B e f o r e :
(LORD JUSTICE ROSE)
MR JUSTICE NELSON
MRS JUSTICE SWIFT
|R E G I N A|
|STEPHEN HOWARD LANG|
|KEITH WILLIAM WINTERS|
|CHARLES DIXON CARASCO|
|ROBERT WILFRED WRIGHT|
|JAMES JOHN SHEPPARD|
|GARY ALAN SMITH|
|KYLE FREDERICK GEORGE EDWARDS|
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MR R AMLOT QC & MISS I FORSHALL appeared on behalf of the APPLICANT ABDI
MR R D AMLOT QC & MR A TUCKER appeared on behalf of the APPLICANT WINTERS
MR R AMLOT QC & MR MCDONAGH appeared on behalf of the APPELLANT CARASCO
MR R AMLOT QC & MR H JONES appeared on behalf of the APPLICANT FEIHN
MR R AMLOT QC & MR C STOCKWELL appeared on behalf of the APPELLANT WRIGHT
MR R AMLOT QC & MR R HAWKINS appeared on behalf of the APPLICANT COLLIER
MR R AMLOT QC & MR N LICKLEY appeared on behalf of the APPLICANT SHEPPARD
MR R AMLOT QC & MR NPJ CLARKE appeared on behalf of the APPLICANT D
MR R AMLOT QC & MR M SHELLEY (SOL ADVOCATE) appeared on behalf of the APPLICANT SMITH
MR R AMLOT QC & MR D BROOKE appeared on behalf of the APPLICANT ARMITAGE
MR R AMLOT QC & MR P EASTWOOD appeared on behalf of the APPLICANT G
MR R AMLOT QC & MR R LINFORD appeared on behalf of the APPELLANT EWDARDS
MR I WINTER appeared on behalf of the CROWN
Crown Copyright ©
(i) The risk identified must be significant. This is a higher threshold than mere possibility of occurrence and in our view can be taken to mean (as in the Oxford Dictionary) "noteworthy, of considerable amount or importance."
(ii) In assessing the risk of further offences being committed, the sentencer should take into account the nature and circumstances of the current offence; the offender's history of offending including not just the kind of offence but its circumstances and the sentence passed, details of which the prosecution must have available, and, whether the offending demonstrates any pattern; social and economic factors in relation to the offender including accommodation, employability, education, associates, relationships and drug or alcohol abuse; and the offender's thinking, attitude towards offending and supervision and emotional state. Information in relation to these matters will most readily, though not exclusively, come from antecedents and pre-sentence probation and medical reports. The Guide for sentence for public protection issued in June 2005 for the National Probation Service affords valuable guidance for probation officers. The guidance in relation to assessment of dangerousness in paragraph 5 is compatible with the terms of this judgment. The sentencer will be guided, but not bound by, the assessment of risk in such reports. A sentencer who contemplates differing from the assessment in such a report should give both counsel the opportunity of addressing the point.
(iii) If the foreseen specified offence is serious, there will clearly be some cases, though not by any means all, in which there may be a significant risk of serious harm. For example, robbery is a serious offence. But it can be committed in a wide variety of ways many of which do not give rise to a significant risk of serious harm. Sentencers must therefore guard against assuming there is a significant risk of serious harm merely because the foreseen specified offence is serious. A pre-sentence report should usually be obtained before any sentence is passed which is based on significant risk of serious harm. In a small number of cases, where the circumstances of the current offence or the history of the offender suggest mental abnormality on his part, a medical report may be necessary before risk can properly be assessed.
(iv) If the foreseen specified offence is not serious, there will be comparatively few cases in which a risk of serious harm will properly be regarded as significant. The huge variety of offences in Schedule 15, includes many which, in themselves, are not suggestive of serious harm. Repetitive violent or sexual offending at a relatively low level without serious harm does not of itself give rise to a significant risk of serious harm in the future. There may, in such cases, be some risk of future victims being more adversely affected than past victims but this, of itself, does not give rise to significant risk of serious harm.
(v) In relation to the rebuttable assumption to which section 229(3) gives rise, the court is accorded a discretion if, in the light of information about the current offence, the offender and his previous offences, it would be unreasonable to conclude that there is a significant risk. The exercise of such a discretion is, historically, at the very heart of judicial sentencing and the language of the statute indicates that judges are expected, albeit starting from the assumption, to exercise their ability to reach a reasonable conclusion in the light of the information before them. It is to be noted that the assumption will be rebutted, if at all, as an exercise of judgment: the statute includes no reference to the burden or standard of proof. As we have indicated above, it will usually be unreasonable to conclude that the assumption applies unless information about the offences, pattern of behaviour and offender show a significant risk of serious harm from further offences.
(vi) In relation to offenders under 18 and adults with no relevant previous convictions at the time the specified offence was committed, the court's discretion under section 229(2) is not constrained by any initial assumption such as, under section 229(3), applies to adults with previous convictions. It is still necessary, when sentencing young offenders, to bear in mind that, within a shorter time than adults, they may change and develop. This and their level of maturity may be highly pertinent when assessing what their future conduct may be and whether it may give rise to significant risk of serious harm.
(vii) In relation to a particularly young offender, an indeterminate sentence may be inappropriate even where a serious offence has been committed and there is a significant risk of serious harm from further offences (see for example, R v D  EWCA Crim 2282).
(viii) It cannot have been Parliament's intention, in a statute dealing with the liberty of the subject, to require the imposition of indeterminate sentences for the commission of relatively minor offences. On the contrary, Parliament's repeatedly expressed intention is to protect the public from serious harm (compare the reasoning of the Court in relation to automatic life sentences in R v Offen  2 Cr App R(S) 44, paragraphs 96 to 99.
(ix) Sentencers should usually, and in accordance with section 174(1)(a) of the Criminal Justice Act 2003 give reasons for all their conclusions: in particular, that there is or is not a significant risk of further offences or serious harm; where the assumption under section 229(3) arises for making or not making the assumption which the statute requires unless this would be unreasonable; and for not imposing an extended sentence under sections 227 and 228. Sentencers should, in giving reasons, briefly identify the information which they have taken into account.