Pedley & Ors v R

The ‘significant risk’ condition in section 225 of the Criminal Justice Act 2003 requires a qualitative and fact-sensitive assessment. A sentencing judge may weigh the likelihood of future serious harm against its gravity. The condition is more demanding than a mere possibility, but it cannot sensibly be converted into a numerical probability.

An IPP sentence imposed on that basis is compatible with articles 3 and 5(1)(a) of the European Convention on Human Rights. A concluded criminal appeal may be re-listed only where a procedural failure deprived the appellant of a proper hearing and rendered the apparent determination a nullity. A risk of serious psychological harm must itself be significant; some risk, even where future offending remains a concern, does not justify indefinite imprisonment.

Three sentence cases were heard together because they raised a common question about the construction of the ‘significant risk’ test for imprisonment for public protection under section 225 of the Criminal Justice Act 2003, and its compatibility with the European Convention on Human Rights.

Pedley had received an IPP sentence for an armed security-van robbery. Martin had received IPP sentences for sexual activity in the presence of children. Hamadi had previously appealed against an IPP sentence for rape; the court had upheld the IPP but reduced the minimum term. He sought to have that concluded appeal re-listed.

The central issues were whether ‘significant risk’ required a high or numerically measurable probability of serious harm, whether the statutory test was Convention-compliant, whether Hamadi’s appeal could be reopened, and whether the IPP sentences imposed on Pedley and Martin were justified.

1. Construction and Convention compatibility. The court rejected the proposed numerical redefinition of the section 225 test. Whether the risk of serious harm is significant is a qualitative, fact-sensitive judgment made from all available information about the offender. The judge may balance the probability of harm against its gravity. A lower probability of particularly grave harm may be significant, while a greater probability of less grave harm may not be. The threshold remains higher than a mere possibility, and sentencers should not attach arithmetical values to it.
2. An IPP imposed where the statutory test is met is compatible with articles 3 and 5(1)(a) of the European Convention on Human Rights. It is proportionate to the danger of serious harm and is controlled by law. The minimum term reflects the instant offence, and release is available once the significant risk no longer exists.
3. Hamadi. The court could re-list a concluded criminal appeal only where an administrative or procedural failure had deprived the appellant of a proper hearing, so that the apparent determination was a nullity. Hamadi had received a full hearing. Re-listing would merely permit a new argument, or the re-argument of an issue already decided. The application was dismissed.
4. Pedley. Having obtained a probation report, the court held that the loaded firearm used in a planned robbery, Pedley’s acquisitive offending, and his record of dangerous and reckless behaviour entitled the sentencing judge to find a significant risk of future serious harm. Leave to appeal against sentence was refused.
5. Martin. The evidence established a risk of future offending and some risk of serious psychological harm. It did not establish a significant risk of such harm sufficient to justify an IPP. The IPP sentences were quashed and replaced by concurrent sentences of three years’ imprisonment. The court also made an indefinite sexual offences prevention order under section 104 of the Sexual Offences Act 2003.

• House of Lords. Hamadi obtained a certificate concerning Convention compatibility, but the House of Lords declined leave because the point had not been argued below.
• Court of Appeal (Criminal Division). In [2009] EWCA Crim 840, the court rejected the Convention challenge and the application to re-list Hamadi’s appeal, refused Pedley leave to appeal, and allowed Martin’s sentence appeal.
• Court of Appeal (Criminal Division). Hamadi’s earlier appeal against sentence was heard in December 2007. The court upheld the IPP sentence but reduced the minimum term. No citation was stated in the judgment.
• Crown Courts at Birmingham, Stafford and Newcastle. The appellants received the IPP sentences challenged in these proceedings.