Pedley & Ors v R

These cases have been listed together before us. They give rise to a similar double issue of general application, namely:

the proper construction of the ‘significant risk’ test created by section 225 Criminal Justice Act 2003 for passing sentences of imprisonment for public protection (“IPP”) or other indeterminate sentences; and

the compatibility of sentences passed according to that test with the European Convention on Human Rights.

In the case of Hamadi a quite separate question arises whether it is possible for this court to re-hear a concluded appeal against sentence.

We are also invited to determine on their individual merits the imposition of IPP sentences in each case; in that of Hamadi the merits arise only if his case can indeed be re-opened.

We are here concerned with section 225 of the Criminal Justice Act 2003 as it existed before its recent amendment by the Criminal Justice and Immigration Act 2008. As is well known, the principal effect of the amendments is to make the passing of IPP or other indeterminate sentences discretionary rather than mandatory, to remove the statutory assumption of risk, and to narrow the range of situations in which such sentences are available. But section 225(1), containing in section 225(1)(b) the ‘significant risk’ test, is unaffected by the amendments.

Both prior to and since amendment, section 225(1) provides as follows:

As the statute stood prior to amendment, if these two tests were met, a sentence of IPP was mandatory unless the case justified a life sentence. Now, these two tests remain essential pre-conditions to the passing of a sentence of IPP, but such a sentence is mandatory rather than discretionary, and moreover is available only if one or other of the new additional conditions set out in new subsections (3A) and (3B) is also satisfied.

For the purposes of section 225(1), a ‘serious offence’ is one of those listed in Schedule 15 and carrying a maximum sentence of 10 years or more. And a ‘specified offence’ is any offence listed in the schedule.

Importantly, ‘serious harm’ is defined in the statute, by section 224, as:

Identically worded ‘significant risk’ tests also govern the making of the other ‘dangerous offender’ sentences provided for by Chapter 5 of Part 12 of the 2003 Act: see section 226(1) (detention for public protection of persons under 18) section 227(1) (extended sentences for adults) and section 228(1) (extended sentences for those under 18).

For the defendants, Mr Fitzgerald QC submits:

that ‘significant risk…of serious harm’ should be construed to mean that serious harm is more likely than not to follow; alternatively

that ‘significant risk…of serious harm’ should be construed to mean that there must be a ‘high risk’ of serious harm, which he puts as meaning something of the order of 35-50% probability of it;

unless the statute is construed in one of those ways its provisions are not compatible with either article 3 or article 5(1) of the Convention, because the punishment imposed will be arbitrary and/or disproportionate.

Article 3 prohibits “torture or inhuman or degrading treatment or punishment.” Article 5(1) requires that “No-one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.” One of the permitted cases is “(a) the lawful detention of a person after conviction by a competent court.”

Mr Fitzgerald’s argument is that section 225(1), unless read as he says it should be, is incompatible with one or both articles because:

it imposes a threshold which is so low that the imposition of an IPP will in a number of cases amount to disproportionate punishment, constituting inhuman or degrading treatment; and/or

it imposes a threshold which is so uncertain that it results in arbitrary punishment, which contravenes the requirement of article 5 that punishment be in accordance with a procedure prescribed by law.

Mr Fitzgerald understandably stresses the nature of an IPP sentence. We agree that, as Rose LJ observed in Lang[2005] EWCA Crim 2864, [2006] 2 Cr App R(S) 3 at 13, (paragraph 8), an IPP has a great deal in common with a life sentence. Its justification is the protection of the public. It is indeterminate. Release depends on the judgment of the Parole Board as to the risk which the prisoner presents. The court must fix a minimum term before which release cannot be considered, calculated by reference to the hypothetical determinate term which would have been called for if the indeterminate sentence were not being passed. All those features it shares with a discretionary life sentence.

Nevertheless, the Act preserves, by section 225(2), the distinction between a discretionary life sentence and an IPP. This court held in Lang (paragraph 8) that the common law principles on which discretionary life sentences are imposed, as explained in the line of cases containing, among others, Hodgson (1968) 52 Cr App R 113, Attorney-General’s Reference No 32 of 1996 (Whittaker) [1997] 1 Cr App R (S) 261 and Chapman [2000] 1 Cr App R 77, continue to apply. In effect a discretionary life sentence is justified only where the instant offence is particularly grave and the future risk is of particularly grave harm. As Lord Bingham observed in Lichniak[2003] 1 AC 903 at paragraph 14, in the context of a mandatory life sentence for murder, the life sentence has a denunciatory value. And there are at least two formal differences between the two sentences. In the case of an IPP the Parole Board may direct that supervision under licence shall come to an end 10 years after release; in the case of any life sentence, supervision remains lifelong. And in the case of a life sentence (but not an IPP) it is open to the court if, very exceptionally, necessity for such an order be shown, to make a whole life order, directing that the early release provisions shall not apply: s 82A(4) & (4A) Powers of Criminal Courts (Sentencing) Act 2000.

We agree with Mr Fitzgerald that the nature of an IPP sentence must be kept in mind when assessing whether the risk for the future is significant. This is an indeterminate sentence. Its justification is, by the statute, grounded in the necessity to protect the public not simply from re-offending, which sadly is often a fact of life, but from serious harm being caused by the defendant in the future. The requirement that there must be a significant risk not only of re-offending, but of harm that can properly be called serious, must not be watered down. That emerges very clearly from the practical advice to sentencers contained in paragraph 17 of Lang, all of which we re-endorse.

The question whether the risk of serious harm is, in any individual case, significant so as to justify an IPP sentence, is highly fact-sensitive. It must remain a decision for the careful assessment of the judge before whom the case comes. He will need to consider all the information he has about the defendant: see section 229 and Considine and Davis[2007] EWCA Crim 1166; [2008] 1 Cr App R (S) 41. The focus is, as explained in Johnson[2006] EWCA Crim 2486; [2007] 1 Cr App R (S) 112, not principally upon the facts of the instant case but upon future risk.

All the parties before us agreed that in addressing the question whether the risk of serious harm is significant the Judge is entitled to balance the probability of harm against the nature of it if it occurs. The harm under consideration must of course be serious harm before the question even arises. But we agree that within the concept of significant risk there is built in a degree of flexibility which enables a Judge to conclude that a somewhat lower probability of particularly grave harm may be significant and conversely that a somewhat greater probability of less grave harm may not be.

We do not, however, agree that it follows that there is any justification for attempting a re-definition of the plain English expression ‘significant risk… of serious harm”. There is no occasion to re-write the statute as Mr Fitzgerald invites us to do. In Lang (at paragraph 17(i)) this court noted that the dictionary definition of ‘significant’ is “noteworthy, of considerable amount or importance”. That was not to substitute a different expression for the statute, but was and remains a helpful indication of what kind of risk is in issue.

In particular, it is wholly unhelpful to attempt to re-define ‘significant risk’ in terms of numerical probability, whether as ‘more probable than not’ or by any other percentage of likelihood. We doubt very much that the probability of future harm is capable of numerical evaluation. No attempt should be made by sentencers to attach arithmetical values to the qualitative assessment which the statute requires of them. Such would, moreover, be inconsistent with the degree of flexibility inherent in the word ‘significant’ to which we have adverted in paragraph 17 above. At one stage in his submissions Mr Fitzgerald contended that ‘significant risk’ was being found in cases where there was no more than a 20% probability of serious harm. We are unaware of any sentencer expressing a sentence in any arithmetical terms, never mind those, and very much doubt that it has ever occurred.

Nor do we think that there is any suggestion of such an approach to be found in a passage in Johnson (supra) to which our attention was drawn. In the course of the judgment, Sir Igor Judge P (as he then was) said this at paragraph 9:

If that sentence were to be read to mean that a significant risk of serious harm is established in any case where the risk is more than negligible, it would be being read out of context and wholly misunderstood, as a simple reading of the whole paragraph shows. This court was there addressing the thrust of its decision, which was that the test for the imposition of an IPP is not principally concerned with the instant offence (providing it is a serious specified one), but is about future risk. In particular, it was addressing the commonly advanced submission that because the defendant has not yet caused serious harm, it necessarily follows that there cannot be a significant risk that he will do so in future, and thus that offences which did not cause serious harm should be ignored. That commonly made submission is wrong. The history thus far is of course very relevant, but is not conclusive; it is only part of the assessment. The court was dealing with the argument that an earlier case, Shaffi[2006] EWCA Crim 418, had supported this commonly made (but erroneous) submission. Whether or not the word ‘negligible’ derived from the argument advanced to the court, that is clear from what was said immediately after the sentence to which we have been taken. The passage concludes:

We are quite satisfied that a sentence of IPP imposed when the judge is satisfied that the defendant poses a significant risk of serious harm to the public is wholly compatible with both article 3 and article 5(1)(a). Mr Fitzgerald did not suggest that there was any Strasbourg decision which assisted him in his submission beyond the propositions that articles 3 and 5 might be infringed by disproportionate or arbitrary punishments. Certain it is that the European Court of Human Rights has consistently held that a life sentence does not infringe either article if properly grounded in the risk to the public and certainly if it carries with it a regime under which the minimum term is directly linked to the instant offence and thereafter the prisoner will be released if no longer a danger: see for example Stafford v UK(2002) 35 EHRR 1121 and V v UK(1999) 30 EHRR 121. Indeed under the Convention, States have a duty to take measures to protect the public from violent crime. In Offen [2001] 1 WLR 253 this court held specifically that an indeterminate sentence complied with the Convention providing that it was grounded upon a significant risk of serious harm being caused by the defendant to the public. That is precisely the test adopted under section 225. In Lichniak (supra) the House of Lords held that the mandatory life sentence for murder was also compatible. There is no question of the threshold being so low that the punishment is disproportionate. On the contrary it is proportionate to the risk of serious harm, particularly since when the tariff sentence attributable to the instant offence has been served, the system provides for release once that significant risk no longer exists. Any sentence of IPP is closely controlled by law and can be imposed only in accordance with the statute. That each case must be determined upon its own facts, and an individual judgment made as to the presence or absence of significant risk of serious harm, does not mean that the sentence is too uncertain to comply with article 5(1).

For all these reasons we reject the submissions that the significant risk test requires re-definition.

Hamadi was sentenced to IPP after conviction of rape on 8 December 2006. He appealed against his sentence. He challenged both the finding that he presented a significant risk of serious harm and the notional determinate sentence which formed the basis of the minimum term. This court heard his appeal, at which he was represented by leading counsel, in December 2007 and gave a reserved judgment on 18 December. Its decision was that the finding of significant risk, and thus the sentence of IPP, was proper, but that the notional determinate term was too long; it thus reduced the minimum term.

Thereafter, Hamadi sought from the court a certificate that a point of law of general public importance was involved in its decision, namely whether the significant risk test was compatible with the European Convention on Human Rights. But this point had not been argued in any manner in the appeal in this court. Whether in those circumstances it could properly be said that this point was “involved in the decision” (section 33(2) Criminal Appeal Act 1968) it is not necessary for us to determine. Although this court was persuaded to certify the point, the House of Lords declined to give leave on the grounds that it had not been argued below.

As it has turned out, we have now considered the certified question in the cases of Pedley and Martin and have resolved it against the new argument which Mr Fitzgerald would wish to develop in Hamadi’s case. But we should, we think, deal with the application to re-list. We understand Mr Fitzgerald to wish to ask us to re-consider the merits of the IPP sentence, even on the existing significant risk test. And there might be an attempt to take the case further.

There exists a very limited power in this court to re-hear an apparently concluded appeal. It is a power to re-list where by administrative error or otherwise the appellant has been deprived of a proper hearing, so that the apparently concluded appeal can properly be described as a nullity, including cases where the court failed to follow the rules or well established procedure: see Pinfold (1988) 87 Cr App R 15, Grantham(1969) 55 Cr App R 369, Berry[1991] 1 WLR 125 and Rowan[2007] EWCA Crim 1624. An example of the second situation is Daniel [1977] QB 364 where the court dealt with a renewed application without being aware that counsel was instructed to appear and thus without hearing him.

In the present case there is no question of this exception applying. If this case were to be re-listed it would simply be because counsel has had second thoughts and in order to allow him to argue a point not taken when the appeal was fully heard. Indeed, to the extent that it is desired to re-visit the merits of the IPP on the existing significant risk test, it would be to re-argue exactly the same point as was argued previously, and which the court decided against the appellant. The jurisdiction to do either does not exist, and should not exist. If it did, every disappointed appellant could seek a second hearing or, it may be supposed, a third or a fourth. That is especially so now that, if there should be a genuine case of injustice, the CCRC has the power to refer a case back.

Pedley was 24 when he committed an armed robbery with three other men. The target was a security van making a cash collection from a petrol station in ordinary working hours. Pedley carried a loaded .38 Magnum revolver. He pointed it at the security guard who was out of the van and ordered him to drop the cashbox he was carrying. He then took hold of him with his other hand, dragged him to the van and, thus holding him at gunpoint, demanded that money in the van be passed out by the other guard inside. Some was. It was not enough to satisfy Pedley, who reinforced his demand by firing the gun in the air, still holding the guard at the time. It was about 2.30 in the afternoon; there were customers of the garage and passers-by about. The robbers had come to the robbery in a stolen car and disguised by balaclavas. They made off at speed to a place where a second-stage getaway car was ready, set fire to the first car, and drove at high and dangerous speeds in their escape until eventually cornered, whereupon their car crashed into a police car.

Pedley had been convicted previously on 11 occasions. There was no conviction for violence, nor for any specified offence. He had, however, two convictions for dangerous driving, as well as for separate aggravated takings, and one for burglary of a shop by ram raid, it would appear likely at night. He had previously served six custodial sentences. The Judge had no other information about him. The case had previously been put back for the preparation of a pre-sentence report, but such had not been prepared and the Judge was encouraged on his behalf to deal with the case without it.

The Judge dealt with this case in the early days after the commencement of the Criminal Justice Act 2003, and before the guidance given by Lang. He passed a sentence of IPP, with a minimum term calculated by reference to a notional determinate term of 10 years. He passed IPP sentences on the other defendants also; they had relevant previous convictions for specified offences including robbery and two of them faced another indictment for a similar security van robbery, albeit with iron bars and a circular saw rather than a gun. He said this:

We were concerned that there had been no pre-sentence report. As this court was to say in Lang, there ordinarily should be a report before an IPP sentence is passed, unless of course the point is conceded. Moreover, section 156 Criminal Justice Act requires such a report before an indeterminate sentence is passed, unless the Judge considers it unnecessary. If such is not obtained, then on appeal this court is under a duty to obtain a report unless it concludes either that the Judge was right to decide it was not necessary or that it is not now necessary. We thought it right to call for a probation report in order to apply our minds afresh, even at this distance in time, to the propriety of an IPP and have now received a full recent report.

Mr Fitzgerald’s contention is that the Judge was not entitled to reach his conclusion solely on the basis of the single offence of robbery. We do not agree that that was all that there was in this case. If the criminal record of the defendant suggests that he is an acquisitive criminal, that may lead to the conclusion that there is a significant risk that he may rob someone else. If he is the kind of robber who is willing to use, on such a robbery, not just a gun but a loaded one which he is ready to discharge, that may well lead to the conclusion that there is significant risk that someone may get shot, whether because he or she is deliberately aimed at or not. And if he has a record for reckless and dangerous behaviour, that may reinforce that conclusion. Although, according to the rather formal tools necessarily utilised by the probation officer, his risk of re-offending and of causing ‘harm’ (sic) are both assessed as ‘medium’, that cannot determine the issue. The body of the report, which is factually and neutrally expressed, shows a clear basis for a finding of significant risk of serious harm. Whilst Pedley now expresses remorse which appears to be genuine, he still unrealistically minimises what he did; he contends that the gun was pointed in the air and not at the head and that it went off by accident. He has a significant history of disruptive and risk-taking behaviour, from that which called for expulsion from school onwards. He was at the time an associate of a notorious Birmingham gang with an unenviable group record for violence and other serious crime. This was a well-planned professional security van robbery. Pedley had not done anything so serious before but the ram raid and robbery together suggested the real risk of further acquisitive offending reinforced by considerable danger and the repeated dangerous driving was a further clear sign of reckless disposition. The Judge was perfectly entitled to conclude that he presented a significant risk of causing serious harm by the commission of further specified offences. It follows that his application for leave to appeal against sentence must be refused.

Martin pleaded guilty to two counts of engaging in sexual activity in the presence of a child under 13, contrary to section 11 Sexual Offences Act 2003. Those counts were specified and serious offences for the purposes of an IPP. He also pleaded guilty to 19 other offences of outraging public decency, which are neither serious nor specified. He was a man of 41. He had no relevant previous conviction, but a substantial volume of evidence, and several reports, revealed that he had a sexual obsession of some years’ standing. He fantasised about little girls. From his home were recovered diaries which spoke in unpleasant terms of his sexual fascination with young girls, dolls with which it appeared he would have sexual intercourse and underwear for very young girls. Although those materials revealed a deeply unpleasant obsession, it had remained entirely private for some years. However, over a period of about three months in the summer of 2005 he had developed the habit of driving about until he found young girls to watch, for example outside a school or supermarket, and then masturbating in his car. He would video record what he did. He also filmed some of the girls he was watching, and he recorded his commentary as if directed to the children, which made clear his excitement. On some occasions he was deliberately exposing himself to the girls, and some clearly saw him and what he was doing. On several, he shouted at the girls, asking to see their private parts. On only one occasion did he get out of the car; he continued to masturbate but did not approach the girls whom he was watching. However, on two occasions at the end of the period of offending he approached girls, one aged about eight and two more aged about fourteen, and offered them money to be photographed by him; on those occasions he was not masturbating or indeed exposing himself. Those incidents led to his arrest.

When cautioned he said “I thought I was in remission; I want to stop this”. The several reports before the Judge, however, indicated that he had a narcissistic and anti-social personality disorder with considerable delusions of his own grandeur, that his obsessions were well established, and that although he certainly needed therapy, he would be very difficult to manage in it. It followed that there was undoubtedly a considerable risk that having been caught would not necessarily deter him from continuing his behaviour.

The Judge passed a sentence of IPP on the two specified offences. The minimum term was based upon a notional determinate term of three years. The common law offences of outraging public decency, although laid in relation to similar behaviour, could not attract such a sentence and the Judge imposed no separate penalty upon them.

The Judge analysed the case with considerable care. We pay tribute to the clarity of his reasoning. He correctly recognised the two-stage question which he had to answer. His conclusion that there was a significant risk of further offending cannot be faulted. On the material before him he was entitled to conclude, as he did, that there was a significant risk that the defendant’s behaviour would escalate to an extent; it had thus far progressed from purely private fantasies to public exposure and masturbation to two approaches to children with a request to take photographs. It is, however, of great importance to note that he held that it could not be said that there was a significant risk of death or serious personal injury. He did not accept that there was significant risk of violent sexual offences. It follows that his sentence of IPP rested upon his conclusion that there was a significant risk of serious psychological harm. He decided that that risk existed in the event of there occurring further offences the same as thus far committed, as well as if the offending behaviour escalated but remained short of contact offences.

This was a very difficult case, complicated by the unpleasant nature of the defendant’s fantasies. The Judge was careful to eschew a sentence grounded simply in reaction to that unpleasantness. But was he right to say that there was a significant risk of serious psychological harm? Firstly, none of those who had thus far seen such behaviour had complained. The girls whom he had asked to photograph had been sufficiently disturbed by the approach to make a sensible report of the incident to their parents. But that does not conclude the question, for all the reasons set out in Johnson. There is plainly some risk that a persistent exposer of himself who targets very young girls and masturbates in front of them, and who may call to them or try to get them to approach his car or wherever else he is, may occasion in one of them a serious psychological reaction. But it seems to us that it is impossible to say that it is a significant risk, sufficient to call for the application of an indeterminate sentence. The approach is demonstrated by one of the cases considered in Lang (Carasco) which although not identical to the present was of a repetitive minor sexual offender. There, the defendant habitually assaulted women, some young, in public, when drunk. His offences were of touching them in intimate places. He had eight previous convictions for doing so and short sentences of imprisonment had not deterred him. This court held that a sentence of IPP could not be upheld; such repetitive minor offending did not justify a conclusion that there was a significant risk of serious harm. That defendant did not have the complicated fantasies which this defendant had, but unlike this man he was a habitual contact offender. There must have been in that case also some risk that a victim might suffer serious psychological harm, but there, as here, that risk was simply not sufficient to bring the case within the indeterminate sentence grounded on the need to protect the public from serious harm: it was not a significant risk.

We must quash the sentence of IPP. The single judge gave leave. We allow the appeal, and substitute sentences of three years imprisonment upon counts 6 and 17. We pass identical concurrent sentences upon all the other counts, which represented similar behaviour. The time spent in custody prior to sentence (304 days) will count towards that sentence.

The risk of future offending calls for preventive steps, albeit not for indefinite imprisonment. If this man had appeared for sentence prior to the commencement of the Criminal Justice Act 2003, the obvious sentence would have been an extended sentence passed pursuant to section 85 Powers of Criminal Courts (Sentencing) Act 2000. That would have had the effect of prolonging his licence, and thus careful supervision, after release, in order to take steps to deter him from prowling the streets in search of girls to watch and to whom he could expose himself. That sentence, unlike the similarly named but quite different extended sentence under the 2003 Act, did not depend upon there being shown to be a significant risk of serious harm; it was enough that an extended period of licence was needed to prevent the commission of offences (with or without serious harm) and to secure the rehabilitation of the defendant. Sadly, that very useful sentence, tailor-made for defendants such as the present, was removed from the judicial armoury by the 2003 Act. Its restoration would be a significant improvement in the ability of courts to exercise sensible control, without the sledgehammer of indefinite imprisonment, over worrying persistent sexual offenders whose behaviour falls short of carrying a significant risk of serious harm.

As it is, we are in a position to make a Sexual Offences Prevention Order under section 104 Sexual Offences Act 2003. The test for the making of such an order is different from that for the making of an IPP (Richards[2007] 1 Cr App R (S) 120) and it was common ground before us that an order is appropriate. We make it until further order; that is to say that its duration is indefinite. Its terms will prohibit the defendant from:

seeking the company of, or being in the company of, any female under the age of 18 in the absence of her parent or guardian save with the prior authorisation of the officer of police appropriately delegated by the Chief Constable for the area in which he lives; this prohibition shall not apply to incidental contact with such a female in the ordinary course of legitimate actions such as shopping, travelling on public transport or the use of a public restaurant;

entering or remaining in any school, child nursery or other building used for the purpose of the activities of females under the age of 18;

inviting or allowing any female under the age of 18 into his home in the absence of her parent or guardian, save with the prior authorisation of the officer of police appropriately delegated by the Chief Constable for the area in which he lives;

undertaking or seeking any employment or activity, whether voluntary or paid which is by its nature likely to bring him into contact with females under the age of 18 in the absence of their parent or guardian;

having outside his place of residence any photographic equipment or other technology capable of capturing an image.

If the defendant should turn out to be able to demonstrate that he can now control his sexual deviancy to the point where he is no longer at risk of committing offences in public, it will be open to him to apply to discharge this order. Unless and until it is discharged, if he disobeys it he will commit an offence, whether or not he commits any other, and will be liable to imprisonment for up to 5 years.

The Judge’s order prohibiting the defendant from working with children indefinitely will stand. As a consequence of his conviction and sentence, the defendant is subject to the extensive notification requirements of sections 80-88 Sexual Offences Act 2003, also indefinitely, and will commit an offence carrying up to 5 years imprisonment if he disobeys them.