Lang,& Ors, R. v

An indeterminate sentence for public protection requires a significant risk that further specified offending will cause death or serious personal injury, including serious psychological injury. A high risk of reoffending, persistent low-level offending, or the bare fact that a future offence is serious does not establish that separate requirement.

The statutory assumption for an adult with a previous specified conviction is rebuttable. It will usually be unreasonable to apply it unless the information about the offences, behavioural pattern and offender demonstrates a significant risk of serious harm. Sentencers should obtain and evaluate appropriate reports, give reasons, and consider whether an extended sentence adequately protects the public, particularly for young offenders.

Thirteen appeals and Registrar referrals were heard together following sentences imposed under the new dangerous-offender provisions in the Criminal Justice Act 2003. The appellants had committed specified violent or sexual offences after 4 April 2005.

The sentencing courts had imposed life imprisonment, imprisonment or detention for public protection, extended sentences, or, in one case, a suspended custodial sentence. The common issues were the meaning of significant risk of serious harm, the operation of the statutory assumption of dangerousness, the distinction between life sentences and sentences for public protection, and the adequacy of extended sentences.

The court used the appeals to give general sentencing guidance and then reviewed the propriety of each individual sentence.

1. Appeals allowed in part. The court quashed a number of life, public-protection and extended sentences because the statutory threshold had not been established. It upheld detention for public protection in Sheppard and, subject to corrections, in Collier. It dismissed the appeal in Edwards.

2. For an adult convicted of a serious specified offence, Criminal Justice Act 2003 section 225 requires a life sentence where the offender is liable to life imprisonment and the offence seriousness justifies it. Otherwise, where there is a significant risk of serious harm from further specified offending, imprisonment for public protection is required. The seriousness criterion for life imprisonment was construed consistently with R v Chapman [2000] 1 Cr App R(S) 77.

3. Significant risk means more than a possibility. The court must assess both the likelihood of further specified offending and the likelihood that it will cause death or serious personal injury, physical or psychological. The assessment requires the circumstances of the current offence, previous offending and any pattern, the offender’s social circumstances, substance misuse, attitude and emotional condition. A pre-sentence report will usually be needed.

4. A serious future offence does not automatically create a significant risk of serious harm. Equally, repetitive violent or sexual offending at a low level, without serious harm, does not by itself establish the required risk. A sentencer must not infer significant risk of serious harm merely from a high risk of reoffending.

5. The assumption in section 229(3) is a matter of judicial judgment, not a burden or standard of proof. It was properly applied in Lang and Collier, but should have been treated as rebutted or inapplicable in several other appeals. In Lang, the knife, its use near the victim’s face and the recent robbery record justified imprisonment for public protection, but not life imprisonment. In Abdi, Winters, Carasco, Feihn and Wright, the evidence did not establish significant risk of serious harm.

6. For offenders under 18, the court must consider whether an extended sentence is adequate before imposing detention for public protection. Youth, maturity and capacity for change may be highly material. Nevertheless, the gravity and pattern of knife violence in Sheppard, and the entrenched violent robbery risk in D, justified detention for public protection. The latter’s notional determinate term was reduced to five years.

7. The court quashed the extended sentences imposed on Smith, Armitage and Glave. It also corrected unlawful or erroneous ancillary sentencing features, including the form of detention for Collier and the purported licence term in Wright.

• Court of Appeal (Criminal Division): In [2005] EWCA Crim 2864, the court allowed or varied most appeals, gave general guidance on dangerous-offender sentences, and dismissed the appeals of Sheppard and Edwards.

• Crown Court and Magistrates’ Court stages: The appellants had pleaded guilty, or had been committed for sentence, in courts including Basildon, Inner London, Birmingham, Woolwich, Croydon, Derby, Cardiff, Winchester, Warrington, Cambridge, Sheffield and Truro. The sentencing decisions applied the new provisions of the Criminal Justice Act 2003.