Guidance for those imposing sentences for public protection

COURT OF APPEAL Criminal Division Published November 2, 2006 Regina v Johnson Regina v Hamilton Regina v Lawton Attorney General’s Reference (No 64 of 2006) (Andrew Jones) Regina v Gordon Before Sir Igor Judge, President, Mr Justice Goldring and Mr Justice Owen Judgment October 20, 2006 ALTHOUGH punitive in its effect, a sentence of imprisonment for public protection did not represent punishment for past offending but was concerned with future risk and public protection.

The Court of Appeal, Criminal Division, so stated when dismissing appeals against sentences of imprisonment for public protection by Paul Anthony Johnson and Jamie Lawton, allowing an appeal by Gerald Anthony Hamilton and refusing an application for leave to appeal by Tyrone Leslie Gordon.

Mr Michael Bagley for Johnson; Ms Arlette Piercy for Hamilton; Mr Dapinderpaul Singh for Lawton; Mr Roy Brown for Jones; all three assigned by the Registrar of Criminal Appeals; Mr Jonathan Laidlaw for the Attorney-General; Gordon was not represented.

THE PRESIDENT, giving the reserved judgment of the court, said that invaluable understanding of the provisions of the Criminal Justice Act 2003 relating to offenders who might be dangerous and liable to imprisonment for public protection had been provided in R v Lang (The Times November 10, 2006; [2006] 1 WLR 2509) but their Lordships had decided that they should explain some of the issues arising from it.

Section 229 provided statutory direction on the approach to the assessment of dangerousness which should be adopted by the sentencing court. It highlighted that it was not a prerequisite to a finding of dangerousness that the offender should be an individual with previous convictions. A man of good character might properly qualify for this sentence.

Lang said that sentencers should not allow the language of section 229(3) to obscure their ultimate responsibility to make the necessary assessment. Its effect was that the question whether it was unreasonable to make the assumption of dangerousness on the basis of previous convictions for specified offences was left to the sentencer’s judgment. He was entitled to conclude, that notwithstanding the statutory assumption, the offender with previous convictions, even for specified offences, did not necessarily satisfy the requirements of dangerousness.

Their Lordships addressed a number of specific issues:

1 Just as the absence of previous convictions did not preclude a finding of dangerousness, the existence of previous convictions for specified offences did not compel such a finding. There was a presumption that it did so, which might be rebutted.

2 A pattern of minor previous offences of gradually escalating seriousness might be significant so that it was not right that unless the previous offences were specified offences they were irrelevant.

3 It did not automatically follow from the absence of actual harm caused by the offender to date that the risk that he would cause serious harm in the future was negligible.

4 Characteristics such as inadequacy, suggestibility or vulnerability of the offender might serve to mitigate the offender’s culpability but they might also serve to produce or reinforce the conclusion that the offender was dangerous.

5 If the prosecution failed to comply with the good practice of being in a position to describe the facts of previous specified offences, counsel for the defendant should be in a position to explain the circumstances, on the basis of his instructions, in which case, if the Crown was not in a position to challenge those instructions, then the court might proceed on the information it had. Failure to comply with best practice on this point should be discouraged but would not normally preclude the imposition of the sentence.

6 It was not obligatory for the sentencer to spell out all the details of the earlier specified offences but he should explain the reasoning which had led to his conclusion.

Solicitors: CPS, Headquarters.