Friend & Anor, R. v

An indeterminate sentence for public protection under the Criminal Justice Act 2003 requires a significant risk to members of the public of serious harm from further specified offences. Serious harm has the statutory meaning of death or serious personal injury, whether physical or psychological.

Where previous convictions trigger the statutory assumption of risk, it will usually be unreasonable to maintain that assumption unless the offences, the offender’s behavioural pattern and the information about the offender together establish the required significant risk. Sentencing judges must apply each stage of that test precisely and give clear reasons. They must not substitute a lesser standard, such as a risk of significant harm.

At Maidstone Crown Court, Tarrant and Friend pleaded guilty to robbery arising from the taking of cash from a convenience store after Tarrant pushed the shop assistant aside. Tarrant had also pleaded guilty to two thefts of jewellery and had a further robbery taken into consideration.

The sentencing judge imposed detention for public protection on Tarrant under section 225 of the Criminal Justice Act 2003, with a minimum term of 19 months less remand time. He concluded that Tarrant posed a significant risk of serious harm from further violent offending.

Tarrant appealed against that sentence. Friend, although granted leave, abandoned his appeal. The central issue was whether Tarrant’s convictions, offending history and personal circumstances justified the statutory conclusion that he presented a significant risk to the public of serious harm.

Decision

1. Tarrant’s appeal was allowed. The order for detention for public protection was quashed. A determinate sentence of 38 months’ imprisonment, less 48 days spent on remand, was substituted. Friend’s appeal was abandoned.
2. Under sections 225(1) and 229(1) of the Criminal Justice Act 2003, the court had to decide whether Tarrant posed a significant risk to members of the public of serious harm through further specified offences. Section 224 defined serious harm narrowly as death or serious personal injury, physical or psychological. If the risk threshold were met, and a life sentence were not appropriate, a sentence for public protection was mandatory.
3. Tarrant’s prior conviction for attempted robbery and two convictions for affray engaged the statutory assumption of risk. However, it would usually be unreasonable to maintain that assumption unless the offences, the pattern of behaviour and the offender’s circumstances together demonstrated the necessary significant risk, applying R v Lang and Others [2005] EWCA Crim. 2864.
4. The sentencing judge’s varying formulations showed a possible failure to apply the statutory criteria consistently. He referred at different points to a risk, a reasonable risk and significant harm. Those formulations could substitute a lower standard for a significant risk of serious harm. A judge considering an indeterminate sentence must address each statutory stage with care and precision, and give clear, albeit brief, reasons.
5. On the facts, Tarrant had neither inflicted nor attempted to inflict serious harm. His prolific offending did not show a worsening pattern, still less escalation to a significant risk of serious harm. It was therefore unreasonable to conclude that the statutory assumption applied.

• Court of Appeal (Criminal Division): In [2006] EWCA Crim 3423, the court allowed Tarrant’s appeal, quashed the sentence of detention for public protection and substituted a determinate sentence of 38 months less remand time. Friend abandoned his appeal.
• Crown Court at Maidstone: On 7 October 2005, His Honour Judge David Croft QC imposed detention for public protection under section 225 of the Criminal Justice Act 2003 on Tarrant, with a minimum term of 19 months less 48 days on remand.