Folkes, R v

A finding that an offender presents a significant risk of serious harm does not, by itself, justify a life sentence under section 225(2) of the Criminal Justice Act 2003. The seriousness of the offence must also justify life imprisonment. The court proceeded on the tentative view that this requires the established criteria for a life sentence, including an offence calling for a severe sentence.

A significant risk of serious harm may be established although earlier victims did not suffer serious injury, where repeated violent offending creates a real risk of serious physical injury. Where the risk condition is met but the life-sentence condition is not, imprisonment for public protection under section 225(3) is the appropriate sentence.

The applicant pleaded guilty at Kingston-upon-Thames Crown Court to robbery after violently taking two gold chains from a woman. He had comparable previous robbery offending, a serious mental illness, and drug misuse which could exacerbate his condition. On 12 October 2005 he received life imprisonment under section 225(2) of the Criminal Justice Act 2003, with a minimum term of two years and 140 days.

On renewing his application for leave to appeal against sentence, he challenged the use of a life sentence rather than imprisonment for public protection. He did not seek a reduction in the minimum term. The central issue was whether the statutory conditions justified life imprisonment.

1. Appeal allowed. The court granted leave limited to the nature of the indeterminate sentence. It set aside the life sentence and substituted imprisonment for public protection under section 225(3) of the Criminal Justice Act 2003. The minimum term of two years and 140 days remained unchanged.
2. The robbery was a serious offence for the purposes of section 225. The applicant had relevant previous convictions, so section 229(3) required the court to assume a significant risk of serious harm unless that would be unreasonable. The assumption was not rebutted. Although the injuries in the index and earlier offences had not been shown to be serious, the violent use of force in repeated robberies created a real risk of serious physical injury. The psychiatric evidence and substance misuse reinforced the risk of future serious harm.
3. The separate condition in section 225(2)(b) was not met. The court’s tentative view, supported by Lang and others [2005] EWCA Crim. 2864, was that the established criteria for a life sentence still had to be satisfied. Those criteria included that the offence itself called for a severe sentence. Applying the approach stated in Chapman [2000] 1 Cr.App.R 77, the court held that this robbery, viewed in the context of the possible imposition of life imprisonment, did not meet that threshold.
4. Accordingly, dangerousness justified an indeterminate sentence but not life imprisonment. The correct statutory disposal was imprisonment for public protection.

• Court of Appeal (Criminal Division): renewed application for leave to appeal against sentence granted on a limited basis; appeal allowed, life imprisonment set aside, and imprisonment for public protection substituted: [2006] EWCA Crim 287.
• Crown Court at Kingston-upon-Thames: following a guilty plea to robbery, imposed life imprisonment under section 225(2) of the Criminal Justice Act 2003, with a minimum term of two years and 140 days.