COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BIRMINGHAM, STAFFORD and NEWCASTLE CROWN COURTS
HHJ EVERARD, HHJ TONKING and HHJ BOLTON
T2005 7399, T2006 7188 & T2006 7078
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE KING
THE COMMON SERJEANT, HIS HONOUR JUDGE BARKER QC
| Dean Pedley, Lee Martin and Zeeyad Hamadi
|- and -
Mr Edward Fitzgerald QC/Mr James Dixon (instructed by Registrar of Criminal Appeals) for the Appellant Lee Martin
Mr Edward Fitzgerald QC/Mr James Dixon (instructed by Michael Henderson, Solicitor) for the Appellant Zeeyad Hamadi
Mr Victor Temple QC/Mr Timothy Gittins (instructed by CPS) for the Respondent
Mr Steven Kovats (instructed by the Treasury Solicitor) for the Secretary of State for Justice
Hearing dates: 26.02.2008
Crown Copyright ©
Lord Justice Hughes:
i) 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
ii) the compatibility of sentences passed according to that test with the European Convention on Human Rights.
"(1) This section applies where: –
(a) a person aged 18 or over is convicted of a serious offence committed after the commencement of this section, and
(b) the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences."
"death or serious personal injury, whether physical or psychological."
"Significant risk" and ECHR compatibility.
i) that 'significant risk…of serious harm' should be construed to mean that serious harm is more likely than not to follow; alternatively
ii) 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;and in either event
iii) 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.
i) 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
ii) 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.
"It does not automatically follow from the absence of actual harm caused by the offender to date that the risk that he will cause serious harm in the future is negligible."
"R v Shaffi is not authority for the proposition that as a matter of law offences which did not result in harm to the victim should be treated as irrelevant. Indeed if that is what R v Shaffi decided it would, in effect, have re-written the statute."
In Lang (at paragraph 17(i)), this court had explicitly said that a 'significant risk' presented a higher threshold than a mere possibility of occurrence. If there had been, in Johnson, any intention to modify that statement, this court would have said so plainly. It is abundantly clear that Johnson provides no support for any contention that the 'significant risk' test is met whenever the risk of serious harm is anything more than negligible. Some risk is not enough; it must be a significant risk.
Hamadi: application to re-list
Pedley; the merits
"In the case of each of you I am quite satisfied on the facts of these offences alone that there is a significant risk to members of the public of serious harm being occasioned by the commission by each of you of further specified offences."
Martin: the merits
i) 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;
ii) 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;
iii) 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;
iv) 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;
v) having outside his place of residence any photographic equipment or other technology capable of capturing an image.