Gore, R v

For the purposes of imprisonment for public protection under Criminal Justice Act 2003, a prior robbery falls within paragraph 10 of Schedule 15A where the offender was party to a joint-enterprise robbery and knew that an accomplice possessed a firearm or imitation firearm for it. Personal physical possession is unnecessary.

The qualifying facts of the earlier offence may be established by a clear admission made on the offender’s instructions during later sentencing proceedings. The court will not reopen that admission unless counsel’s conduct was such that no competent advocate would have acted similarly, or the offender was denied due process and a fair sentencing hearing.

The appellant pleaded guilty to manslaughter after punching the deceased, who fell and suffered a fatal head injury. At the Crown Court at Northampton, His Honour Judge Wide QC imposed imprisonment for public protection, having found a significant risk of serious harm and treated a 1996 robbery as a Schedule 15A qualifying offence.

The earlier robbery was a joint enterprise. The appellant’s accomplice was said to have possessed a handgun, but the surviving 1996 records did not conclusively establish the basis on which sentence had then been imposed. At the 2009 sentencing hearing, however, leading counsel accepted that the earlier robbery was a joint enterprise in which a firearm was used.

The appeal challenged the construction of paragraph 10 of Schedule 15A and the legal effect of that admission.

Decision

1. The court dismissed the appeal. The sentence of imprisonment for public protection was lawfully imposed.

2. Paragraph 10 of Schedule 15A to the Criminal Justice Act 2003 was materially equivalent to the earlier statutory provisions concerning robbery involving a firearm. Read in its criminal-law context, the phrase requiring that the offender had a firearm in his possession includes joint possession in a joint-enterprise robbery. It is enough that the offender knew an accomplice possessed the firearm or imitation firearm for the robbery; actual possession by the offender is unnecessary.

3. This construction accorded with Attorney General’s Reference No 71 of 1999 [1999] 2 Cr App R (S) 369 and R v Flamson [2002] 2 Cr App R (S) 48. Those authorities also showed why knowledge of the accomplice’s weapon was essential.

4. The historic records did not make the basis of the 1996 robbery sentence sufficiently clear. That uncertainty did not determine the appeal. At the 2009 hearing, counsel had unequivocally accepted, on instructions, that the appellant had participated in a joint-enterprise robbery involving a firearm. That admission necessarily included knowledge that the accomplice possessed it for the robbery.

5. An offender may make such an admission in later sentencing proceedings, ordinarily through counsel. The court could go behind it only if counsel’s conduct was so unreasonable that no competent counsel would have acted similarly, or if the offender had been denied due process and a fair sentencing hearing. Neither condition was established. The admission satisfied section 225(3A), so the sentencing judge had power to impose imprisonment for public protection.

• Court of Appeal (Criminal Division): dismissed the appellant’s sentence appeal: [2010] EWCA Crim 369.

• Crown Court at Northampton: His Honour Judge Wide QC imposed imprisonment for public protection for manslaughter, with an 18-month minimum term less time on remand.