Bennett v R.

For the original dangerous-offender provisions of the Criminal Justice Act 2003, the offender’s age at conviction, rather than at the offence, determines whether section 225 or section 226 governs the type of sentence. The domestic principle that a court should ordinarily take the sentence likely at the offence date as its starting point affects the length of custody. It does not alter the statutory sentencing regime.

Article 7 of the European Convention on Human Rights does not require a contrary construction where the relevant regimes were already in force and made the consequence of reaching the age threshold before conviction accessible and foreseeable.

Bennett v R. concerned an offender who was 17 when he committed arson but 18 when convicted and sentenced. At Wolverhampton Crown Court he was found dangerous and received detention for public protection with a minimum term of two years and 82 days.

After a substantial extension of time, he appealed against sentence. He did not challenge dangerousness or the minimum term. He contended that section 226, rather than section 225, of the Criminal Justice Act 2003 applied because of his age when offending, and that the sentencing judge should therefore have considered an extended sentence. The central issue was whether the relevant age was fixed at the offence date or conviction date.

1. Appeal dismissed. The sentencing judge had sentenced the appellant under section 225 of the Criminal Justice Act 2003, notwithstanding the erroneous Crown Court record sheet. That was the only regime lawfully available because the appellant was 18 when convicted.

2. Sections 225 and 226 use the expression that a person of the relevant age is convicted. Properly construed, that fixes the relevant age at conviction. The court respectfully agreed with Robson, [2006] EWCA Crim 1414. The heading to section 266 could not override the plain wording of the provisions.

3. The principle in Ghafoor, [2003] 1 Cr App R (S) 84, applies where an offender crosses an age threshold between offending and conviction. It ordinarily limits the appropriate length of custody by reference to the sentence likely at the offence date. It does not change the form of sentence or the statutory regime, which remains determined by age at conviction.

4. Neither section 3 of the Human Rights Act 1998 nor Article 7 required the court to substitute an offence-date test for the enacted conviction-date test. There had been no intervening change in the law. Both regimes were in force when the arson was committed, and their consequences were accessible and foreseeable. The European authorities relied on concerned materially different circumstances.

5. Once dangerousness was established, section 225 required detention for public protection. Since the sentence was lawfully imposed, the Court of Appeal could not revisit it. The court nevertheless expressed concern that prolonged post-tariff custody might impede rehabilitation, but held that release and any wider remedy were matters for the Parole Board, the Executive and Parliament.

• Court of Appeal (Criminal Division) — dismissed the appeal against sentence: [2019] EWCA Crim 629.

• Wolverhampton Crown Court — on 24 May 2007, imposed detention for public protection with a minimum term of two years and 82 days after finding the offender dangerous.

• Dudley Magistrates’ Court — on 8 November 2006, convicted the appellant of arson and committed him to the Crown Court for sentence.