Gilbert v R

Under section 225(1)(b) of the Criminal Justice Act 2003, as then in force, dangerousness required a significant risk that further specified offences would cause serious harm to members of the public. A high risk of further offending and of some harm did not remove the need to assess the seriousness of the prospective harm.

On appeal, the question is whether the sentencing judge had material capable of supporting that assessment and whether the conclusion has been shown wrong. The assessment must be made from the material then available and in the light of the law then prevailing.

The applicant pleaded guilty at Chelmsford Crown Court to robbery, thereby also acknowledging breach of a suspended sentence. In March 2007, when aged 19, he received an indeterminate sentence for public protection with a minimum term of 18 months. The sentence should formally have been expressed as detention in a young offender institution for public protection.

More than five years later, he sought an extension of time and leave to appeal against sentence. The challenge was confined to the sentencing judge’s finding of dangerousness under Chapter 5 of Part 12 of the Criminal Justice Act 2003, before amendment. The central issue was whether the risk of future harm from further specified offences was properly found to be serious.

1. Extension and leave were granted, but the appeal was dismissed. The court assessed the sentence by reference to the law and guidance prevailing when it was imposed. At that time, a finding of dangerousness under section 225 of the Criminal Justice Act 2003 made an indeterminate sentence mandatory.

2. The statutory question was whether there was a significant risk to members of the public of serious harm through the commission of further specified offences. It was accepted that there was a significant risk of further specified offending and consequent harm. The live issue was whether the prospective harm was serious.

3. The sentencing judge had sufficient material to find serious harm. The applicant’s offence, escalating offending, impulsive and unpredictable behaviour, personality disorder, severe learning disability and inability to engage constructively with assistance were all relevant when considered together. The absence of professional advice expressly directed to future serious harm did not prevent the judge from reaching that conclusion on the available material.

4. The court could not conclude that the judge was wrong. It acknowledged the troubling consequences of the indeterminate sentence and that the amended statutory scheme would not permit such a sentence on the same minimum term. Those later consequences and changes did not undermine the lawfulness of the original dangerousness finding.

• Court of Appeal (Criminal Division) — in [2012] EWCA Crim 1221, granted an extension of time and leave to appeal, but dismissed the sentence appeal.

• Chelmsford Crown Court — following a guilty plea to robbery, imposed an indeterminate sentence for public protection with a minimum term of 18 months in March 2007.