Johnson, R v

Imprisonment for public protection under the Criminal Justice Act 2003 depends on a prospective assessment of whether an offender presents a significant risk of serious harm through further specified offences. Previous convictions neither compel nor preclude that conclusion. The statutory assumption under section 229(3) remains subject to the sentencer’s judgment of whether it would be unreasonable to maintain it.

Actual absence of harm may be fortuitous and does not make future serious harm negligible. Previous non-specified offending, an escalating pattern of conduct, and personal vulnerability may all be relevant to risk. Appellate intervention depends on whether the sentence was wrong in principle or manifestly excessive, or, on an Attorney General’s reference, unduly lenient.

Five sentencing matters concerning imprisonment for public protection were heard together because they raised common questions under sections 224 to 229 of the Criminal Justice Act 2003.

• Johnson appealed an imprisonment for public protection order imposed for manslaughter.
• Hamilton renewed his application to appeal concurrent imprisonment for public protection sentences for robbery-related offences.
• Lawton appealed an imprisonment for public protection order for arson.
• The Attorney General referred Jones’s determinate sentences for affray and attempted murder as unduly lenient.
• Gordon renewed his application to appeal an imprisonment for public protection order for wounding with intent.

The central issue was the proper assessment of dangerousness and the circumstances in which an appellate court should interfere with the sentencing judge’s conclusion.

1. The court gave further guidance on the dangerousness provisions in the Criminal Justice Act 2003. Dangerousness is a convenient shorthand for the statutory question whether there is a significant risk to members of the public of serious harm through further specified offences. The assessment is directed to future public protection, although it must be made from the information available at sentence.

2. There are two distinct components: a significant risk of further specified offending, and a significant risk that such offending will cause serious harm. A person may be dangerous without previous convictions. Conversely, previous convictions for specified offences do not compel that conclusion. Under section 229(3), the statutory assumption is rebuttable because the sentencer must decide whether it would be unreasonable to maintain it after considering all relevant information.

3. The court approved and amplified the guidance in R v Lang and others [2006] 1WLR 2509. The legislation, rather than that guidance, remains the governing source. Previous offending which is not specified may be relevant, particularly where it shows escalating seriousness. The fact that earlier offences caused no actual harm may be significant, but may also be fortuitous; it does not as a rule make future serious harm negligible. Personal inadequacy or vulnerability may mitigate culpability but may also reinforce the assessment of future risk.

4. It is desirable for the prosecution to provide the facts of earlier specified offences, but failure to do so does not normally require an adjournment or prevent imprisonment for public protection. A disputed fact may be relied on only if it can fairly be resolved adversely to the offender. Sentencing remarks must explain the reasoning for the dangerousness conclusion.

5. The court will not ordinarily interfere where the sentencer identified the relevant principles and considered the relevant facts. The question is whether the sentence was wrong in principle or manifestly excessive. On an Attorney General’s reference, the question is whether the failure to impose the sentence was unduly lenient.

6. Johnson’s and Lawton’s appeals were dismissed. Hamilton’s application was allowed only to reduce the notional determinate term from nine to seven years, producing a minimum term of three and a half years; imprisonment for public protection remained appropriate. The Attorney General’s reference concerning Jones was allowed: imprisonment for public protection was imposed with a five-year minimum term. Gordon’s renewed application was refused.

• Court of Appeal (Criminal Division): In this conjoined judgment, the court dismissed Johnson’s and Lawton’s appeals, reduced Hamilton’s notional determinate term while retaining imprisonment for public protection, allowed the Attorney General’s reference concerning Jones, and refused Gordon’s renewed application.
• Crown Courts: Johnson was sentenced at Liverpool Crown Court; Hamilton at Southwark Crown Court; Lawton and Gordon at Sheffield Crown Court; and Jones at Winchester Crown Court.
• Rotherham Magistrates’ Court: Lawton pleaded guilty to criminal damage and arson, and was committed to Sheffield Crown Court for sentence.