Cooper, R. v

A discretionary life sentence may be justified where the offending is grave, the offender is likely to commit similar offences, and the consequences for others may be especially injurious. The likelihood of future offending may be established from the nature of the offences themselves; it need not depend on a prior history of similar offending or a separate indicator of dangerousness.

The sentencing decision is forensic rather than medical. Psychiatric evidence may assist, but denial which prevents assessment of dynamic risk factors can make a benign risk assessment unsafe. Fresh psychiatric evidence on appeal must be assessed with the original material to decide whether the sentence was wrong or manifestly excessive.

The appellant was convicted in the Crown Court at Winchester of two rapes, two false imprisonments, making a threat to kill, and assault occasioning actual bodily harm against two women with whom he had relationships. He received discretionary life sentences for the rapes, with a seven-year minimum period, and concurrent sentences on the remaining counts.

He appealed out of time. His principal complaint was that a psychiatric report commissioned for the defence had been disclosed without his authority and that the sentencing judge wrongly preferred its diagnosis of personality disorder to another report without hearing either expert. The full court granted an extension of time, leave to appeal, and permission for fresh psychiatric evidence. The central issues were whether life sentences were open in 1997 and whether the fresh evidence made them wrong or manifestly excessive.

1. Appeal dismissed. Although the sentencing judge should not have resolved the conflict between the psychiatric reports by simply preferring one diagnosis without hearing from either expert, that error did not affect the propriety of the discretionary life sentences.

2. Applying the criteria drawn from R v Hodgson (1967) 52 Cr App R 113, the offences plainly satisfied the requirements of exceptional gravity and especially injurious consequences. The second requirement could be met by the nature of the offences as an alternative to the offender’s history. It was therefore unnecessary to identify a prior sexual-offending history, a campaign of rape, or a separate factor of dangerousness outside the offences themselves.

3. The attacks displayed escalating seriousness and disturbing similarities: alcohol, anger at frustration by women, weapons, humiliation, threats, gratuitous violence and fetishistic material. Those features, together with the judge’s assessment after hearing the evidence, made a conclusion of continuing danger to women open even if the disputed diagnosis of dissocial personality disorder were ignored.

4. The decision whether to impose a discretionary life sentence was forensic rather than medical. Psychiatric material could assist the court but did not dictate the outcome. The court also treated the disclosed report as material which the judge was entitled to read once it had come into his hands, while recognising that the decisive criticism concerned the unsupported resolution of the experts’ disagreement.

5. The fresh evidence did not render the sentences excessive. Static actuarial assessments were incomplete because the appellant’s continued denial prevented examination of dynamic risk factors. The appellant’s expert’s benign explanation for the offending rested on hypotheses rather than a sound basis for risk assessment. The fresh evidence would not have altered the original decision and did not show that the sentences were now wrong in principle or manifestly excessive.

• Court of Appeal (Criminal Division): dismissed the sentence appeal in [2006] EWCA Crim 2130 after admitting fresh psychiatric evidence.
• Crown Court at Winchester: convicted the appellant of two rapes and associated offences, and imposed discretionary life sentences for the rapes with a seven-year minimum period.