Factual and Procedural Background
This opinion concerns two appeals heard together regarding the evidence and information that sentencing courts and the appellate court should consider when assessing dangerousness for imprisonment for public protection under the Criminal Justice Act 2003 (CJA 2003). One appellant, referred to as Appellant A, was sentenced under the original provisions in 2006 at age 17, where the judge had discretion on imposing the sentence. The other two appellants, Appellants B and C, were sentenced in 2009 under the amended provisions of the Criminal Justice Act 2008.
Appellants B and C were convicted of manslaughter following the death of a 21-year-old victim who was severely injured in an attack at a flat. They received imprisonment for public protection sentences with specified terms. Their appeals challenge the basis and length of these sentences, particularly the dangerousness findings. Appellant A pleaded guilty in 2006 to possession of a firearm with intent and unlawful wounding and was sentenced to detention for public protection with a specified minimum term. A renewed application to appeal his sentence was refused, despite evidence of significant progress in custody.
Legal Issues Presented
- What evidence or information should a sentencing court and appellate court consider when assessing dangerousness for the purpose of imprisonment for public protection under the Criminal Justice Act 2003?
- Whether the sentencing court erred in concluding that Appellants B and C were dangerous and thus justified the imposition of imprisonment for public protection.
- Whether fresh psychological assessments and evidence of progress in custody affect the original dangerousness assessments and sentences imposed.
- Whether the specified minimum terms imposed on Appellants B and C appropriately reflect the basis on which the pleas were accepted and the nature of the offences.
Arguments of the Parties
Appellants B and C's Arguments
- Appellant B initially accepted that imprisonment for public protection was not wrong in principle but appealed against the length of the minimum term.
- Appellant C argued that the judge erred in finding him dangerous and thus the sentence of imprisonment for public protection was inappropriate; he also appealed the length of the minimum term.
- Appellant B sought to rely on fresh psychological evidence from a clinical psychologist indicating a lower risk of dangerousness than assessed at sentencing.
- Both appellants contended that the judge's notional determinate term was too long and did not reflect the factual basis for the pleas.
Appellant A's Arguments
- Appellant A relied on fresh information showing significant progress made while in custody, including clinical psychologist reports and positive Parole Board decisions, arguing that he was not dangerous at the time of sentencing and the detention for public protection sentence should be quashed.
Crown's Arguments
- The Crown submitted that the original assessments of dangerousness were correct based on the facts and offending histories.
- The Crown challenged the reliability and empirical basis of the fresh psychological assessments relied upon by Appellant B.
- The Crown maintained that the sentencing courts had sufficient information and that fresh evidence did not undermine the original sentences.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Lang [2005] EWCA Crim 2864 |
Factors to consider in assessing dangerousness under CJA 2003, including offender’s history, offence circumstances, and social factors. |
Guided the court on the comprehensive approach to assessing dangerousness, emphasizing the use of all relevant information, not just convictions. |
| Johnson [2006] EWCA Crim 2486 |
Further guidance on assessing dangerousness and sentencing under CJA 2003. |
Supported careful application of dangerousness provisions and consideration of offender’s circumstances. |
| Considine and Davies [2007] EWCA Crim 1166 |
Clarification that "information" for dangerousness assessment is not limited to evidence or convictions. |
Confirmed that unsubstantiated but relevant adverse material may be considered in dangerousness assessments. |
| Roberts [2006] EWCA Crim 2915 |
Admitting fresh information on sentencing appeals without strict adherence to formal procedures. |
Permitted flexible admission of updated information affecting sentencing, including progress in custody. |
| Hughes [2009] EWCA Crim 841 |
Requirements for fresh evidence and jurisdiction on appeals against sentences involving hospital orders. |
Outlined the necessity of formal applications for fresh evidence in certain contexts but recognized flexibility elsewhere. |
| Clipston [2011] EWCA Crim 446 |
Procedure for admitting fresh evidence post-conviction. |
Supported the court’s approach to receiving further information in dangerousness assessments. |
| R v R [2009] EWCA Crim 1932 |
Consideration of progress in custody in sentence reduction. |
Confirmed that progress may justify reduction of determinate sentences but not necessarily affect dangerousness findings. |
| R v Cooper [2006] EWCA Crim 2130 |
Admission of fresh evidence on mental state and sentencing appeals. |
Allowed fresh evidence but emphasized assessment of dangerousness at the time of sentence. |
| Gisanrin [2010] EWCA Crim 504 |
Assessment of dangerousness must be based on the time of sentencing, not subsequent improvements. |
Rejected interference with sentences based solely on post-sentence progress. |
| Newman [2010] EWCA Crim 2802 |
Progress in custody does not undermine the correctness of original sentence. |
Affirmed that release decisions are for Parole Board, not appellate courts revisiting dangerousness. |
| Erskine [2009] EWCA Crim 1425 |
Use of fresh evidence in retrospective assessments of fitness to plead and diminished responsibility. |
Confirmed mental state must be assessed at the relevant time of the offence or sentence. |
| Boswell [2007] EWCA Crim 1587 |
Value of OASys assessment in dangerousness evaluation. |
Referred to the utility of OASys as a key tool in sentencing decisions. |
| R v G [2007] 2 Cr App R (S) 32 |
Sentencing guidelines for dangerous offenders and youths. |
Emphasized careful application of dangerousness provisions in sentencing. |
| R(Black) v Secretary of State for Justice [2007] EWHC 1668 (Admin) |
Risk assessment limitations and variability in expert opinions. |
Recognized risk assessment as a non-exact science with differing expert views. |
Court's Reasoning and Analysis
The court analyzed the appeals by focusing on the statutory framework under the Criminal Justice Act 2003 and relevant case law guiding the assessment of dangerousness. It emphasized that the sentencing court must consider all available information, including offence details, previous convictions, social factors, and pre-sentence reports, particularly the OASys assessment. The court acknowledged that "information" for dangerousness assessment extends beyond formal evidence or convictions, allowing consideration of unsubstantiated adverse material.
In reviewing the fresh psychological assessments submitted by Appellant B, the court found that these did not materially alter the assessment of dangerousness at the time of sentencing. The protective personality traits identified were present at the time of the offence but did not prevent the violent conduct, thus carrying limited weight. Similarly, for Appellant A, although significant progress was made in custody, this did not undermine the correctness of the original dangerousness assessment or the sentence imposed.
The court held that psychological reports attempting to predict future dangerousness are unlikely to assist sentencing courts unless exceptional circumstances exist, especially where no psychiatric condition is present. The court distinguished the role of the Parole Board, which assesses changes in risk over time, from the sentencing court's role, which assesses dangerousness at the time of sentencing.
Regarding Appellant C, the court found no error in the judge’s conclusion of dangerousness given the nature of the offence involving planned violence, torture, and mutilation, along with prior convictions.
The court accepted that the notional determinate term imposed on Appellants B and C was somewhat excessive relative to the factual basis of their pleas and reduced it accordingly.
Holding and Implications
The court ALLOWED IN PART the appeals of Appellants B and C by reducing the notional determinate term from 16 to 14 years, resulting in a specified period of 7 years less time on remand. The appeals were otherwise dismissed, affirming the sentences of imprisonment for public protection based on dangerousness findings.
The renewed application for leave to appeal by Appellant A was refused, maintaining the original detention for public protection sentence.
The decision underscores the principle that sentencing courts must assess dangerousness based on all relevant information available at the time of sentencing, focusing on the offender's conduct and history rather than subsequent progress. Psychological assessments predicting future risk are generally of limited assistance unless exceptional circumstances exist. The court reaffirmed the distinction between the sentencing court’s assessment and the Parole Board’s ongoing evaluation of risk post-sentence.
No new precedent was established; the ruling applies established principles concerning dangerousness assessments and the admission of fresh evidence on sentencing appeals.