Forrester, R. v

An order of imprisonment for public protection under section 225 of the Criminal Justice Act 2003 requires the sentencing court to make its own assessment of whether the offender poses a significant risk of serious harm through further specified offences. A pre-sentence report may guide that assessment but does not bind the court. A loaded firearm pointed at a victim’s head could support that conclusion despite the absence of previous specified offences.

The court also stated that, where a properly charged prohibited-firearm count under the Firearms Act 1968 attracts the statutory minimum sentence and admits no defence, a plea should be taken. The count should not be left on the file while an equivalent minimum is sought indirectly through another count.

The applicant pleaded guilty at Southwark Crown Court to attempted robbery and associated firearm, weapon and drug offences. He had approached the victim with a loaded, cocked semi-automatic pistol, pointed it at the victim’s face, and threatened him during an attempted robbery.

The sentencing judge imposed imprisonment for public protection under section 225 of the Criminal Justice Act 2003, with a minimum term of five years. A single judge refused leave to appeal. On the renewed application, the Court of Appeal considered whether the finding of dangerousness justified imprisonment for public protection and whether the minimum term was excessive. It also addressed the handling of a prohibited-firearm count, the proposed cross-examination of the pre-sentence report’s author, and deportation observations.

1. Appeal allowed to a limited extent. The court granted leave on the minimum-term issue and held that the judge’s notional custodial sentence of ten years after the guilty plea was too high. On the unusual facts, the appropriate minimum term under the imprisonment-for-public-protection sentences was three and a half years, less 163 days already spent in custody. The appellant was absent and could seek relisting within 28 days; otherwise the appeal would be allowed on that basis.
2. Imprisonment for public protection was justified. The court upheld the judge’s conclusion that the statutory condition in section 225 of the Criminal Justice Act 2003 was satisfied. The sentencer had to make an independent assessment of significant risk, informed but not controlled by the pre-sentence report. The loaded and cocked firearm, pointed at the victim’s head in the course of the attempted robbery, demonstrated capacity for very dangerous conduct. A struggle or accidental discharge could readily have caused fatal harm.
3. Prohibited-firearm count. The court stated that a properly included count under section 5(1) of the Firearms Act 1968, where there was no defence and the statutory minimum applied through section 51A, should have been the subject of a plea. It was inappropriate to leave that count on the file while inviting the court to achieve the statutory minimum indirectly through the section 17 offence.
4. Ancillary matters. The refusal to permit cross-examination of the report’s author was plainly correct. The report’s basis was clear, cross-examination would not assist, and the judge had to form an independent view. The court further observed that family circumstances should be left to the Secretary of State when deportation is considered, and that deportation will generally be irrelevant to whether imprisonment for public protection is appropriate.

• Court of Appeal (Criminal Division): On a renewed application after refusal by the single judge, the court granted leave limited to sentence length and allowed the appeal to substitute a three-and-a-half-year minimum term: [2006] EWCA Crim 2136.
• Crown Court at Southwark: Following guilty pleas, imposed imprisonment for public protection with a five-year minimum term in March 2006.