R v Smith

A significant risk of serious harm under section 225(1)(b) of the Criminal Justice Act 2003 is assessed on the premise that the offender is at large. The sentencing judge decides whether that risk exists when sentence is imposed. The assessment does not take account of the protection afforded by the offender’s present or future detention.

An existing life sentence therefore does not prevent the imposition of imprisonment for public protection. Although imposing a further indeterminate sentence which provides no additional protection will ordinarily be undesirable, it may properly record a renewed judicial finding of dangerousness.

The appellant committed eight armed robberies while released on licence from an existing life sentence. His arrest resulted in his recall to prison. Following guilty pleas, the Crown Court imposed concurrent sentences of imprisonment for public protection, with a minimum term of six years.

The Court of Appeal rejected the contention that a further indeterminate sentence was wrong in principle. The cover sheet identifies its decision as [2010] EWCA Crim 530, although paragraph 11 of the Supreme Court judgment prints [2010] EWCA Crim 246.

The issues were whether the existing life sentence prevented the statutory finding of a significant risk of serious harm and, alternatively, whether the judge had wrongly exercised the discretion to impose imprisonment for public protection.

1. Appeal dismissed. The existing life sentence and recall to custody did not make the sentence of imprisonment for public protection unlawful.

2. Section 225(1)(b) of the Criminal Justice Act 2003 is expressed in the present tense. Its risk assessment proceeds on the premise that the offender is at large. The sentencing judge must decide, at the time of sentence and on that premise, whether the offender presents a significant risk of causing serious harm by committing further specified offences.

   The provision does not require the judge to predict whether that risk will remain after the offender has served the custodial period which would otherwise be imposed. Such a construction would place an unrealistic burden on the sentencing judge. The protection temporarily afforded by imprisonment therefore does not eliminate the statutory risk.

3. Section 34 of the Crime (Sentences) Act 1997 expressly contemplates that an offender may be subject to more than one indeterminate sentence. That provision did not alone answer the construction issue, since it could also address multiple mandatory life sentences. The earlier practice concerning concurrent sentences of imprisonment for public protection nevertheless illustrated that existing detention does not extinguish the relevant assessment of dangerousness.

4. The substitution of “may” for “must” in section 225(3) of the Criminal Justice Act 2003 gave the sentencing judge a discretion. It will not ordinarily be sensible to impose imprisonment for public protection where it achieves no benefit beyond that secured by an existing life sentence and a determinate sentence.

   The sentence was nevertheless proper here. The Parole Board had previously released the appellant after being satisfied that he no longer posed the relevant danger. The later sentencing judge was entitled to impose a sentence which formally recorded the renewed finding that the statutory dangerousness condition was satisfied.

1. United Kingdom Supreme Court: The appeal was dismissed. The court upheld the sentence of imprisonment for public protection: [2011] UKSC 37.
2. Court of Appeal (Criminal Division): The court dismissed the challenge that the further indeterminate sentence was wrong in principle. The cover sheet identifies the decision as [2010] EWCA Crim 530; paragraph 11 prints [2010] EWCA Crim 246.
3. Crown Court at Harrow: Following guilty pleas, the appellant received concurrent sentences of imprisonment for public protection, with a minimum term of six years.