodial term plus extension period: R v S; R v Burt [2006] 2 Cr. App. R. (S) 35 CA.

From 3 December 2012 section 124 LASPO Act 2012 introduces a new Extended Determinate Sentence(EDS). This can only be imposed where all the following conditions are met:

For adults (see new s. 226A Criminal Justice Act 2003) it can only be imposed where all the following conditions are met:

  • The defendant has been convicted of a specified offence (a sexual or violent offence listed in Schedule  15 of the Criminal Justice Act 2003) (whether the offence was committed before or after this section came into force);
  • The court considers that the defendant presents a substantial risk of causing serious harm through re-offending by committing a further specified offence. The "significant risk" test is the same as the test for IPP therefore they must meet the dangerousness threshold,
  • The court is not required to impose a sentence of imprisonment for life, and
  • Condition A or B is met

Condition A: at the time the offence was committed the defendant had been convicted of a sexual or violent offence listed in Schedule 15B of the CJA 2003 (schedule 15A is redundant);

Condition B: that the current offence merits a determinate sentence of at least 4 years

The EDS consists of a custodial term, which, should reflect the seriousness of the offending; followed by an extended licence period which, is determined by the court on the basis of what the court considers "necessary for the purpose of protecting members of the public from serious harm." However, the extended licence period is limited to up to 5 years for a violent offence, and 8 years for a sexual offence.

The sum of the custodial term and the extended licence must not exceed the maximum penalty for the offence.

Under the pre 3 December 2012 arrangements release from an extended sentence under the CJA 2003 is, as stated above, at the half way point of the custodial term. For the new EDS release will normally be at the two thirds points of the custodial term, unless the custodial term of the extended sentence is 10 years or more, or the sentence is imposed for an offence listed in schedule 15B, when the case must be referred at the two thirds point to the Parole Board, who will consider whether it is no longer necessary for the protection of the public for the defendant to be detained.

Any Other Sentence that the Court has power to impose

The addition of this fourth category is a reminder that even if the court finds that the offender is dangerous, the imposition of a sentence of imprisonment for public protection is no longer mandatory. The key issue is the nature and extent of the risk posed by the offender, and the most appropriate way of addressing that risk and providing public protection.

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Consecutive and concurrent sentences

In the case of R v O'Brien and others [2006] EWCA Crim 1741, (followed in R v O'Halloran [2006] EWCA 3148) the Court of Appeal considered whether one sentence of imprisonment for public protection could be ordered to run consecutively to another sentence of imprisonment for public protection. The Court determined that while not unlawful, it is undesirable to impose consecutive indeterminate sentences or an indeterminate sentence consecutive to another period of imprisonment.

Where a court imposes an indeterminate sentence and wants the period before which the offender will become eligible for parole to be consecutive to the balance of an existing sentence or to follow the period of return to prison under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 (where available), the court should increase the notional determinate term to reflect that balance or period; see R v Ashes (above).

Where a court imposes concurrent indeterminate sentences for two or more offences with concurrent minimum terms and, in the absence of those indeterminate sentences, would have passed consecutive determinate sentences, the totality of the offending should be reflected by either:

a) imposing the same notional term for all offences; or
b) taking the most serious offence and imposing a notional term that reflects the totality of the offending.

In R v C and others [2007] EWCA Crim 680, after reviewing the relevant authorities, the Court summarised the position as follows:

1) there is nothing unlawful about the imposition of concurrent or consecutive extended sentences under the 2003 Act or the earlier regime. This also applies to concurrent or consecutive sentences of life imprisonment or imprisonment for public protection under Chapter 5 of the 2003 Act: see R v O'Brien and others (above). The Court of Appeal will not interfere where extended or indeterminate sentences were justified, unless the practical result is manifestly excessive or gives rise to real problems of administration;
2) nonetheless, judges should try to avoid consecutive sentences. In appropriate cases, the custodial term or minimum period within concurrent sentences should be adjusted to reflect the overall criminality where that is possible within other sentencing constraints;
3) if consecutive sentences are considered appropriate or necessary, and if one or more of those sentences is a determinate sentence, the determinate sentence(s) should be imposed first and the extended sentence(s) expressed to be consecutive;
4) in shaping the overall sentence, judges should remember that there is no obligation for the sentence to be expressed in historical date order. There is nothing wrong with stating that the sentence for the first offence in time should be served consecutively to a sentence imposed for a later offence.

It is argued that R v Hills [2009] 1 Cr App R (S) 75 is authority for the proposition that a judge may direct that a determinate sentence should commence on the anticipated release date from an extended sentence.

A combination of serious specified offences and specified offences

Where a court has before it a specified, but not serious, offence at the same time as a serious offence which would attract a sentence of imprisonment for public protection, it should:

c) impose a sentence of imprisonment for public protection for the serious offence; and
d) impose a concurrent extended sentence for the specified non-serious offence (see R v Lang)

The court is entitled to take the circumstances of the specified non-serious offence into account when fixing the notional determinate term for the sentence of imprisonment for public protection. R v O'Halloran [2006] EWCA Crim 3148.

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Sentences available for Young Offenders

General

The Dangerous Offender provisions also apply to those aged 17 and under. The principal difference between adults and youths is that in the case of a youth, the statutory "exception" based on having a previous conviction for an offence listed in Schedule 15A does not apply. Therefore, if the offence does not merit a custodial period of at least 2 years, even if there are convictions for Schedule 15A offences, the young offender may not be sentenced, if found to be dangerous, to either an indeterminate sentence or an extended sentence. Where the youth is charged with a "specified offence" as defined in section  224 Criminal Justice Act 2003, he may be sent (not committed) to the Crown Court for trial if it appears to the magistrates that if he is convicted, the criteria for imposing a sentence of indeterminate detention for public protection (section 226(3)) or an extended sentence (section 228(2)) would be met - section 51A (2) and (3) (d) Crime and Disorder Act 1998.

The Youth Court cannot impose a term of detention for indeterminate length, or an extended sentence of detention. Where on summary trial of an information a youth is convicted of the offence and it appears to the court that the criteria for the imposition of a sentence of detention for public protection, or a sentence of extended detention is met, the court must commit the offender to the Crown Court for sentence - section 5A (1) Powers of Criminal Courts (Sentencing) Act 2000.

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Detention for Life

If an offender aged under 18 is convicted of a serious specified offence for which an adult can be sentenced to life imprisonment (section 91 Powers of Criminal Courts (Sentencing) Act 2000), and he is dangerous in the opinion of the court (see Assessing Dangerousness - above), and the seriousness of the offence, or of the offence and one or more offences associated with it justifies a sentence of detention for life, the court must impose a sentence of custody for life (section 226(2) CJA 2003).

Indeterminate Detention for Public Protection for Public Protection

Where an offender aged under 18 is convicted of a serious specified offence not carrying a maximum life sentence, or one that is punishable with life, but life was not justified by the seriousness of the offence, and he is dangerous in the opinion of the court, he may be sentenced to an indeterminate sentence of detention in a young offenders institution for public protection if the notional minimum term is at least 2 years - (section 226(3) CJA 2003, as amended by section 14 CJIA 2008).

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Extended Sentence of Detention

A youth offender who is convicted of any specified offence, and who the court considers is dangerous, may be sentenced to an extended sentence of detention in a young offenders institution (unless the offence is a serious specified offence for which it must impose life under section 226(2) - section 228 CJA 2003 as amended by section 16 CJIA 2008), provided that the appropriate custodial term would be at least 4 years i.e. that part of the sentence that must be served in custody before release on licence must be 2 years, as the offender will be eligible for release at the half way point.

Any Other Sentence that the Court has power to impose

As with an adult, a court is not required to impose indeterminate detention or extended detention even where the criteria are met - the court may impose any sentence it has the power to impose.

See also generally: Youth Offenders (Dangerousness) elsewhere in Legal Guidance.

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Dangerous Offenders - the Role of the Prosecutor

At the start of proceedings

It is very important that the dangerous offender provisions are considered at an early stage. Prosecutors advising on charging following allegations of sex or violence including terrorist-related violence will need to identify those cases to which the provisions could apply. They must then consider their implications upon the case, as it could influence the choice of charge. This is particularly important in the case of Youth Offenders. From the outset the case file must contain the antecedent details relevant to the assessment of dangerousness and to any pattern of behaviour. If details are lacking then prosecutors should ask the Police to obtain them straight away.

Offences to be taken into consideration

Prosecutors should give careful consideration to achieving the correct balance between the offences to be charged and TICs. This is particularly important where it is proposed to TIC a specified offence but none of the offences for which the defendant falls to be sentenced is a specified offence. In such cases, the defendant would escape the possibility of a public protection sentence being imposed, unless the TIC offence has been charged as a substantive offence.

Where dangerousness is an issue at sentencing, both section 229(2) and (3) allow the court to take account of "any information which is before it about any pattern of behaviour of which the offence forms part" and "any information about the offender which is before it". In R v Lavery (Times 20 October 2008) the Court of Appeal held that it was clear from section 229 CJA 2003 that the court was entitled to take account of offences to be taken into consideration when assessing whether there was a significant risk under sections 225 & 226 CJA 2003.

Refer to the Prosecution Team Guidance - Offences Taken into Consideration   elsewhere within Legal Guidance.

At Mode of Trial/Allocation

Where a not guilty plea is indicated, mode of trial should be determined in the usual way. Considerations of dangerousness are not relevant at this stage. Until the provisions of paragraph 5 of schedule 3 of the Criminal Justice Act 2003 come into force (on a date to be appointed) there should be no reference to previous convictions. The dangerous offender provisions relate to sentencing, not to guilt or innocence, and are relevant to the nature of the offender not to the nature of the allegations. Just as an offender can be committed for sentence after trial when the magistrates see his previous convictions and conclude that their powers are insufficient, an offender charged with a specified offence can be convicted in the magistrates' court if the case is otherwise suitable for summary trial, and thereafter can be committed for sentence if the court is satisfied that he is dangerous.

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Determining Venue - Youth Offenders

The procedure to be adopted for determining venue for youth offenders charged with specified offences is set out in the CPS Policy on Youth Offenders

There will be few cases in which it will be appropriate to exercise the power to send a youth for trial under section 51A (3) (d) Crime and Disorder Act 1998. It should only be exercised where:

  • there is sufficient information, which will usually include a risk assessment in a recent pre sentence report, about the nature and circumstances of the Offender, the offence and any pattern of behaviour of which the offence forms part for the youth court to allow the court to assess the offender as dangerous; and
  • it is in the interests of justice for the youth to be tried on indictment

The Youth Court cannot impose either an indeterminate sentence for public protection or an extended sentence. A youth convicted in the youth court or magistrates court of a "specified offence" as defined in section 224 Criminal Justice Act 2003 may be committed to Crown Court for sentence if the magistrates decide that the criteria for the imposition of a sentence of indeterminate detention for public protection (section 226(3) CJA 2003) or an extended sentence (section 228(2)) appear to be met (section 3C Powers of Criminal Courts (Sentencing) Act 2000).

For further details, refer to Trial venue - youth offenders elsewhere in Legal Guidance.

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Drafting the Indictment

Where the conduct alleged clearly occurred on a date before 4 April 2005, the indictment should be drafted accordingly. Similarly, if the conduct alleged clearly occurred after 4 April 2005, the indictment should be drafted to reflect that fact.

If the evidence suggests that conduct alleged spanned the implementation date, but it is not certain exactly when it happened, a count that "straddles" the 4 April 2005 might be inevitable. It would then be a matter for the court to determine, having heard the evidence, whether the conduct took place before or after that date, or if it continued over that date, and accordingly, whether the dangerous offender provisions come into play. For guidance on the right approach for the court to adopt, see: R v Robert Michael S and others [2007] EWCA Crim 1622, [also reported as R v Harries and others].

Plea and Sentence Document (PSD)

A PSD is not required in every case, but should be provided in any case, whether before the Crown Court or the Magistrates' Court, where such a document is likely to assist the court because the issues are complex or unfamiliar.

Where a PSD is to be provided in cases involving offenders who may be dangerous, prosecutors must identify each charge which may attract a finding of dangerous - i.e. whether it is a specified or a serious offence. In addition, prosecutors will need to identify whether, in their view, the charge is one to which the exceptions to the imposition of an IPP may apply - i.e. if the potential custodial sentence will result in actual custody for 2 years, or whether there has been a previous conviction for an offence listed in Schedule 15A.

See Sentencing - Overview elsewhere in Legal Guidance.

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Sentence Indication - R v Goodyear

In R v Kulah [2007] EWCA Crim 1701, the Court of Appeal (Criminal Division) made the following observations about the relationship between the "dangerous offender" provisions of the Criminal Justice Act 2003 and the procedure in cases where a Goodyear indication might be sought:

  • As a matter of general principle, the guidance set out in Goodyear holds good, notwithstanding the introduction of the dangerous offender provisions of the Criminal Justice Act 2003;
  • At the point (before plea) when a sentence indication would be sought, it would often be the case that the judge would not be in possession of the information necessary to enable him/her to make the assessment of risk required by sections 225, 226, 227 or 228 of the Criminal Justice Act 2003;
  • As Goodyear makes clear, the judge is under no obligation to give an indication, and has an unfettered right in this regard;
  • If the judge decides to give an indication where an assessment of future risk remains to be made, he should make the following matters clear:

a) The offence (or one or more of them) is a specified offence listed in Schedule 15, Criminal Justice Act 2003, bringing into operation the "dangerous offender" provisions contained in Part 12 Chapter 5 of that Act;
b) The information and materials necessary to undertake the assessment of future risk which is required by those provisions are not available and that the assessment remains to be conducted;
c) If the defendant is later assessed as "dangerous", the sentences mandated by the provisions - an indeterminate or extended sentence - will be imposed;
d) If the defendant is not later assessed as "dangerous", the indication relates in the ordinary way to the maximum determinate sentence which will be imposed;
e) If the offender is later assessed as "dangerous", the indication can only relate to the notional determinate term which will be used in the calculation of the minimum specified period the offender would have to serve before he may apply to the Parole Board to direct his release; or, in a case where an extended sentence is the only lawful option, it will relate to the appropriate custodial term within the extended sentence (that is, the indication does not encompass the length of any extension period during which the offender will be on licence following his release);
f) If an indeterminate sentence.

The Court pointed out the obligation on the prosecution to draw to the attention of the judge any minimum or mandatory sentencing requirement. That obligation includes a duty to inform the judge that the offence charged is a specified offence and of the requirement to undertake the risk assessment required by the relevant section of the 2003 Act.

The approach in Kuhal was followed in R v Seddon [2008] 2 Cr App R (S) 30, CA. There the Court said that if a Goodyear indication was given without following the procedure recommended in Kuhal, the judge is not bound by the indication in the event of a guilty plea and a subsequent finding of dangerousness.

For further guidance on the role of the prosecutor in advance sentence indication (R v Goodyear), see Judicial Independence and Out of Court Dicussions elsewhere in Legal Guidance.

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Accepting Guilty Pleas

Where prosecutors are considering accepting pleas to some but not all of the offences charged, or to the same charges but on a less serious factual basis, they should give careful consideration to how the decision is likely to impact upon the application of the dangerous offender provisions. In particular, it may affect the risk assessment undertaken by the probation service and supplied to the court for the purposes of assessing dangerousness.

When accepting pleas, prosecutors should ensure that the counts to be sentenced give the judge power to impose an IPP: R v Andrew Cochrane [2012] EWCA Crim 244.

For more information about the role of the prosecutor in accepting pleas, refer to Sentencing - Overview elsewhere in Legal Guidance.

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Following Conviction or a Guilty Plea

In cases where the dangerousness provisions may apply, prosecuting advocates, including associate prosecutors, should bring to the court's attention the fact that the provisions apply, and describe those that are relevant to the particular circumstances. Having given the facts of the case and the antecedents, the advocate should draw the attention of the court to relevant convictions. The court will need the facts of the previous convictions, plus any other information available that may indicate a pattern of behaviour suggesting dangerousness.

The prosecutor will need to be in a position to address the court on the issue of whether the case may fall within one of the exceptions to the imposition of a sentence of IPP. This will include consideration of:

  • whether any previous conviction is an offence listed in Schedule 15 A;
  • the custodial element of any IPP sentence that the court might impose based on the facts of the case and any relevant sentencing guidelines or guideline cases, and if that might be less than 2 years (thus triggering the exception).

The prosecutor must also inform the court of the details of any Victim Personal Statement, and should be able to address the court on requests for compensation or other ancillary orders.

The role of the prosecutor in the sentencing exercise is considered elsewhere in this guidance. See Sentencing - Ancillary Orders and Legal Guidance, Sentencing - Overview elsewhere in Legal Guidance.

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The Role of the Probation Service

In assessing dangerousness the court will need the benefit of a pre-sentence report. Probation officer, in turn, will need the CPS to provide them with not only the usual PSR information package, but also with the facts of previous relevant convictions and the information relevant to a pattern of behaviour. Such information should be provided by the police with the case file on Form MG16, and should normally be provided to the Probation Service with the PSR information package.

When accepting pleas to lesser offences or on a less serious basis, prosecutors should notify the probation service so that the new basis of sentencing can be factored in to the risk assessment by the probation officer.

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Appeals

Appeals by the defendant

A defendant may appeal against his sentence, including whether the assessment of dangerousness was correct. For general guidance on Appeals to the Court of Appeal see  Appeals to the Court of Appeal elsewhere in Legal Guidance.

Appeals by the prosecution

The only avenue for the prosecution to appeal against sentence, and therefore against the decision as to dangerousness, is by way of a reference by the Attorney General on the basis that the sentence was unduly lenient. The power of referral is limited to qualifying offences only.

For qualifying offences, the Attorney General may refer a case to the Court of Appeal in two circumstances where dangerous offenders are concerned. These are:

(a) when the court has failed to impose a public protection sentence
(b) where the minimum term set is unduly lenient.

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Failure to impose a public protection sentence

Following amendment of section 36 of the 2003 Act, section 36(b)(iii) allows a reference in any cases where the judge failed to impose a sentence required by any of sections 225 to 228 of the Act. This section 36(b)(iii) applies where the sentencing court failed to identify the case as one to which the dangerous offender provisions apply; it is also relevant where the court failed to find the defendant dangerous where the prosecution thinks the court should have done. However, the Court of Appeal is likely to intervene only if the sentencing court's decision that the defendant was not dangerous was "Wednesbury" unreasonable.

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Unduly lenient minimum terms

A minimum term is set by the court when it imposes a life sentence for public protection and when it imposes an indeterminate sentence for public protection. These minimum terms are sentences that may be referred to the Court of Appeal by the Attorney General under section 36 Criminal Justice Act 1988 if they are unduly lenient (R v Dalton [1995] 2 CR. App. R. 340, CA.).

When deciding whether a minimum term is unduly lenient, prosecutors should look at how it would compare with a determinate sentence made in similar circumstances. The first consideration when setting a minimum term should be the custodial term that would have been imposed if the offender were not dangerous, based on the seriousness of the offence. But, then the court will need to take account of the fact that if the defendant had received a standard custodial sentence, then he would serve half of it in custody before being released on supervised licence. This means that the minimum term should also be reduced by about a half to reflect this. Old authorities on discretionary life sentences will still have some relevance in this regard.

For qualifying offences and detailed guidance on unduly lenient sentence appeals (ULS) see Unduly Lenient Sentences elsewhere in Legal Guidance.

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