Joy R. v

A sentence of imprisonment for public protection under the Criminal Justice Act 2003 requires a properly established significant risk that future specified offending will cause serious harm. A risk of general reoffending is insufficient. The court must identify a causative link between the relevant future offending and serious physical or psychological injury.

A statutory presumption of risk must be assessed against all available information. It may be unreasonable to maintain the presumption where the facts do not establish that link. Generic assertions about the date of offending cannot engage the dangerousness regime; the relevant post-commencement offence must be identified.

The applicant pleaded guilty at Leicester Crown Court to five counts of making and six counts of possessing indecent photographs of children. He received concurrent two-year terms for possession and sentences of imprisonment for public protection for making the images.

On appeal, it was accepted that only one making count was committed after the relevant commencement date for the dangerousness provisions of the Criminal Justice Act 2003. The central issue was whether the applicant nevertheless presented a significant risk of serious harm from further specified offences, so as to justify imprisonment for public protection.

1. Appeal allowed. The court set aside all the sentences imposed below. It substituted concurrent terms of 12 months’ imprisonment on each count and varied the notification requirement from life to 10 years.

2. The sentencing judge had been wrongly invited to treat generic material as sufficient to show that a number of offences were committed after the commencement of the Criminal Justice Act 2003. That approach was impermissible under Harries [2007] EWCA Crim. 1622. On the agreed facts, only count 3, a making offence, fell within the dangerousness regime.

3. Section 225 required a significant risk to members of the public of serious harm caused by further specified offences. Serious harm included serious physical or psychological injury under section 224(3). Although section 229(3) required the court initially to assume risk because of the applicant’s prior relevant offending, the presumption could not survive an assessment of all the information if that conclusion was unreasonable.

4. The applicant’s history and the current downloading offence did not establish a significant risk that future specified offending would cause serious personal injury. The court applied Lang [2005] EWCA Crim. 2864: a causative link between the future offending and serious harm had to be shown, in addition to any risk of general reoffending. Imprisonment for public protection was therefore neither available nor necessary.

5. A determinate sentence was required. Applying the image classification approved in Oliver [2003] 2 Cr.App.R (S) and the applicable sentencing guidance, the applicant’s previous sexual offending justified a higher starting point. Allowing full credit for his early guilty plea, 12 months’ imprisonment was appropriate.

• Court of Appeal (Criminal Division): allowed the sentence appeal in [2007] EWCA Crim 3281, set aside the sentences of imprisonment for public protection and substituted concurrent determinate sentences.
• Crown Court at Leicester: following guilty pleas, imposed concurrent two-year sentences for possession offences and imprisonment for public protection for making offences.