Brook, R. v

When sentencing for manslaughter by provocation, a court considering the dangerous-offender regime under section 225 of the Criminal Justice Act 2003 must remain faithful to the jury’s verdict. It must therefore proceed on the required assumptions that the offender lost self-control, that the loss was caused by the deceased’s conduct, and that it was reasonable in all the circumstances.

An assessment of dangerousness cannot rely on facts or risk conclusions inconsistent with those assumptions. Where the index offence and a pre-sentence report are the only suggested bases for dangerousness, and both effectively go behind the verdict, there is no proper basis for an indeterminate sentence of imprisonment for public protection.

The appellant was acquitted of murder but convicted at Manchester Crown Court of manslaughter by reason of provocation following a fatal and sustained attack on a neighbour. The sentencing judge imposed imprisonment for public protection under section 225 of the Criminal Justice Act 2003, with a minimum term of six years less time served on remand.

On appeal against sentence, the appellant contended that there was no proper basis for a finding that he presented a significant risk of serious harm from further specified offences. He had no previous convictions for violence. The central issue was whether the facts of the index offence and the pre-sentence report could support dangerousness consistently with the jury’s provocation verdict.

1. Appeal allowed. The sentence of imprisonment for public protection was quashed and a determinate sentence of 12 years’ imprisonment was substituted.

2. The judge was correct that a verdict of manslaughter by provocation does not, as a matter of general principle, prevent a finding of dangerousness under section 225 of the Criminal Justice Act 2003. Manslaughter is a serious offence for the dangerous-offender provisions, and sentences for public protection had to be considered.

3. However, the sentencing judge was required to be faithful to the jury’s verdict. Whether the jury had affirmatively accepted provocation or the prosecution had failed to disprove it, the judge had to assume that the appellant lost self-control because of the deceased’s conduct and that the loss of control was reasonable in all the circumstances.

4. The appellant had no prior violent offending and no independent information supported dangerousness. The ferocity of the attack could not itself support the required assessment when it had to be viewed through the assumptions inherent in the verdict. The pre-sentence report also relied on matters inconsistent with those assumptions, including that the appellant had failed to consider alternatives, had acted disproportionately, had resorted to extreme measures, and had failed to consider the consequences. Reliance on that assessment therefore went behind the verdict.

5. There was accordingly no proper basis for finding a significant risk of serious harm from further specified offences. For resentencing, the court assessed the provocation as substantial and occurring over a short period, giving an eight-year starting point. The frenzied attack was severely aggravating, while remorse was the only mitigation. The appropriate determinate sentence was 12 years’ imprisonment, with credit for remand time.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence in [2012] EWCA Crim 136, quashed the sentence of imprisonment for public protection, and substituted 12 years’ imprisonment.
• Manchester Crown Court: Following conviction for manslaughter by reason of provocation, imposed imprisonment for public protection under section 225 of the Criminal Justice Act 2003 with a minimum term of six years less time served on remand.