Birkett, R v

An imprisonment for public protection under section 225(3B) of the Criminal Justice Act 2003 requires a notional minimum term of at least two years. A court must not impose a sentence longer than is commensurate with the offence’s seriousness in order to meet that threshold.

In assessing seriousness for reckless arson, the court must evaluate the actual circumstances, including the harm caused, the extent of damage, the offender’s history and whether the incident was isolated. Where the proper determinate sentence, after credit for plea, is less than four years, neither imprisonment for public protection nor an extended sentence is available under section 225(3B).

The appellant pleaded guilty at Preston Crown Court to reckless arson as to whether life was endangered. While drunk, depressed and angry, he set fire to curtains in his flat. The fire caused limited property damage and no physical injury, although another occupant suffered smoke inhalation, shock and distress.

The Recorder found that the appellant posed a significant risk of serious harm and imposed imprisonment for public protection under section 225 of the Criminal Justice Act 2003, with a two-year minimum term less time on remand. The appellant appealed against sentence, contending that the six-year post-trial starting point was excessive, that dangerousness had not been established, and that an extended sentence would in any event suffice.

The central issue was whether the Recorder’s six-year starting point after trial was manifestly excessive.

1. Appeal allowed. The court quashed the sentence of imprisonment for public protection and substituted a determinate sentence of three years’ imprisonment, with the same credit for time spent on remand.

2. Section 225(3B) of the Criminal Justice Act 2003 permits imprisonment for public protection only where the notional minimum term is at least two years. The statutory threshold does not permit a court to select a sentence longer than that commensurate with the seriousness of the offence. The court applied the guidance in R v C and others [2008] EWCA Crim 2790.

3. The Recorder’s post-trial starting point of six years was manifestly excessive. This was a one-off incident committed when the appellant was drunk, depressed and angry. It could be viewed as a cry for help. No person was injured, damage was limited, there was no prior fascination with fire, and another person was present who could be expected to try to extinguish it.

4. The appropriate post-trial starting point was four and a half years. Allowing credit for the guilty plea, the proper determinate sentence was three years. The notional minimum term was therefore below two years, so the conditions for imprisonment for public protection were not met. An extended sentence was likewise unavailable.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and substituted a three-year determinate sentence: [2009] EWCA Crim 2302.
• Preston Crown Court: On 29 May 2009, imposed imprisonment for public protection under section 225 of the Criminal Justice Act 2003, with a two-year minimum term less 226 days on remand.