Burinskas, R v

Following the abolition of imprisonment for public protection, Criminal Justice Act 2003 section 225 must be construed within the new statutory scheme. A life sentence remains a last resort, but it may now be justified where an IPP sentence would formerly have been imposed.

Under section 225(2)(b), the seriousness assessment requires consideration of the instant and associated offending, previous convictions, the level and likely duration of danger, and available alternatives. A life sentence cannot rest on public protection alone. Where life imprisonment is not justified, the court must consider section 224A and then an extended or determinate sentence. An extended sentence protects the public principally through its licence period, and sentencing courts must not reduce its custodial term to reflect early-release provisions.

This conjoined judgment concerned an Attorney General’s reference alleging undue leniency in Burinskas, and seven sentence appeals from Crown Courts. The cases concerned dangerous offenders convicted of serious sexual, violent and arson offences after amendments made by Legal Aid Sentencing and Punishment of Offenders Act 2012.

Six offenders had received life sentences and two had received extended sentences. The court considered the proper relationship between life imprisonment under sections 224A and 225 of the Criminal Justice Act 2003, extended sentences under section 226A, and the altered early-release regime. It then determined whether the individual sentences were justified.

1. Attorney General’s reference allowed; four sentence appeals allowed or allowed in part; three appeals dismissed. The court granted the Attorney General leave in Burinskas, held the extended sentence unduly lenient, and substituted life imprisonment with a six-year minimum term. It varied the sentences in Phillips and Coleman, and substituted extended sentences for the life sentences in Hanson and Smith. The appeals of Ahmad, Donegan and Mathews were dismissed.

2. The abolition of IPP fundamentally altered the context for section 225. Earlier authority distinguishing discretionary life sentences from IPP sentences was therefore of limited assistance. A life sentence remains a last resort, except where imposed under section 224A, but it will necessarily be imposed more frequently because there is no longer an alternative indeterminate sentence short of life imprisonment.

3. For section 225(2)(b), the court must assess the seriousness of the offence, alone or with associated offending, previous convictions, the level and likely duration of risk, and available alternative sentences. If the offender is dangerous and the statutory conditions are met, life imprisonment is mandatory. The inability to estimate when an offender will cease to be dangerous does not, by itself, make a life sentence justified.

4. The proper sequence is to assess dangerousness first. If life imprisonment is not justified under section 225, the court must consider whether section 224A requires it. If neither route requires life imprisonment, the court should consider section 226A and must not overlook a determinate sentence. An extended sentence is discretionary and protects the public through the extension period of licence, not through a custodial term exceeding commensurate punishment.

5. Except when fixing a life prisoner’s minimum term under section 82A of the Powers of Criminal Courts (Sentencing) Act 2000, early-release provisions must be left out of account. They do not justify reducing the appropriate custodial term of a new extended sentence. The court also held that a restraining order ordinarily serves no purpose where a life prisoner’s release conditions will be determined through the parole process.

6. The question whether a pre-accession conviction in Lithuania was a conviction “in a member state” for Schedule 15B was arguable but academic on the facts, and was left open. A victim surcharge was mandatory in Burinskas.

• Court of Appeal (Criminal Division): In Burinskas, the Attorney General’s reference was allowed and an extended sentence was replaced by life imprisonment. In Phillips, the minimum term was reduced and the restraining order quashed. The appeals of Ahmad, Donegan and Mathews were dismissed. In Hanson and Smith, life sentences were replaced by extended sentences. In Coleman, the extended sentence was reduced: [2014] EWCA Crim 334.
• Crown Court: The sentencing decisions under appeal were made in the Crown Court. No lower-court neutral citations were stated in the judgment.