Attorney General Reference No 81 of 2006

Where a sentencing judge concludes that an offender has committed a serious offence and presents a significant risk of serious harm to members of the public through further specified offences, Criminal Justice Act 2003 section 225 requires either a life sentence or imprisonment for public protection. A determinate custodial sentence is unavailable once those statutory conclusions have been reached.

The Attorney General referred as unduly lenient a sentence of four years’ imprisonment imposed at Derby Crown Court for arson, reckless as to whether life was endangered. The offender set fire to petrol poured through the front door of a first-floor flat while its adult occupant and three young children were asleep inside.

The sentencing judge had found both that the offence was serious and that the offender presented a significant risk of serious harm to the public through further specified offences. During the reference, counsel for the offender conceded that those findings required a sentence of imprisonment for public protection.

The issue was the sentence required by section 225 of the Criminal Justice Act 2003.

1. The reference was allowed. The Court granted leave under section 36 of the Criminal Justice Act 1988 and accepted the offender’s concession that the four-year determinate sentence was unduly lenient.
2. The sentencing judge had concluded that the arson was a serious offence and that the offender posed a significant risk to members of the public of serious harm through further specified offences. Those conclusions engaged section 225 of the Criminal Justice Act 2003.
3. Once that statutory threshold had been reached, the judge had no alternative but to impose either a life sentence or imprisonment for public protection. On the circumstances of this offence, imprisonment for public protection was the appropriate sentence.
4. The Court substituted imprisonment for public protection for the four-year sentence. It specified a minimum term of two years, less 330 days spent in custody on remand.

• Court of Appeal (Criminal Division): On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the Court held the determinate sentence to be unduly lenient and substituted imprisonment for public protection: [2006] EWCA Crim 2637.
• Derby Crown Court: On 29 June 2006, the offender was sentenced to four years’ imprisonment for arson reckless as to whether life was endangered.