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Home » Legal Resources » Legal Guidance » S to U » Sentencing and Dangerous Offenders

Sentencing - Dangerous Offenders

Principle

The concept of a "dangerous offender" was introduced in Chapter 5 Part 12 Criminal Justice Act 2003. These provisions came into effect on 4 April 2005. The provisions introduced indeterminate sentences of imprisonment for public protection and extended sentences of imprisonment for dangerous sexual or violent offenders, collectively known as sentences of imprisonment for public protection, or IPP.

To sentence an offender to imprisonment for public protection, the court must be satisfied that on or after 4 April 2005;

  • 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 and violent offences).

Where a specified offence is punishable in the case of an adult with at least 10 years imprisonment, it is a "serious offence".

Between 4 April 2005 and 14 July 2008, once the criteria were established, the imposition of a sentence of IPP was mandatory.

The provisions of Chapter 5 Part 12 Criminal Justice Act 2003 were amended by sections 13 to 18 of the Criminal Justice and Immigration Act 2008 which make changes to the original legislation relating to public protection sentences for both adults and juveniles. These changes come in to effect on 14 July 2008.

The changes introduce further criteria to be satisfied before a sentence of IPP can be imposed.

The changes are:

  • The imposition of a seriousness threshold which the immediate offence being sentenced must reach, before a public protection sentence can be imposed. This will apply 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 two years in prison.)
  • An exception to the seriousness threshold where offenders already have previous convictions for certain very serious offences. This exception only applies to adult offenders. The list of offences that "qualify" the offender is based, with some updating, 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 also includes a number of other sexual offences of particular seriousness which were introduced in the Sexual Offences Act 2003. The list is at Schedule 15A CJA 2003 (as amended by the CJIA 2008)
  • The removal of the rebuttable presumption of risk in the case of adult offenders i.e. of the original statutory requirement for the court to conclude that the offender is dangerous (unless unreasonable to do so in the circumstances) where there exists a previous conviction for a violent or sexual crime. From 14 July 2008, this presumption no longer applies.
  • Allowing courts greater discretion so that even where all the conditions for an IPP are met (offender has committed a serious specified offence - sexual/violent offence which carries a penalty of 10 years or more; the risk test is met; the seriousness threshold or Schedule 15A criteria are met) the court may impose an IPP, extended sentence or other sentence as it finds most appropriate in the case. Where the conditions for an extended sentence (but not an IPP) are met (offender has committed a specified offence - sexual/violent offence which carries a penalty of less than 10 years; the risk test is met; the seriousness threshold or Schedule 15A criteria are met) the court may impose an extended sentence or any other sentence. That is to say, from 14 July 2008, the public protection sentences are no longer mandatory 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 will be automatically released on licence halfway through the custodial part, rather than halfway release being at the Parole Board's discretion as currently.

These changes apply to all offenders who fall to be sentenced on or after the date of commencement - 14 July 2008 - (and whose offence was committed on or after 4 April 2005, the date on which the 2003 Act provisions came into force). The changes will not be retrospective so there is no impact on prisoners who are already serving a public protection sentence.

These provisions were commenced by the Criminal Justice and Immigration Act 2008 (Commencement No. 2 and Transitional and Saving Provisions) Order 2008.

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Guidance

Summary

With effect form 14 July 2008, to be sentenced as a dangerous offender, the court must be satisfied:

  • that the offender has committed a specified offence;(see below Dangerous Offenders - the categories of offence) and;
  • that the offence crosses the "seriousness threshold"; or;
  • the case does not cross the "seriousness threshold", but it the offender has previously been convicted of an offence listed in Schedule 15A CJA 2003; 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.(see below Dangerous Offenders -The Assessment of Dangerousness).

Once the criteria are met, the court may impose either:

  • a sentence of life imprisonment (or custody for life if the offender is under 21), or;

  • indeterminate sentence of imprisonment for public protection (detention in a young offenders institution for public protection if under 21), (but only if the offence is a serious offence) or;

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

In other words, the imposition of a sentence of imprisonment for public protection is discretionary, even if the court finds the other criteria have been met.

(See below Dangerous Offenders - The sentences).

The specified offence must have been committed after the commencement of the relevant provisions, which is 4 April 2005.

Dangerous Offenders - the categories of offence

The provisions apply to two categories of offence:
1) specified offences of sex or violence and
2) serious offences of sex or violence.

Specified Offences are defined in section 224(1) and listed in Schedule 15 to the Criminal Justice Act 2003. Part One contains specified violent offences, and Part Two contains specified sexual offences. 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.

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

Dangerous Offenders - the assessment of 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".

(s. 225(1)(b), s225(2)(b), s 226 (1)(b), s 226 (2)(b), s227 (1)(b), s 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 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] EWCA Crim 840, the Court confirmed the indication given in Lang [2005] EWCA Crim 2864 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.

Serious Harm

"Serious harm" means death or serious personal injury, whether physical or psychological S. 224 (3) CJA 2003. In R v Lang, the Court of Appeal indicated that previous authorities would 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 (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.

Minor offences of gradually escalating seriousness might be significant in the assessment of future risk - R v Johnson

Making the assessment

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.

s.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,

(aa) 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,

(b) 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

(c) may take into account any information about the offender which is before it.

s.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)."

Although since 14 July 2008, the existence of previous convictions for specified offences no longer attracts a presumption of dangerousness, 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.

Case law on dangerousness pre -14 July 2008 will still be relevant in many instances. For example, 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."

The Court further observed that minor offences of gradually escalating seriousness might be significant in the assessment of future risk.

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.

"Specified" offences committed before the implementation of the dangerous offender provisions would 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.

"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 MG16 with the case file, and if not provided, should be requested. Acquittals or discontinuances recorded since 2002 should now be recorded on PNC and provided on Form MG16.

In R v Considine and Davis [2007] EWCA Crim 1166, the Court of Appeal considered the assessment of dangerousness, and in particular whether the sentencing court was restricted to considering only admissible evidence when making such an assessment. It concluded that the court was not so restricted and that it could take account of, as in the instant case, an alleged history of violence not marked by previous convictions. The court referred to the wording of section 229(3) of the Act and drew attention to the use of the word "information" and contrasted the use of the word "evidence" elsewhere in the statute. The court was of the opinion that when evidence in the strict legal sense was meant, then the word "evidence" was used. Accordingly, it concluded that, as a matter of statutory construction, relevant information bearing on the assessment of dangerousness may take the form of material adverse to the offender which is not substantiated or proved by criminal convictions.

Dangerous Offenders - the sentences

General

The sentence that may be imposed when an offender has been found to be a dangerous offender may be:

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

In other words - 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 appropriate sentence to impose will depend upon the category of offence of which the dangerous offender has been convicted (serious, or specified) the statutory maximum available for the offence, and the age of the offender (see above - Dangerous Offenders - the categories of offence).

The sentences are available for both adult and youth offenders.

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Adult Offenders

An adult dangerous offender convicted of a serious specified offence may be sentenced either to life imprisonment, or an indeterminate sentence of imprisonment for public protection, depending on whether the serious specified offence carries a maximum penalty of life imprisonment or of 10 years or more, or an extended sentence of imprisonment for public protection, or any other sentence the court has power to impose.

An adult dangerous offender convicted of a specified offence may be sentenced to an extended sentence of imprisonment for public protection, or any other sentence the court has power to impose.

Life Imprisonment

An adult offender convicted of an offence that carries a maximum punishment of life imprisonment, and who is dangerous in the opinion of the court, and the seriousness of the offence justifies a sentence of imprisonment for life, MUST be sentenced to life imprisonment. In other words, life is compulsory if the offender is dangerous unless life cannot be justified by the seriousness of the offence (s.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 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 imprisonment for public protection, provided the conditions in subsections 3A or 3B of section 225 are met (s.225(3) CJA 2003), as amended by section 13 CJIA 2008, or to an extended sentence of imprisonment for public protection, or any other sentence that the court has power to impose.

The conditions

Section 3A makes it a requirement that the offender, 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 3B makes it a requirement that the "notional minimum term" is at least 2 years, i.e. that part of the sentence that must 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 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. (s. 225(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.

Extended Sentence

An adult offender who is convicted of a specified offence (which is not a serious offence), and who the court considers is dangerous, MAY be sentenced to an extended sentence of imprisonment for public protection provided the conditions in subsections 2A or 2B of section 227 are met- s227 CJA 2003, as amended by section 15 CJIA 2008, or any other sentence the court has power to impose.

The Conditions

Section 2A makes it a requirement that the offender, 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 2B makes it a requirement that the "appropriate custodial term" is at least 4 years, i.e. that part of the sentence that must be served in custody before being considered by the Parole Board for release on licence must be two years, as the offender will be eligible for 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" - s 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 still possible in some circumstances that that an offender may still receive an extended sentence with an appropriate custodial term of less than 4 years if he satisfies the criteria in section 227(2A).

Release from custody

Release is automatic at the half way point of the custodial term - s 247 CJA 2003, as amended by s 25 CJIA 2008.

On release, the offender is on licence for an extended period, 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.

The Extended Period of Licence

During the extension period, the offender is subject to a licence where he will be supervised in the community. It is "of such length as the court considers necessary for the purpose of protecting members of the public from serious harm" - s.227(2) CJA 2003.

The extension period may be up to five years for a specified violent offence and eight years for a specified sexual offences - s.227(4) CJA 2003.

The sum of the custodial term and the extended licence must not exceed the maximum penalty for the offence - s.227(5) CJA 2003.

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 - s 3 Powers of Criminal Courts (Sentencing) Act 2000 

Youth Offenders

Refer to Legal Guidance - Youth Offenders

The Dangerous Offender provisions also apply to those aged 17 and under.

Where the youth is charged with a "specified offence" as defined in section 224 Criminal Justice Act 2003, he may be sent 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 ( sec 226(3)) or an extended sentence (sec 228(2)) would be met. - sec 51A (2) and (3) (d) Crime and Disorder Act 1998.

The Youth Court cannot impose a term of imprisonment 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 - s 5A (1) Powers of Criminal Courts (Sentencing) Act 2000.

Youths and Life Sentences

If an offender aged under 18 is convicted of a serious specified offence for which an adult can be sentenced to life imprisonment (s.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 (s.226(2) CJA 2003).

Youths and Indeterminate Sentences Of Imprisonment 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- (s.226(3) CJA 2003, as amended by s 14 CJIA 2008.) He may also be sentenced to any other sentence the court has power to impose, which includes an extended sentence.

Youths and Extended Sentences

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) - s228 CJA 2003 as amended by s 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 two years, as the offender will be eligible for release at the half way point. However, the court is not required to impose such a sentence even where the criteria are met - the court may impose any sentence it has the power to impose.

The 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.

Dangerous offenders - imposing consecutive and concurrent sentences

Serious specified offences - imposing indeterminate sentences

In the case of R v O'Brien and others [2006] EWCA Crim 1741, the Court of Appeal considered whether a 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. Common sense would suggest that a sentence of life imprisonment or of imprisonment for public protection starts immediately on its imposition. In addition, making indeterminate sentences consecutive to other periods in custody makes it difficult to determine when a prisoner must be released or is eligible for parole.

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, the court should increase the notional determinate term to reflect that balance or period. See R v Haywood [2000] 2 Cr App R (S) 418. See also R v Ashes (above).

Where a court imposes concurrent indeterminate sentences for two or more offences with concurrent minimum terms and, absent 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.

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:

a) impose a sentence of imprisonment for public protection for the serious offence; and

b) 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

Specified offences - extended sentences

The provisions of the Powers of Criminal Courts (Sentencing) Act 2000 relating to extended sentences apply only to offences committed between 30 September 1998 and 4 April 2005. For offences committed after 4 April 2005, the dangerousness provisions of the Criminal Justice Act 2003 apply.

A court should generally avoid imposing consecutive extended sentences, or a determinate sentence consecutive to an extended sentence, as difficulties may arise in terms of calculating the release date and the start of the period on licence.

These problems would not appear to arise where an extended sentence is imposed consecutive to a determinate sentence. In addition, concurrent extended sentences, or an extended sentence which is concurrent with a determinate sentence, may not create particular difficulties.

However, it is sensible to avoid imposing an extended sentence concurrently with a determinate sentence which is longer than the custodial element of the extended sentence, as this may result in the extended licence period being subsumed in the longer determinate sentence. R v Brown and Butterworth [2006] EWCA Crim 1996  

The Court in R v Brown & Butterworth emphasised that its judgment was not intended to dilute the guidance issued in R v Lang.

In the case of R v Lay [2006] EWCA Crim 2924, the Court of Appeal held that the principles established in R v Brown and Butterworth(above) apply also to extended sentences imposed under section 85 Powers of Criminal Courts(Sentencing) Act 2000:

(a) An extended sentence should not be made consecutive to another extended sentence;

(b) Concurrent extended sentences are possible, although they will usually be unnecessary;

(c) An extended sentence should not be followed by a consecutive determinate sentence;

(d) It may be proper to impose a determinate sentence followed by a consecutive extended sentence, provided that due regard is had to totality;

(e) If passing an extended sentence consecutive to a determinate sentence, it should be clear on the court record that the extended sentence is to be served second.

The Court indicated that these principles could apply to sentences imposed under section 86 of the Powers of Criminal Courts (Sentencing) Act 2000 (relating to sexual offences committed before 20 September 1998).

Extended sentences - the relationship between the various sentencing statutes

In R v C and others [2007] EWCA Crim 680, the Court of Appeal considered the practical problems arising from the imposition of consecutive extended sentences under the Criminal Justice Act 2003 and its predecessor regime under the Crime and Disorder Act 1998 and the Powers of Criminal Courts (Sentencing) Act 2000 .

It emphasised that, in general, consecutive sentences should be avoided where they include extended sentences and/or imprisonment for public protection. Wherever possible, concurrent sentences should be imposed with the period in custody adjusted to reflect the overall criminality of the offender.

Crime and Disorder Act 1998 and the Powers of Criminal Courts (Sentencing) Act 2000

The Court in R v C (above) confirmed the guidance in R v Nelson [2002] 1 Cr App R (S) 134 and R v Pepper and others [2005] EWCA Crim 1181 that a court should not, as a matter of good practice, and save in exceptional circumstances, impose consecutive extended sentences or consecutive sentences of any other nature with an extended sentence. There is, however, nothing unlawful in doing so and, in some cases, it may be necessary.

Where consecutive sentences are imposed under the 1998 and 2000 Acts, the following practice should be followed:

(i) the custodial term of the extended sentence and the entirety of the term of the ordinary determinate sentence are aggregated into a single term;

(ii) if that aggregate single term is four years or more, the offender is eligible to apply for release on licence after serving one half of that single term and will be released on licence at the two thirds point in any event;

(iii) if the aggregate single term is less than four years, release is automatic after one half of the single term;

(iv) the offender remains on ordinary licence until the three quarters point;

(v) the extension period then takes effect.

Criminal Justice Act 2003

Under section 247(2) of the 2003 Act (as amended), a prisoner serving an extended sentence must be released if the prisoner has served one half of the custodial period.

In R v C (above), after reviewing the relevant authorities, the Court summarised the position as follows:

(i) 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 [2006] EWCA Crim 1741 (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;

(ii) 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;

(iii) 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;

(iv) 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.

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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 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. The case file will therefore need from the outset to 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 TICs

Prosecutors should have regard to the Prosecution Team Guidance on TICs when deciding on offences to be charged and TICd and when determining the correct balance between the charges and TICs. This is particularly important where the offence to be TICd is a specified offence but none of the offences for which the defendant is to be sentenced is a specified offence. In such cases, the defendant would escape the possibility of a public protection sentence being imposed, which would otherwise fall to be considered by the court had the offence been charged as a substantive offence.

Refer to Offences Taken into Consideration (TICs) elsewhere within Legal Guidance.

In R v Lavery  - (Times 20 October 2008) the Court of Appeal considered the correct approach to TICs in the context of the assessment of dangerousness. The Court 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.

Under both section 229(2) and (3) the court might 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.

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. There should be no reference to previous convictions and no mention of the presumption. 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.

Determining Venue - Youth Offenders

The procedure to be adopted for determining venue for youth offenders charged with specified offences should follow CPS youth policy.

All youths charged alone shall be tried summarily in the Youth Court, unless:

  • The offence is homicide; or
  • section 51A Firearms Act 1968 applies i.e. the youth is aged 16 or 17 and is charged with an offence contrary to section 5 (1) (a), (ab), (aba), (ac), (ad), (ae), (af), 5 (1)(c) or section 5(1)(A)(a) Firearms Act 1968 i.e. possession or distribution of certain prohibited weapons or ammunition or distributing a firearm disguised as another object; or
  • the magistrates decline jurisdiction under Section 24 Magistrates Court Act 1980 (Stones 1-2053) because the offence is a 'grave crime' as defined in Section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 and decide that the offender should be sentenced pursuant to the provisions of that section; or
  • the youth is charged with a "specified offence" as defined in section 224 Criminal Justice Act 2003 and he has been sent for trial as it appears to the magistrates that if he is convicted, the criteria for imposing a sentence of indeterminate detention for public protection ( sec 226(3)) or an extended sentence (sec 228(2)) would be met. (sec 51A (2) and (3) (d) Crime and Disorder Act 1998.)

The Youth specialist should consider the principles set out by Rose LJ in CPS v South East Surrey Youth Court and MG [2005] EWHC 2929 (Admin) in determining the appropriate representation to make regarding venue.

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 (s 226(3) CJA 2003) or an extended sentence (s 228(2)) appear to be met. (s 3C Powers of Criminal Courts (Sentencing) Act 2000)

Refer to Legal Guidance - Youth Offenders

Drafting the Indictment

Indictments should be drafted to take account of the implementation date of the dangerous offender provisions (4 April 2005)

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.

In the case of R v Robert Michael S, and others [2007] EWCA Crim 1622, [also reported as R v Harries and others] the Court of Appeal gave guidance on the approach to be adopted by the sentencing court when dealing with offenders whose offending behaviour "straddled" the implementation date of 4 April 2005.

Of particular importance to the CPS is the need to draft indictments that recognise the importance of the implementation date and the differing sentencing regimes that might apply. For more detail see Legal Guidance - Drafting the Indictment

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 is mandated by the provisions, the actual amount of time the offender will spend in custody is not within the control of the sentencing judge, only its minimum.

The Court pointed out the obligation on the prosecution, imposed in Goodyear, 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 Criminal Justice Act.

Plea and Sentence Document (PSD)

Prosecutors are required to complete a PSD in all cases before the Crown Court and in some complex cases in the magistrates' court. This requirement was introduced in an Addendum to the Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise [2005] in June 2007. See Legal Guidance - Sentencing and Ancillary Orders for a copy of the Guidelines.

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.

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 consider 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.

For more information about the role of the prosecutor in accepting pleas, refer to Legal Guidance - Sentencing and Ancillary Orders and The role of the prosecutor in sentencing - Attorney General's Guidelines (Annex A).

Following Conviction or a Guilty Plea

For appropriate cases, 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 theLegal Guidance - Sentencing and Ancillary Orders.

The Role of the Probation Service

In assessing dangerousness the court will need the benefit of a pre-sentence report. Probation officers have been carefully trained to include an assessment of the risk in the report, but 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. The general principles to be followed by the Court of Appeal in appeals against sentence are set out in R v Newsome and Brown [1970] 2 QB 711. These are:

  • where the sentence was not justified by law;
  • where it was passed on the wrong factual basis;
  • where a matter was improperly taken into account;
  • or where the sentence was wrong in principle or manifestly excessive.

That there had been a wrong decision as to dangerousness could be argued under a number of these headings.

For general guidance on Appeals to the Court of Appeal, see Legal Guidance - Appeals to the Court of Appeal.

Life sentences for public protection

When the court passes a life sentence for public protection, section 82A Powers of Criminal Courts (Sentencing) Act 2000 applies, in common with other discretionary life sentences. S 82A describes how the court must make an order fixing a "tariff" or minimum term. The order setting the minimum term is a "sentence" for the purposes of the Criminal Appeal Act 1968 -R v Dalton [1995] 2 Cr. App. R 340, CA.

Appeals - Indeterminate sentences of imprisonment for public protection

These sentences are intended to operate in a similar way to life sentences for public protection, with a minimum custodial term set by the court. This term is capable of appeal in the same way as for an indeterminate life sentence.

Appeals by the prosecution

Other than by reference by the Attorney General, there is no power for the prosecution to appeal against sentence, and therefore against the decision as to dangerousness.

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

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.

a)  failure to impose a public protection sentence

Schedule 32, paragraphs 45 and 46 of the Criminal Justice Act 2003 reads as follows:

"45. The Criminal Justice Act 1988 is amended as follows:

46.    In section 36 (reviews of sentencing), in subsection (2), for the words from "erred in law" onwards there is substituted-
(a) erred in law as to his powers of sentencing; or
(b) failed to impose a sentence required by-
  (i) section 51A(2) of the Firearms Act 1968;
  (ii) section 110(2) or 111(2) of the Powers of Criminal Courts
  (Sentencing) Act 2000; or
  (iii) any of sections 225 to 228 of the Criminal Justice Act 2003."

This new section 36(b)(iii) will be relevant where the sentencing court failed to identify the case as one to which the dangerous offender provisions apply, but it will also be relevant if 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.

b)  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.

Useful links

Sentencing Guidelines Council "Dangerous Offenders - Guide for Sentencers and Practitioners", published September 2007, and revised 2008 www.sentencing-guidelines.gov.uk

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