Factual and Procedural Background
These cases concern renewed applications for leave to appeal against sentence following refusal by a single judge. The appeals arose from convictions and sentences imposed on two appellants, hereafter referred to as Appellant One and Appellant Two, in separate Crown Courts. The court heard arguments on 3rd May 2007, ultimately dismissing Appellant One's appeal and refusing Appellant Two's renewed application for leave to appeal. The background facts for each appellant involve offences of violence and possession of weapons, with detailed sentencing considerations based on prior convictions, evidence of behaviour patterns, and risk assessments.
Legal Issues Presented
- Whether the assessment of "dangerousness" for the purposes of sections 225 to 229 of the Criminal Justice Act 2003 was based on inadmissible material.
- The scope and nature of information that a court may consider when making a dangerousness assessment under section 229, particularly whether such assessment is limited to evidence of prior convictions or may include unconvicted but relevant behaviour.
- The applicability of principles from prior case law, including the extent to which unproven allegations or unadmitted offences may be considered in dangerousness assessments without infringing the defendant's right to trial by jury.
Arguments of the Parties
Appellant One's Arguments
- Challenged the weight given to evidence of past violent behaviour that had not resulted in convictions, arguing that the court should "steer clear" of attaching significant weight to unsubstantiated allegations.
- Contended that the statutory presumption of dangerousness should be displaced given the circumstances.
Appellant Two's Arguments
- Argued that much of the content of the pre-sentence report was exaggerated or boastful and should not be relied upon for assessing dangerousness.
- Contended that the sentence was effectively a life sentence disproportionate to the offence and the determinate sentence fixed.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Johnson [2006] EWCA Crim 2486 |
Clarification that the dangerousness assessment under section 229 does not require previous convictions and involves considering all information available. |
Supported the court’s broad interpretation of "information" beyond convictions in assessing dangerousness. |
| Farrar [2006] EWCA Crim 3261 |
Limits on using unproven offences in sentencing; Newton hearings not appropriate for establishing guilt in dangerousness assessments; recognition that evidence before a jury can inform dangerousness. |
Confirmed that assessment of dangerousness can include evidence admitted at trial even if not resulting in conviction, but not trial by judge alone for unadmitted offences. |
| Canavan [1997] EWCA Crim 1773 |
Principle that a defendant cannot be punished for offences not proved or admitted; sentencing must be based on offences established by verdict or admission. |
Reinforced the necessity of due process in establishing guilt, limiting use of unadmitted offences in sentencing. |
| Clarke [1996] 2 CAR (S) 351 & Bradshaw [1997] 2 CAR (S) 128 |
Addressed issues around sample counts and representative charges in sentencing. |
Referenced in Canavan to clarify sentencing principles but not elaborated in detail. |
| Lang (Referenced in judgment) |
Guidance on application of statutory presumption of dangerousness and sentencing principles under the 2003 Act. |
Applied by the court in affirming sentencing decisions and presumption of dangerousness. |
Court's Reasoning and Analysis
The court began by examining the statutory framework under sections 225 to 229 of the Criminal Justice Act 2003, focusing on the assessment of dangerousness. It emphasized the statutory language distinguishing "information" from "evidence," noting that the assessment is not confined to convictions but may include broader material relevant to the offender's behaviour and risk.
The court analyzed prior authority, particularly Johnson, which confirmed the broad scope of information admissible in dangerousness assessments, including individuals without prior convictions. Farrar was considered carefully, clarifying that while unadmitted offences cannot be used to convict or punish without due process, the court may consider evidence properly admitted at trial when assessing dangerousness.
The court rejected any interpretation that would exclude relevant bad character evidence admitted at trial or other reliable information from the dangerousness assessment. It acknowledged the need for fairness and cautioned against using procedures akin to trial by judge alone (e.g., Newton hearings) to establish guilt of unadmitted offences in this context.
The court highlighted the importance of pre-sentence reports and other assessments in providing a comprehensive and fair basis for judging dangerousness. It recognized that judges must make careful evaluations of the offender's character, behaviour patterns, and risk of harm, using all appropriate information available.
Applying these principles, the court found that the sentencing judges in both cases were justified in their assessments and use of evidence, including bad character evidence and pre-sentence reports, to conclude that the appellants posed a significant risk of serious harm.
Holding and Implications
The court DISMISSED the appeal of Appellant One and REFUSED the renewed application for leave to appeal by Appellant Two.
The direct effect is that the sentences imposed for imprisonment for public protection stand as valid and justified. The court confirmed that the statutory framework allows consideration of a broad range of information, including unconvicted but relevant behaviour, in assessing dangerousness, provided that fundamental rights to due process are respected. No new precedent was established beyond reaffirming existing principles and clarifying their application in these cases.