These two appeals were heard together as they raised issues as to the evidence or other information which a sentencing court and this court should receive and take into account when the issue of dangerousness is being considered for the purposes of imprisonment for public protection under the Criminal Justice Act 2003 (CJA 2003). Rehman was sentenced under the unamended provisions of the Act in 2006, but, as he was only 17 at the time, the judge had a discretion whether to impose the sentence; Beesley and Coyle were sentenced in July 2009 under the provisions as amended by the Criminal Justice Act 2008. It is necessary to explain how these appeals arose before turning to the issues raised.

On 25 February 2008 a 21 year old man, Lilley, was severely injured in a flat in Mitcham, South London, by the appellant Coyle, the appellant Beesley and a third defendant, Cotter. He died four days later from those injuries. They were charged with his murder. On the first day of the trial, just before the jury were empanelled, the Crown accepted pleas to manslaughter. They were each sentenced on 23 June 2009 by HH Judge Worsley at the Central Criminal Court to imprisonment for public protection; a period of eight years less time on remand was specified for each. Coyle and Beesley appeal against sentence with the leave of the single judge.

It appears that the deceased, Lilley, was asked by Beesley to go to the address in Mitcham. He arrived about 7 p.m. in a mini cab; he told the driver he was meeting a friend and would be no more than 5 minutes. He went to a flat which belonged to Cotter. There Cotter, Beesley and Coyle were waiting for him. Once he was inside the flat, Lilley was attacked. He suffered a number of injuries, including a deep stab wound to the leg, linear cuts to his face and his ear was severed. About 10 minutes later Lilley stumbled down the stairs from the flat drenched in blood. The emergency services were summoned and he was taken to hospital. He died four days later from a series of complications brought about by his injuries. The actual cause of death was, on the medical evidence, a deep stab wound to his left thigh which struck a major blood vessel, causing massive blood loss and this in turn led to cardiac arrest.

When the police arrived at the flat, Cotter was still at the flat trying to remove the blood; in interview, he gave an account that he had been inside the flat when two men he refused to name attacked the deceased. The deceased’s severed ear was found in the rubbish in the kitchen. When Coyle and Beesley were arrested, they made no comment interviews.

At an initial hearing of this appeal, it was not clear to this court on what basis the plea to manslaughter had been accepted, as there was no written basis of plea. At our request, therefore, counsel for the Crown and for the appellants set out for us what had happened in notes provided to the court. From those notes and assistance given by counsel in the course of the appeal, it appears that the basis upon which the pleas to manslaughter were accepted were as follows:

It was never the Crown’s case that any of the appellants intended to kill the deceased.

The Crown was not able to attribute a precise motive to the offence except that it was to be a punishment attack. The deceased had been lured to the flat. The Crown had put forward an explanation that the appellants had sought a meeting with the deceased in relation to some kind of debt. Beesley and Coyle provided an explanation recorded by the writer of the pre-sentence reports that Lilley had sexually assaulted and harassed Cotter’s partner. Beesley had talked about this with Cotter and Coyle and, as he had known Lilley since they were 11, he had asked him to meet at Cotter’s flat. That account was shown to be false by a statement taken from Cotter’s partner.

The injury to the leg which led to the death was not inflicted with the intent to cause really serious bodily injury. The deceased had been tortured prior to his death; he had been held in a restrained position while the linear cuts were made to his face and his ear cut off by controlled and deliberate action.

No separate count under s.18 of wounding with intent in respect of the severance of the ear was preferred. This is because the case was originally charged and indicted as an allegation of joint enterprise murder. It emerged in the discussion before this court that when the plea to manslaughter was accepted the case should proceed on the basis that no count should be added to reflect the severance of the ear. The case therefore proceeded on the basis that there was no count to reflect the deliberate severance of the ear.

Beesley was born on 8 October 1985 and was 22 years old at the time of the offence. He had two previous convictions for violence – assaulting a police constable in 2007 and assault occasioning actual bodily harm in 2007 committed with Coyle for which he received 20 months imprisonment. Whilst in prison, Beesley received a number of adjudications including two for assault on staff. It was Beesley’s case as put to the judge in mitigation that he had contacted Lilley and asked him to meet him at Cotter’s flat. He did not rely on the explanation we have set out above that Lilley was lured there to discuss allegations of sexual abuse against Cotter’s partner or on the detailed, but contradictory and inconsistent, account he gave about the attack on the deceased to the writer of the pre-sentence report. The pre-sentence report writer considered that his behaviour in prison showed he was violent and aggressive to staff, and although his OASys assessment showed that he had a medium risk of reconviction, the writer thought that, given the pattern of offending in prison and in the community and the nature of the offence for which he was to be sentenced, the risk of reoffending and of causing significant physical harm was high.

Coyle was born on 5 December 1984 and was 23 at the time of the manslaughter and had three previous convictions, one of which was under s.20 of the Offences Against the Person Act 1861 committed in 2004 but for which he was not sentenced until 2008; the other was assault occasioning actual bodily harm committed with Beesley in 2007 for which he received 10 months imprisonment. It was Coyle’s case put to the judge, on the basis of what he had said to the writer of his pre-sentence report, that he had been there to provide back-up to the others when Lilley was confronted; he accepted that violence was planned, but not as serious as occurred. As none of the others was prepared to identify the actions of any of the others, there was, it was submitted, nothing to contradict his account that he was there to provide back-up and played a secondary role. The writer of the pre-sentence report concluded that, although the OASys assessment showed that he had a medium risk of reconviction, the risk of harm posed by him was likely to be serious and was escalating; his pattern of offending had demonstrated that he was willing to plan acts of violence with others, including violence with the use of a weapon as had been used against Lilley.

Apart from the pre-sentence reports, no other reports were before the court.

The judge sentenced the appellants on the basis that it was a very grave offence of manslaughter with a considerable degree of pre-meditation. Each had decided that painful punishment was to be inflicted upon the deceased. He was lured to the flat. The deceased was subjected to torture by the use of a knife. When he fled from the flat it was obvious he was in need of medical attention but none of the appellants had summoned an ambulance. Each then made a determined attempt to clean the flat of all traces of the attack, disposing of the weapons and the severed ear. In the light of their previous convictions and information contained in the pre-sentence report he considered that each was dangerous.

The judge allowed a credit of 10 per cent for their late plea; he took into account their youth; he accepted that they showed remorse by their plea. He concluded that after trial the appropriate determinate sentence would have been 18 years, reducing it to reflect their plea to 16 years. He considered that their responsibility was joint.

Beesley initially conceded in the grounds of appeal submitted on his behalf that the imposition of a sentence of imprisonment for public protection was not wrong in principle but appealed against the length of the minimum term. Coyle appealed on the basis that the judge erred in concluding that he was dangerous and therefore a sentence of imprisonment for public protection should not have been passed; he also appealed against the length of the minimum term.

In early 2010 Beesley sought to amend the basis of his appeal. His family had, through solicitors, instructed Dr Art Anderson, a chartered clinical psychologist. He saw Beesley at Whitemoor on 9 February 2010 and conducted an assessment interview, observation and testing. The tests employed were the Bender Gestalt Forms Test, Machover Draw a Person Test, Mental Status Examination, Minnesota Multiphasic Personality Inventory (MMPI-2) and the HCR 20 Risk assessment. His report of 19 February 2010 set out his view that the Mental Status Examination and MMPI-2 showed Beesley had some level of control over his aggressive tendencies; his offending had been reactive; he had no psychologically aggressive components to his offending. He had no personality disorders or psychopathy or indication of antisocial or borderline personality disorders. He had victim empathy. The HCR-20 Risk assessment showed that he was at the high end of low risk. The writer of the pre-sentence report had not taken into account a number of protective and mediating factors, including his relationship with his family, his 2 children, his avoidance of drugs and his achievement in boxing. Furthermore, the level of risk set out in the pre-sentence report was wrong; he did not have a high risk, though he did represent a risk to members of the public which he described: “This level of significant risk to the public is at present in the high end of low risk to medium risk”. Beesley needed course work to help him deal with a loss of control that could occur when he became angry. That report was relied on in support of the argument that the sentence of imprisonment for public protection was wrong in principle.

The matter came before this court on 12 March 2010. When Mr Carter Stephenson QC, who appeared for Beesley, sought to rely upon the evidence of Dr Art Anderson, it became clear that more time was needed than that which had been allocated and an issue arose as to whether the report of Dr Anderson was receivable on the appeal and, if so, whether the conditions of s.23 of the Criminal Appeal Act 1968 had to be satisfied. The case was adjourned and re-fixed for hearing.

Prior to the hearing of the appeal, the Crown instructed Dr Susan Young, a chartered clinical and forensic psychologist. Her report dated 9 March 2010 which was served on the appellant concluded that although the MMPI-2 test results were within the normal range, the conclusions that Dr Anderson had drawn were highly speculative and without empirical substance; her conclusion from Beesley’s behaviour was that he had an aggressive demeanour, was provocative and initiated violent acts; there was no evidence he had been provoked by victims in the past. No attempt had been made by Dr Anderson to reconcile the results with Beesley’s past behaviour and ongoing aggression in prison for which he had received numerous adjudications. She considered that a PCL-R assessment would be necessary to determine whether he had psychopathic traits or a disorder. The HCR-20 test was well recognised, but of limited value as Beesley did not have any history of mental health problems. She considered that the pre-sentence report which drew on a much wider pool of information was more valuable. The tests conducted by Dr Anderson did not make any reliable and valid contribution to the assessment of dangerousness.

Dr Anderson responded in a report dated 10 March 2010; he criticised her expertise in the evaluation of psychometric instruments; her views on the relative values of the tests were not correct.

On the hearing of the appeal, Dr Anderson was present; although, through error, Dr Young was not present. We decided we would hear the evidence of Dr Anderson de bene esse and consider, in the light of that evidence, whether it was necessary also to hear Dr Young.

Dr Anderson in his oral evidence amplified the opinion set out in his two reports. He explained to us his views about the tests that he had used in his assessments and why in his view the tests showed the risk was at the high end of low. He considered that if the tests had been carried out at the time of sentence, then there would only have been a slight difference as risk would have gradually lessened during his time in custody. He made clear that Beesley suffered from no mental illness or personality disorder. He also amplified his evidence on what he described as the longstanding personality traits which acted as protective and mediating factors against aggressive behaviour. However, as became clear during his cross-examination, it was his view that those mediating and protective factors were present at the time of the offence; he accepted they had not acted to prevent the offence against Lilley. He also accepted, as he had set out in his report, that there was a significant risk of violence.

In our judgment it was not necessary to hear from Dr Young for we have concluded, for the reasons we set out at paragraph 42, the assessment of Dr Anderson, if given at the time, would not have affected the imposition of a sentence of imprisonment for public protection. We therefore express no view on the disagreement between Dr Anderson and Dr Young about the utility and value of the various methods of assessment used by Dr Anderson.

On 5 December 2006, the appellant Rehman who was born on 24 June 1989 pleaded guilty to possession of a firearm with intent to cause fear or violence and unlawful wounding. He was sentenced to detention for public protection for the offence of possession of a firearm with a period of 15 months less time on remand being specified as the minimum term. He applied for leave to appeal within the requisite period. That was refused by the single judge in 2007 on the basis that there was ample evidence for the imposition of a sentence of detention for public protection.

In June 2010, an application was made to the court to renew the application for leave to appeal against sentence relying, essentially, upon the progress he had made whilst he was in custody and the reports of Dr Sinéad Marriott, a chartered clinical psychologist, dated 31 January 2009 and 5 February 2010. Before turning to those reports, it is convenient to set out the facts of the offence and the way he was dealt with originally by the judge.

On 2 August 2006 Rehman appeared before St Albans Magistrates for possession of cannabis. After his appearance he was picked up by a friend, Chowdhury. He arranged through another friend that he would meet the complainant Uddin who owed Rehman about £250 for drugs that had been bought for their joint use. Rehman went to the meeting with Chowdhury who told him on the way that he had an air gun if Rehman wanted to frighten Uddin with it; he told Rehman it was unloaded. When they got to the place for meeting, Rehman got out of the car and had an argument with Uddin. He found that Uddin had no money on him. Rehman then took from Chowdhury the gun and pointed it at Uddin and pulled the trigger. The gun was, in fact, loaded and a pellet struck Uddin on the cheek just below his eye. Before pulling the trigger he had not checked whether it was loaded. Rehman told Uddin he was very sorry for what he had done and did not mean to do it. Uddin was taken to hospital where the pellet was removed from his cheek; he had a permanent scar and lost the feeling under his eye. Rehman was arrested a few days later. He handed over to the police the case in which the gun had been kept.

On 12 January 2007 Rehman appeared before His Honour Judge Morris QC at the Central Criminal Court. At that hearing the judge had a basis of plea which we have reflected in the account of the facts we have set out and a pre-sentence reported dated 28 December 2006, together with Rehman’s previous convictions. Rehman at the time was 17 years of age. He had a number of serious previous convictions, including an attempted robbery in August 2003 and two counts of street robbery in July 2004. He also had a conviction for the possession of an imitation firearm in September 2005; the facts of that case were that staff at MacDonald’s thought it was a real gun which he was pointing around and from which he was firing plastic pellets; an armed police response unit had been sent. He also had drug offences. The conclusion of the writer of the pre-sentence report was:

The judge, taking into account the previous convictions and the circumstances of the offence for which Rehman appeared, concluded that he was satisfied there was a significant risk of death or serious injury caused by Rehman committing further specified offences. He did not consider an extended sentence to be adequate to protect the public. He therefore passed the sentence to which we have referred.

Rehman was held at Feltham until 11 April 2007 when he was transferred to Ashfield and then to Portland. He was refused release on parole by the Parole Board on 10 October 2009, but released on 10 March 2010 after a further hearing.

The only report in relation to his time at Feltham was a letter from an officer in the offender management unit which commented on his constructive attitude. Dr Sinéad Marriott who was instructed on behalf of the Howard League for Penal Reform first saw him at Ashfield in December 2008. She reviewed his OASys assessment, used the Structured Assessment of Violence Risk – Youth Version (SAVRY) and a Violence Risk Assessment Guide (VRAG); she concluded that at the time of her assessment Rehman posed a minimal risk of causing harm. He had made good use of his time in custody. She saw him again briefly in November 2009 (when a Parole Board hearing did not proceed) and at Portland on 25 January 2010 for her second report. Her second report sets out the progress he had made – he had no adjudications, had remained drug free, maintained his high standards of behaviour and completed further courses. She considered that he had demonstrated that he could move away from negative associations and posed minimal risk.

At a hearing before the Parole Board on 19 February 2010 Rehman spoke for an hour about what he had learnt in custody. On 1 March 2010 the Parole Board determined that he had made considerable progress, that his risk had greatly reduced and he could be released on licence.

The appeal was presented eloquently and with considerable diligence on his behalf by Miss Felicity Williams on the basis that the evidence that was before the Parole Board showed that he had not been dangerous within the meaning of the CJA 2003 at the time of his sentence and so the court should quash the sentence of detention for public protection.

This was supported by a further report from Dr Marriot who stated at the time she first met him in December 2008, her judgement was that he posed a minimal risk of causing harm to life or limb and that risk could be managed in the community. She considered he had made “excellent use of his time in prison and had genuinely learnt from his mistakes and changed the way he deals with stress and frustration.” Rehman also relied on the decision of the Parole Board and the Post Programme Reports for the Enhanced Thinking Skills (ETS) programme and a letter of 16 December 2009 from the manager of the Prisoners Addressing Substance Related Offending Group (PASRO); both made clear Rehman’s commitment to a crime and drug free life after his release.

In Lang [2005] EWCA Crim 2864, [2006] 2 Cr App R(S) 3, the then Vice-President of the Court, Rose LJ, set out the factors that a judge should take into account in determining dangerousness for the purpose of the CJA 2003 by assessing whether there was a significant risk to members of the public of serious harm occasioned by the commission by the defendant of further specified offences. The court stated at paragraph 17

It is very clear from the Guidelines of the Sentencing Guidelines Council on “Dangerous Offenders and Overarching Principles – sentencing youths” and from decisions of this court such as, R v G [2007] 2 Cr App R (S) 32, R v Dee [2006] EWCA Crim 1635, R v Puckey[2008] EWCA Crim 2326 that a court must apply with particular care the dangerousness provisions.

In assessing dangerousness the trial court is not restricted to evidence by the express terms of s.229; the section refers to information. As was pointed out by Sir Igor Judge when giving the judgment of a 5 judge court in Considine and Davies[2007] EWCA Crim 1166:

It is frequently the case that this court will admit on an appeal what is fresh information without formally requiring the conditions in s.23 of the Criminal Appeal Act 1968 to be satisfied. In Roberts [2006] EWCA Crim 2915[2007] 1 WLR 1109, the court set out at paragraph 44 how flexible the approach of the court was to the admission of further material in relation to sentence:

In R v Hughes [2009] EWCA Crim 841 and [2010] EWCA Crim 1026, an appellant sought to call evidence to show that a hospital order should have been made at the time of sentence and an indeterminate sentence should not have been imposed. At the first hearing which was concerned with the jurisdiction of the court to hear such an appeal where there had been a reference by the Attorney General, Hughes LJ in giving the judgment of the court directed there be application for fresh evidence; on the hearing of the substantive appeal before the Lord Chief Justice, the court held that the requirements of s.23 were met (see paragraph 19).

A court cannot make a hospital order without evidence from suitably qualified medical practitioners – see s.37 of the Mental Health Act 1983; s.23 must strictly apply. As the provisions in relation to dangerousness require the court to take into account all information and in the light of the practice set out in Roberts, we do not consider that s.23 constrains this court from receiving further information about the offender where it is right to do so. That approach is entirely consistent with the decision of this court in Clipston[2011] EWCA Crim 446 in relation to the procedure at trial post conviction and the observations made at paragraphs 56-57 and 64-65.

However, for the reasons we give, it will be very rare for this court to receive new psychological assessments that were not before the trial judge in an issue under the dangerousness provisions of the CJA 2003. If, in the future, such material is to be adduced in the light of the observations we make, and such material is disputed (as in the case of Beesley) and a witness needs to be called, then directions will have to be given and the provisions of s.23 may be applied.

It is clear that that this court does take progress in custody into account: see for example R v R [2009] EWCA Crim 1932 and does reduce determinate terms on account of progress. At first sight the decision in R v Cooper[2006] EWCA Crim 2130 suggests a similar approach to the imposition of an indeterminate sentence. On the appeal, the issue was whether a discretionary life sentence for rape should have been passed nine years earlier; this court accepted the joint position of the parties that fresh evidence should readily be admitted in that case:

That decision is in accord with the cases which establish that where an appellate court is considering the assessment of dangerousness for the purpose of the CJA 2003, its task is to assess dangerousness at the time the trial judge made his decision; subsequent progress is unlikely to be of assistance in that determination. In Gisanrin [2010] EWCA Crim 504, the court observed:

A similar view was expressed in Newman[2010] EWCA Crim 2802 where considerable progress had been made by an appellant in the two years between the sentence and the appeal. The court observed that the right sentence had been imposed; it would be a matter for the Parole Board to consider when it would be safe for the appellant to be released.

These decisions are consistent with the approach to fresh evidence adduced to provide retrospective consideration of fitness to plead and diminished responsibility set out by this court in Erskine[2009] 2 Cr App R 29, [2009] EWCA Crim 1425, [2010] Crim LR 48 at paragraphs 89 and 92. The court emphasised that what had to be assessed was the mental state at the relevant time.

We have therefore carefully considered the reports and evidence of Dr Art Anderson in the case of Beesley and the reports of Dr Marriot and the other reports and material in the case of Rehman to see if they would have changed the assessment made by the sentencing judges at the time they were sentenced. In our view, in neither case do they have that effect.

It is clear from the evidence of Dr Anderson that Beesley’s long standing personality traits which he considered would have mediated and protected his aggressive tendencies were present at the time of the offence. They did not prevent Beesley carrying out the infliction of gratuitous violence amounting to the deliberate torture and mutilation of the victim, the deceased Lilley. In our judgement, there is nothing in the further assessments carried out by Dr Anderson that assists further in the task of assessing dangerousness beyond that which was in the OASys assessment; that assessment had to be put in the context of Beesley’s escalating level of offending and the nature of the crime committed against Lilley. As the traits identified by Dr Anderson did not prevent Beesley committing the crime that consideration would have been given little weight in assessing the issue of dangerousness. In our judgement the judge was clearly right to impose a sentence of imprisonment for public protection.

It is also clear from the whole of the evidence in the case of Rehman that he has made enormous progress in custody; he has changed in a large number of respects. However, although he has benefited in this way, nothing in our judgement casts doubt on the assessment of dangerousness in 2006. The judge had a clear and escalating record of very serious and dangerous offending culminating in the reckless shooting of Uddin. The pre-sentence report underlined the risk. It seems that Rehman soon realised that he had to change if he was to gain his freedom. He fully availed himself of the opportunities provided to him and it is a tribute to him and to those who assisted him that he is a changed person. However that change in no way casts any doubt on the correctness of sentence of detention for public protection imposed. We therefore refuse leave to make this renewed application.

It was submitted that the judge was wrong to conclude that Coyle was dangerous. Reliance was placed on the nature of his offending and the assessment of risk in the pre-sentence report. We cannot accept those submissions. Although we proceed on the basis really serious bodily injury was not intended, he willingly participated in planned violence against Lilley involving torture and mutilation; given the nature of that offence and his previous offending, there is no basis for considering that the decision of the judge in finding Coyle was dangerous was in any way wrong.

Both Beesley and Coyle submitted that the judge had taken too long a period for the notional determinate term; he had not reflected the basis on which the case had been put before the court. We consider that this submission has some force. The judge did not reflect that basis fully in the sentence he passed. We consider therefore that the notional determinate term should be reduced from 16 years to 14 years and that the specified period should therefore be 7 years less time on remand. To that extent and to that extent only is the appeal allowed.

No psychiatric or psychological report was before the sentencing judges in either of these cases. As none of the appellants had any psychiatric or mental condition, we do not see that there was any need for such reports. A judge when considering whether a person is dangerous for the purposes of the 2003 Act will need, as this court has made clear, all the information that is available about a defendant, his circumstances and his previous offending. That information will include details of the offence or offences for which the defendant is to be sentenced, details of any previous offending, and, in most cases, a pre-sentence report with its OASys assessment and the Probation Officer’s opinion. The value of the OASys Assessment has been referred to by this court in Boswell [2007] EWCA Crim 1587 and R v Griffin[2008] EWCA Crim 119, [2008] 2 Cr App R (S) 61.

The judge will primarily take his decision on the basis of those matters. other factual information in relation to the defendant and the circumstances of the offence for which the defendant is to be sentenced. It is highly unlikely, where a defendant has no psychiatric or mental condition, that a psychologist’s report which attempts to predict by further methods of assessment whether there is a significant risk of committing further serious specified offences will be of any assistance, unless there are exceptional circumstances.

As each of these cases illustrates, there was a pattern of escalating offending and, in the case of Beesley and Coyle, torture and mutilation of the victim. It is therefore this information as to past offending and the instant offence that will be the primary determinant. The court will be rarely assisted by psychological assessments that attempt to assess the risk other than the risk assessment using OASys contained in the pre-sentence report. It will therefore only be in an exceptional case that this court will be prepared to consider further psychological assessments in relation to the dangerousness provisions.

The Parole Board, as the case of Rehman illustrates, is often assisted by evidence from a psychologist. However the position of the Board is different as it is assessing not only the actual conduct of the defendant which led him to commit the offence, but whether the work undertaken by the defendant in custody has changed the risk posed by the defendant. It is clear in our view that that assessment, where the defendant has not been at liberty and the objective is to see what change there has been, can be assisted by psychological tests. Even then, the assessment of risk is very difficult. In summarising the decision of the Administrative Court where the Secretary of State had differed from the assessment of the Parole Board as he was permitted to do under the then current legislation, Kenneth Parker QC (as he then was) said in R(Black) v Secretary of State for Justice [2007] EWHC 1668 Admin at paragraph 72-3: