Attorney General's Reference No 94 of 2006

A discretionary life sentence is justified where the offending itself merits a very long sentence, the offender’s character or history shows a likelihood of similar further offending, and such offending may have specially injurious consequences. The criteria interact, but the gravity of the actual offence remains indispensable. A high risk of grave future offending cannot replace that requirement.

Where serious arson offences satisfy all three criteria, a determinate sentence may be unduly lenient and life imprisonment may be the only appropriate sentence. On an Attorney General’s reference, the court may reflect double jeopardy by retaining the existing period before parole eligibility when substituting life sentences.

The Attorney General referred the offender’s sentence as unduly lenient under section 36 of the Criminal Justice Act 1988. At Derby Crown Court, the offender had pleaded guilty to reckless arson endangering life and arson with intent to endanger life. He received concurrent sentences of six and nine years’ imprisonment.

The offences involved fires at a church and at the front door of an occupied flat. The latter was deliberately started at the only exit while the occupant was likely to be asleep. The offender had a long history of fire-setting, including a previous conviction for reckless arson endangering life. Psychiatric and pre-sentence reports assessed the risk of further fire-setting as very high.

The central issue was whether the determinate sentences were unduly lenient and whether the proper sentence was discretionary life imprisonment.

Held

1. Reference allowed. The concurrent determinate sentences were unduly lenient. The court gave leave and substituted a life sentence on each count.
2. The court applied the three criteria stated in R v Hodgson [1968] 52 Cr.App.R 113. The offences had to be grave enough to require a very long sentence; the offender had to be likely, by character or history, to commit similar offences; and further offending had to be capable of causing specially injurious consequences.
3. The court accepted the explanation in R v Chapman [2000] 1 Cr.App.R(S)282 that the criteria interact, but that the first condition remains indispensable. A life sentence cannot be imposed unless the offence actually committed calls for a severe sentence. That condition was met here. There were two serious arsons, including deliberate arson with intent to endanger life at the only exit from an occupied flat.
4. The offender’s history and the psychiatric evidence established that he was of unstable character and likely to commit further arson. The likely consequences of such offending created a grave risk of severe injury to others. All three criteria were therefore satisfied, and life imprisonment was the only appropriate sentence.
5. Applying the principle of double jeopardy, the court did not increase the period before parole eligibility. It retained the period derived from the original nine-year sentence: four years and six months. The life sentences were dated from the original sentencing date.

• Court of Appeal (Criminal Division). On the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court held the sentences unduly lenient and substituted life sentences: [2006] EWCA Crim 3028.
• Crown Court at Derby. On 11 August 2006, the offender received concurrent sentences of six years for reckless arson endangering life and nine years for arson with intent to endanger life.