England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		18 January 2008

1. MR JUSTICE SAUNDERS: On 4th May 2007 at the Central Criminal Court, this appellant was convicted of manslaughter and sentenced to imprisonment for public protection. The appropriate determinate sentence decided by the judge was one of seven years, so the period to be spent in custody before the appellant become eligible to apply for parole was three-and-a-half years, less the period already spent in custody. He appeals against that sentence by leave of the single judge.
2. The killing occurred on 18th February 2006 at the house of the deceased, a man called Johnson. The appellant knew the deceased somewhat and had gone to his house that night to return a coat that he had borrowed. The appellant remained at the house for some time with the deceased and another man. Some drink was consumed but the appellant's case was that he was not drunk.
3. Shortly after 1 o'clock in the morning the appellant decided to leave and a taxi was called. The arrangement made with the taxi driver was that the taxi would take the appellant to Bromley. The taxi driver also agreed to get some cigarettes for Mr Johnson and then take them back to him. Mr Johnson gave the taxi driver £50 for this purpose. According to the appellant, Mr Johnson also lent him and let him use his credit card to withdraw some cash which he needed from a cash machine -- cash which was presumably to be a loan from Mr Johnson. In the event the appellant did not go to Bromley but tragically, as it turned out, returned to Mr Johnson's house because he had entered the wrong PIN number in the cash machine which had therefore kept the card.
4. What exactly then went on at the house is not clear, but there was an argument and during the course of that argument the appellant stabbed Mr Johnson to death with a kitchen knife which was in Mr Johnson's house. There were only the two of them present at the time of the killing, that was the appellant and Mr Johnson.
5. The appellant's account was that when he was about to go and when Mr Johnson was accusing him of short changing him, Mr Johnson had attacked him (the appellant) with a knife. The appellant indeed had a cut to his right hand which was consistent with being a defensive injury and supported his suggestion that it was Mr Johnson who had started the attack. However, the appellant said that he lashed out at Mr Johnson causing him to drop the knife. The appellant then picked the knife up and used it to stab Mr Johnson, probably first in the back causing minor damage to the lung, but then stabbed him in the eye, the knife may well have come in and out more than once in the course of that stab. The blow to the eye was said by the pathologist to be delivered with severe force because it penetrated the skull and went into the brain. The handle of the knife actually broke off leaving the blade protruding from the eye socket. The point was made in the course of the evidence by the defence to the pathologist, and was accepted by him, that part of the severity of the force needed could have been caused by Mr Johnson actually coming on to the knife as the blow was struck.
6. At trial the appellant faced a single count of murder. After discussion with counsel (before speeches) it was decided that the judge would also leave manslaughter to the jury as an alternative on two possible bases, namely lack of intent and provocation.
7. On the third day of their retirement the jury indicated to the judge by a note that they were unable to agree on murder but had reached a verdict on manslaughter. This scenario raises considerable difficulties for judges, but by agreement with counsel a second count of manslaughter was added at that stage to the indictment. The jury were discharged from giving a verdict on murder and they returned a verdict of guilty on manslaughter. The jury were not asked to return a special verdict, nor are we suggesting they should have been, indicating the basis on which they returned their verdicts of manslaughter.
8. The judge considered it necessary as part of the sentencing process to decide on what basis he should sentence for manslaughter. Whether in the event it would have made any difference may be uncertain. Miss O'Neill submitted to the learned judge that he should sentence on the basis that the necessary intent had not been proved. She argued this way, that as the jury were agreed on manslaughter they could not all have agreed on provocation because inevitably, had that been the case, that would necessarily involve their agreement on the murder charge as well. If, however, they had all agreed that this was an unlawful killing but were split over whether the necessary intent was proved, then that would explain their unanimous verdict on manslaughter and their failure to agree on murder. The prosecution however submitted to the learned judge that the judge should make up his own mind on the basis of the verdict of manslaughter because Miss O'Neill's analysis of the jury's verdict on manslaughter and lack of agreement on murder was not the only possible explanation. It may have been, the prosecution pointed out, and it seems Miss O'Neill conceded in front of the learned judge, that some of the jurors might have found manslaughter by reason of provocation, others on the basis of lack of intent, and some were not agreed that intent had been proved. The learned judge accepted the prosecution's submissions. The judge made up his own mind that he should sentence on the basis of provocation. The judge was satisfied on the evidence that the appellant had clearly demonstrated an intention at least to cause really serious bodily harm by stabbing Mr Johnson in the eye.
9. We are satisfied that the judge was perfectly entitled to do what he did and reach the conclusion that he did. We accept that if there is only one possible interpretation of a jury's verdict then the learned judge must faithfully sentence on that basis, whether he agrees with it or not. But we do not accept that in this case there was only one possible interpretation of the verdict that the jury brought in, ie their failure to agree on murder but their agreement on the manslaughter verdict.
10. In those circumstances, where there is more than one possible interpretation the judge is perfectly entitled, indeed must make up his own mind, on which basis he should sentence and decide that on his view of the evidence. We do also take the view, which we canvassed during argument, that in this case it is likely to have made little if any difference to the decision that the judge had to make and with which we have to deal, ie the decision to impose a sentence of imprisonment for public protection. Miss O'Neill accepts that the notional determinate sentence of seven years taken by the learned judge was appropriate on either basis ie provocation or unlawful act manslaughter. But she argues that the judge would have been less likely to have passed a sentence of imprisonment for public protection on the basis of lack of intent than he would have been on the basis of provocation. With respect we do not agree. Indeed arguably it may be a stronger indicator of dangerousness if the judge had sentenced on the basis that the appellant had caused these injuries in the way he did, but at the time he had no intention to cause grievous bodily harm. That may well support a suggestion that he was dangerous because he lacked insight into the consequences of his own actions.
11. Coming then to the learned judge's decision to pass a sentence of imprisonment for public protection and whether that can be properly criticised before this court. Manslaughter is a serious specified offence by virtue of section 224 of the Criminal Justice Act 2003. Therefore the judge was bound to consider the question of dangerousness and, if the learned judge decided that there was a significant risk to members of the public of serious harm occasioned by him of further specified offences, then he was bound by section 225 to pass a sentence of either imprisonment for public protection or life imprisonment.
12. Further, in April 2005 the appellant had been convicted of racially aggravated threatening behaviour and given a community rehabilitation order. That offence is a specified offence under the Criminal Justice Act 2003 and therefore by virtue of section 229 of the Criminal Justice Act 2003 the judge must assume that there is such a risk unless, when having considered all the information about the offender, the judge considers it would be unreasonable to conclude that there was such a risk. As has been pointed out by this court in the case of Lang, that it is not by any means automatic that when there is a previous specified offence the judge must reach the conclusion that the offender is dangerous. But as is also made perfectly clear in the case of Johnson, the Act does require the judge to follow this process and to assume that there would be such a risk unless it was unreasonable to conclude that there was one.
13. Clear guidance, as we have said, has been given to judges in the cases of Lang and Johnson, as to how they should approach those provisions and it is clear that the judge was well aware of that guidance and applied it, the cases indeed having been referred to during the course of the sentencing process.
14. One of the matters which the learned judge took into account, as you would expect, was the contents of the pre-sentence report and the assessment of risk made by a probation officer. It is unlikely that any judge would sentence without having the benefit of such a report and such an assessment. However, it is the way that assessment was carried out which forms another basis of the criticism made by Miss O'Neill of this sentence. In making the assessment the author of the report used two separate risk assessment tools. The OASys risk assessment tool which is commonly used by the probation service and also one called the Thornton Risk Matrix 2000, another assessment tool developed by the Home Office.
15. In the first report which was produced it appeared that the probation officer made her risk assessment on the basis of the Risk Matrix 2000 risk assessment tool only. That report was withdrawn by the probation officers at the Central Criminal Court and a new report was prepared which made use not only of Risk Matrix 2000 but also OASys.
16. The probation officer assessed that the appellant posed a high risk of harm and a high risk of causing harm of serious injury. She concluded that the risk was posed to members of the public and known adults and that the nature of the risk is that the appellant would physically assault members of the public leading to injury or death. At Part 4 of her report the probation officer made clear the matters she had taken into account. She said this:

"In assessing risk of harm I have taken into account the nature and circumstances of the current offence, the nature and circumstances of the previous offending behaviour, the escalation in the seriousness of the defendant's behaviour, and the fact that the current offence was committed whilst [he] was wanted on warrant for breach of a community order. I have also taken into consideration the judge's remarks that provocation contributed to the defendant's behaviour, and the fact that the defendant appears to be remorseful for the offence. Given all of the above it is my assessment that the defendant poses a high risk of harm. Mr Griffin should focus on the appropriate offending behaviour work as outlined in the supervision plan in order to lower this risk.

The risk is posed to members of the public and known adults. The nature of the risk is that the defendant will physically assault them leading to injury or death. The risk is likely to be higher in the community than it is in custody. Risk is not assessed as being imminent. Circumstances likely to increase risk are alcohol consumption, Mr Griffin fearing for his safely (whether that fear is justified or not), an ongoing dispute between Mr Griffin and a known adult, and the presence of a weapon."

She then goes on to detail factors which could decrease that risk.

17. It is obviously important that the learned judge should be able to see the matters which inform the probation officer's opinion and her conclusion because it is, as has been said more than once, he who has to make the decision making use of course of all the information which is put before him.
18. In addition to that, in assessing what score or what importance to attach to individual factors, the probation officer used the Risk Matrix 2000 risk assessment tool. Miss O'Neill has criticised the use of it. It is right to say that it is a risk assessment tool which is developed primarily to help assess risk when dealing with sex offenders. But in the introduction it does go on to say 'that it has also been tested with adult males serving a prison sentence following conviction of an offence of non-sexual violence and with a heterogenous group of prisoners who are participating in cognitive skills programmes. It is therefore reasonable to use it with adult males who have been sentenced for serious non-sexual violence'.
19. So it is, on the basis of that introduction at least, appropriate to use it, perhaps along with the OASys risk assessment tool as well, in considering these sort of cases. The use of risk assessment tools by the probation service is clearly necessary for them because risk assessment is an extremely difficult task and the use has been approved by this court in R v Boswell [2007] Crim EWCA 1587. There was no evidence placed before the judge in this case, as opposed to criticisms made by counsel, to justify the claim that the probation officer had made inappropriate use of the Risk Matrix 2000 system. The learned judge had in mind the criticisms made by Miss O'Neill of that particular risk assessment tool and he heard from her the dangers of the use of it. In any event, it is perfectly clear that the learned judge made his own assessment, as is required by statute, no doubt making use of the contents of the report but attaching such weight to them as he thought fit in the light of the criticisms that were made, but it is, as required by statute, he that had to make the assessment.
20. In his sentencing remarks, at page 6A, having set out the basis on which he was going to sentence, he said this:

"Because of the nature of the offence you have committed, I have to consider whether it is necessary to pass a sentence of imprisonment for public protection. If I decide there is a significant risk to members of the public of serious harm caused by you committing further specified offences, I must pass such a sentence. Because you have previously been convicted of a specified offence, I must assume there is that risk unless it is unreasonable for me to do so. I have considered the nature of this offence, indeed all the circumstances relating to the offence, your past history which shows an escalating pattern of violence, albeit on a much lesser scale, and indeed the conclusion in the pre-sentence report, which state that you pose a high risk of harm to members of the public and known adults. It is stated that the nature of the risk is that you will physically assault others, leading to injury or death from offences of violence.

I accept that I am not bound by that assessment, and I have listened with care to the criticisms your counsel have leveled at that assessment; in particular that it is simplistic in the extreme and makes assumptions without looking at the good features in respect of your personality and conduct. However, when taken together with these other matters, it seems to me you do pose a significant risk to members of the public of serious harm. In those circumstances I must pass a sentence for public protection."

21. We have listened with great care to the criticism made of the learned judge's assessment, but in our judgment, on proper analysis, his findings are unassailable. Not only did he have all the relevant factors in mind but he had the great benefit which we do not have of observing this appellant during his trial and hearing him give his evidence. He clearly applied the correct test. He took into account the Court of Appeal authorities to guide him, and he reached his conclusion, on perfectly proper factors, in our judgment, that the appellant was indeed dangerous and accordingly the sentence of imprisonment for public protection had to be passed, if not a life sentence.
22. In those circumstances we do not feel it is appropriate for this court to interfere and accordingly the appeal against sentence is dismissed.
23. MISS O'NEILL: My Lord, may I mention one matter? Forgive me for doing so. I mention Mr Walsh being here with me as my junior. He was of enormous assistance to me both during the trial and in the preparation of this appeal. The representation order is for me alone today. I invited the Registrar to extend it to include Mr Walsh. That was declined but we were told that we could renew the application before my Lord. I hope my Lord does not think it an impertinence if I do so.
24. LORD JUSTICE TUCKEY: Of course it is not an impertinence to ask. We were even warned that you would.
25. MISS O'NEILL: He has been of very considerable assistance to me, my Lord. It is an unusual case as far as the risk assessment and the Thornton Matrix 2000 matters was concerned, which is where he has been of particular assistance to me.
26. LORD JUSTICE TUCKEY: No doubt he has been of assistance to you. (Pause) I am sorry, Miss O'Neill, we think it might set a precedent. As you understand normally it is for one counsel and exceptionally leading counsel on an appeal against sentence and much though we appreciate the fact that you have had that assistance we do not think we can extend the representation order.