Owen, R. v

An imprisonment for public protection sentence is a protective, not retributive, measure. It may be imposed only where the evidence establishes a significant risk that the offender will commit further specified offences causing death or serious personal injury. The assessment is cumulative, but evidence of irresponsibility, a capacity to offend, or a speculative possibility of future harm does not meet that stringent threshold. The statutory meaning of serious harm under the Criminal Justice Act 2003 must not be diluted.

The applicant was convicted with the mother of a child and her boyfriend of causing or allowing the child’s death, contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004. He did not challenge his conviction or the judge’s assessment that the appropriate determinate term was six years’ imprisonment.

The sentencing judge nevertheless imposed imprisonment for public protection, with a minimum term of three years, after finding that the applicant posed a significant future risk of serious harm through further specified offences. The applicant appealed that finding. The central issue was whether the evidence supported the statutory threshold of significant risk.

1. Appeal allowed. The court quashed the sentence of imprisonment for public protection and substituted a determinate sentence of six years’ imprisonment. The 289 days spent in custody before sentence were to count towards that sentence.

2. An imprisonment for public protection sentence exists to protect the public against future risk, rather than to add punishment for past wrongdoing. It is justified only where there is a significant risk of future specified offending causing death or serious physical or psychological injury. The definition of serious harm in section 224(3) of the Criminal Justice Act 2003 must not be watered down.

3. The assessment had to proceed from the basis of the applicant’s conviction. The jury had not identified the person who inflicted the child’s injuries. The applicant’s culpability was a failure to protect the child from another person’s violence, not personal physical violence. That was consistent with the breadth of the section 5 offence explained in Ikram & Parveen [2008] 2 Cr.App.R 24.

4. The judge was entitled to consider the applicant’s irresponsibility, self-centred conduct, previous arson, and limited recognition of his culpability. Those matters did not, separately or cumulatively, establish the required future danger. The earlier arson had occurred in stressed circumstances and had been assessed at the time as a one-off offence with a very low risk of repetition. The pre-sentence report’s assessment of future risk was tentative and partly proceeded on a mistaken understanding that the applicant had been responsible for physical injuries.

5. Although the applicant might present some speculative risk of future harmful offending, that fell short of a significant risk of future death or serious personal injury. His record contained no history of violence or exploitative or dangerous sexual offending. The indeterminate sentence was therefore unjustified, while the unchallenged six-year determinate term remained appropriate.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence, quashed the imprisonment for public protection sentence, and substituted a determinate sentence of six years’ imprisonment.
• Sentencing court (not identified in the judgment): Following the jury conviction, imposed imprisonment for public protection with a minimum term of three years, based on a six-year determinate term.