Considine, R v

For the dangerousness assessment required for a public-protection sentence, information under section 229 of the Criminal Justice Act 2003 is not confined to admissible evidence or previous convictions. Relevant unproved misconduct may be considered if it can be resolved fairly.

The assessment must not become a judge-only trial of a discrete offence which the offender denies. A Newton hearing is unsuitable for that purpose. Evidence of misconduct properly admitted at trial, and other reliable material such as a pre-sentence or psychiatric report, may nevertheless inform the prospective assessment of risk.

Considine appealed against sentences of imprisonment for public protection imposed at the Crown Court at Northampton after his convictions for two threats to kill and possession of a bladed article. The sentencing judge had treated evidence of earlier violence towards the complainant, admitted at trial as bad-character evidence, as relevant to dangerousness.

Davis, sentenced at the Crown Court at Portsmouth to detention in a young offender institution for public protection after pleading guilty to possessing a firearm with intent to cause fear or violence, renewed his application for leave to appeal. The common issue was whether the dangerousness assessments for the purposes of sections 225 to 229 of the Criminal Justice Act 2003 had relied on inadmissible material.

1. Appeal dismissed; Davis’s renewed application for leave to appeal refused. The court upheld both dangerousness assessments and the respective public-protection sentences.

2. Section 229 of the Criminal Justice Act 2003 requires the court to take account of all available information about the offences and may require or permit consideration of patterns of behaviour and information about the offender. That expression is deliberately broader than evidence in the strict legal sense. It therefore permits relevant adverse material which has not resulted in a criminal conviction, provided that the issue can be resolved fairly.

3. The court explained Farrar [2006] EWCA Crim 3261. It does not impose a convictions-only rule for dangerousness. Its prohibition is against a hybrid process that effectively tries and convicts an offender, by judge alone at sentence, of a distinct denied offence. Consistently with Canavan [1998] 1CAR (s) 243, a Newton hearing cannot be used for that purpose, because it presupposes an admitted offence.

4. The source of relevant information is not determinative. Prior misconduct evidence properly admitted before a jury to prove guilt may also be relevant to dangerousness. The same may be true of material in a psychiatric report or pre-sentence report. The court rejected any distinction between formal trial evidence and other fairly resolvable information. A guilty plea cannot enable an offender to avoid use of material that would properly have been admitted at trial.

5. The court declined to prescribe inflexible procedures for disputed facts. Ordinarily, the trial material, the offender’s presentation, mitigation, a pre-sentence report, and any expert assessment should provide a sufficient and fair basis for the statutory judgment. Section 156(3) makes a pre-sentence report the normal starting point, and such reports are particularly helpful in assessing dangerousness.

6. In Considine’s case, the sentencing judge could rely on the earlier-violence evidence heard by the jury, his assessment of the offender during trial, the prior convictions, and the pre-sentence report. The statutory presumption was properly left undisplaced. In Davis’s case, the sentencing judge had applied the statutory criteria and the relevant guidance to the facts; there was no basis for appellate intervention.

• Court of Appeal (Criminal Division) — in [2007] EWCA Crim 1166, dismissed Considine’s sentence appeal and refused Davis’s renewed application for leave to appeal.
• Crown Court at Northampton — Considine was convicted of two threats to kill and possession of a bladed article, and sentenced to imprisonment for public protection under section 225 of the Criminal Justice Act 2003.
• Crown Court at Portsmouth — Davis pleaded guilty to possessing a firearm with intent to cause fear or violence, and was sentenced to detention in a young offender institution for public protection under section 226 of the Criminal Justice Act 2003.