Smith & Anor, R. v

A discretionary life sentence requires both a very serious offence and good grounds for believing that the offender may remain a serious danger to the public for a period that cannot reliably be estimated at sentence. Mental disorder will often be relevant to that assessment, but it is not essential.

An attempted contract killing, however grave, does not ordinarily by itself justify an indeterminate sentence. The court must make an individual assessment of future risk. A life sentence was proper for an offender with persistent serious criminality, unresolved risk and no present prospect of effective rehabilitation. It was wrong in principle for a previously unconvicted participant where the evidence did not show a serious continuing risk after a lengthy determinate sentence.

Both appellants were convicted by a jury at the Crown Court at Warwick of attempted murder following a planned and exceptionally violent attack on a property-letting agent. The victim was repeatedly struck with a claw hammer, left for dead, and survived with serious skull fractures and lacerations.

Each appellant received a discretionary life sentence and appealed against sentence with leave. The central issue was whether the gravity of an attempted contract killing, together with each appellant’s circumstances and risk assessment, justified an indeterminate sentence under the pre-existing discretionary-life-sentence jurisprudence.

1. Leyford Smith’s appeal was dismissed; Stephen Smith’s appeal was allowed. The court substituted a determinate sentence of 15 years’ imprisonment for Stephen Smith’s life sentence. Leyford Smith’s life sentence and specified minimum period remained undisturbed.

2. The dangerous-offender and murder-minimum-term provisions of the Criminal Justice Act 2003 did not apply. The governing pre-existing test, stated in Attorney General's Reference No 32 of 1996 (R v Whittaker) [1997] 1 Cr App R(S) 261, required a very serious offence and good grounds for believing that the offender might remain a serious danger to the public for an indeterminate period. A mental condition will often provide the basis for that conclusion, but is not a necessary requirement.

3. The court accepted that an attempted contract killing alone would not normally justify a discretionary life sentence. The sentencing court must assess whether the particular offender presents a serious, continuing and unquantifiable public risk, rather than impose an indeterminate sentence solely for punishment or deterrence.

4. Leyford Smith’s extensive and serious criminal record, including violent and acquisitive offending, previous lengthy custody, and willingness to kill for gain supported the conclusion that he remained a serious danger for an indeterminate time. His good prison conduct did not permit a reliable assessment that the risk had ceased. His continuing denial of the offence also prevented him from accessing relevant rehabilitation.

5. Stephen Smith had no previous convictions, had led a constructive working and family life, and appeared to have acted from misplaced loyalty to his brother. On the available evidence, there was no reason to conclude that he would present a serious risk to others after serving the lengthy punitive sentence required. The life sentence was therefore wrong in principle. Credit for his 310 days in custody before sentence was to count if necessary.

• Court of Appeal (Criminal Division): In [2006] EWCA Crim 901, Leyford Smith’s appeal against sentence was dismissed. Stephen Smith’s appeal was allowed and his life sentence was replaced with 15 years’ imprisonment.
• Crown Court at Warwick: Both appellants were convicted of attempted murder and sentenced to life imprisonment with specified minimum periods.