England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		14 July 2011

LORD JUSTICE MOSES:

1. The issue in this appeal against sentence is whether there is any legal inhibition against the imposition of a determinate sentence to be served at a time commencing at the end of a minimum term specified under section 269 and Schedule 21 to the Criminal Justice Act 2003.
2. On 30 July 2004, the appellant was sentenced to life imprisonment for murder, with a minimum term of 23 years. Thus the earliest at which his release could be considered by the Parole Board will be 2027.
3. On 16 January 2010, whilst serving that sentence at Her Majesty's Prison Whitemoor, the appellant committed three offences of assault occasioning actual bodily harm and three offences of common assault against prison officers. The reasons why the appellant refused to return to his cell need not concern the court. Despite efforts by the officers to persuade him to do so, he refused. He plainly lost control, became more and more agitated, and threatened to kill the officers. Officer Forrester was punched to the head; he lost consciousness. The appellant then stepped out from the door of his cell and punched Officer Oldman to the head; she suffered a fracture of the mandible. The officer who had lost consciousness sustained chipped teeth and serious bruising. Officer Wilson sustained a sub-conjunctival haemorrhage of the right eye, a haematoma around the right orbital area, a 2.5cm laceration to his right eyebrow and swelling behind the left ear. Three other officers sustained minor injuries.
4. In his sentencing remarks the judge said that he would impose concurrent terms of three years' imprisonment for the offences of assault occasioning actual bodily harm upon Officers Forrester and Oldman, and a further concurrent term of two years' imprisonment for a similar offence on Officer Wilson. Concurrent terms of three months' imprisonment were imposed for each of the offences of common assault. The total sentence was three years' imprisonment. The judge said that period of three years "will be expressed to run consecutively to your present sentence". It is clear (and was not disputed by Mr Bennathan QC on behalf of the appellant) that that sentence was designed to commence at the expiry of the minimum term of 23 years.
5. In order to determine the lawfulness of that sentence it is necessary to consider the relevant statutory regime. The sentence for murder was fixed by law: it is imprisonment for life (see section 1 of the Murder (Abolition of Death Penalty) Act 1965). The court is required to specify a minimum term which must be specified before the release provisions set out in section 28 of the Crime (Sentences) Act 1997 apply (see section 269(3) to (5) of the Criminal Justice Act 2003). The principles according to which the period must be fixed are set out in Schedule 21 to the Criminal Justice Act 2003.
6. Pursuant to the early release provisions of section 28 of the Crime (Sentences) Act 1997, the Secretary of State is required to release a prisoner after the minimum term, where the Parole Board considers that it is no longer necessary for the protection of the public that the prisoner should be confined. Where the Board directs a life prisoner's release, the Secretary of State must release him. Section 28 contains the provisions by which the period before which the Parole Board may consider whether it is safe to release a prisoner is identified.
7. The question then arises whether, within that statutory regime for serving a life sentence, a determinate sentence can be imposed consecutively to the minimum period. The power to order consecutive sentences is conferred by section 154 of the Powers of Criminal Courts (Sentencing) Act 2000, which provides:

"154 Commencement of Crown Court sentence

(1) A sentence imposed .... by the Crown Court when dealing with an offender shall take effect from the beginning of the day on which it is imposed, unless the court otherwise directs.

(2) The power to give a direction under subsection (1) above has effect subject to section 265 of the Criminal Justice Act 2003 (restriction on consecutive sentences for released prisoners)."

Section 265, under the rubric "Restriction on consecutive sentences for released prisoners" provides:

"(1) A court sentencing a person to a term of imprisonment may not order or direct that the term is to commence on the expiry of any other sentence of imprisonment from which he has been released --

(a) under this Chapter; or

(b) under Part 2 of the Criminal Justice Act 1991."

Thus, the power to order a consecutive sentence is restricted only by section 265. Section 265 has no application to cases other than those where a person has been sentenced but has been released on licence from that sentence.

8. At first blush, therefore, the court in this case had a statutory power to impose a determinate sentence and to order that that sentence should commence at the expiry of the appellant's minimum term. That will have the effect of extending the period before which his release may be considered by the Parole Board (eighteen months beyond the 23 year minimum term).
9. Section 28(7) of the Crime (Sentences) Act 1997 provides:

"A life prisoner to whom this section applies may require the Secretary of State to refer his case to the Parole Board at any time --

....

(c) where he is also serving a sentence of imprisonment or detention for a term, after he has served one-half of that sentence."

That subsection clearly contemplates the imposition of a determinate sentence on a prisoner whilst he is serving a life sentence. That imposition has the effect of extending the period beyond the expiry of the minimum period the defendant has previously been ordered to serve under a life sentence. It has the effect that a life prisoner cannot require the Secretary of State to refer his case to the Parole Board until the expiry of half of the determinate sentence. It is true, as Mr Bennathan submitted, that that subsection will have content and effect in circumstances where, towards the end of serving the minimum period, a life prisoner commits an offence and a determinate sentence is ordered, which will have the effect of extending the period before which the Parole Board may consider his case. But there is nothing within the statute which restricts the operation of section 28(7) to such a case. Nothing within the statute that is other than apt to cover the very situation contemplated by section 154, unrestricted by section 265 because the life prisoner has not yet been released.

10. The appellant submits that that conclusion, reached under the relevant statutory provisions, is contradicted by a series of cases in the course of which this court considered whether it was possible to pass a determinate sentence to run consecutively to a life sentence. In R v Foy [1962] 1 WLR 609 Lord Parker CJ considered the order of the sentencing judge which purported to impose two concurrent sentences of 14 years' imprisonment to run consecutively to a sentence of imprisonment for life, which the appellant was already serving. Lord Parker CJ said that that sentence was not valid. He said:

"Life imprisonment means imprisonment for life. No doubt many people come out [from life imprisonment] while they are still alive, but when they do come out it is only on licence, and the sentence of life imprisonment remains on them until they die. Accordingly, if the court makes any period of years consecutive to life imprisonment, the court is passing a sentence which is no sentence at all, in that it cannot operate until the sentenced man dies. The court feels that, although they cannot substitute any sentence in this case, it is right for them to say that the sentence passed was wholly invalid, and that the proper sentence in this case would have been one of 14 years' imprisonment concurrent with the sentence of life imprisonment."

It may be that the statutory scheme was totally different at the time Lord Parker CJ made those remarks. We shall return to that comment in a moment.

11. That decision was followed in two more recent cases when the statutory regime we have sought to identify was in place. In R v Johnson [2007] EWCA Crim 1864, this court remarked that it was absurd to pass a determinate sentence to run consecutively to a life sentence, and quashed a sentence of six years' imprisonment which was ordered to be served consecutively to a life sentence and ordered that it should be served concurrently (paragraph 6).
12. To like effect, in a short judgment in R v Hawkins [2007] EWCA Crim 1096, the court followed the decision in Foy and regarded a sentence of three years' imprisonment passed consecutively to a life sentence as unlawful (see paragraph 3).
13. It must, however, be recognised that the statutory scheme which applied at the time of Foy was totally different. As Lord Parker CJ recognised, prisoners ordered to serve a sentence of life imprisonment would, even in those days, often be released during their lifetime. But it must equally be recognised that the only possibility of early release was in pursuit of an executive power conferred on the Secretary of State for the Home Department. Although there was a statutory reference to the power to order early release in section 27 of the Prison Act 1952, it was nonetheless an executive and not a judicial power. A practice grew of the trial judge recommending minimum periods. That recommendation, coupled with the views of the Lord Chief Justice, was communicated privately to the Secretary of State. However, it was only after subsequent challenges to the propriety of that secret communication of a minimum period and the exercise of an executive power of release that the provisions of the Criminal Justice Act 1991 were introduced. There gave statutory force to the setting of a minimum or tariff period for punishment before consideration could be given to whether or not the prisoner who had served a minimum period was safe to be released (see paragraphs 7 and 8 of R v Delucca and Others [2011] 1 Cr App R(S) 7).
14. Delucca is authority for the proposition that a determinate sentence should not be imposed consecutively to an indeterminate sentence at the same time as that determinate sentence is imposed. In Delucca one of the appellants was sentenced to an indeterminate sentence and at the same time was ordered to serve periods of determinate sentences to run consecutively. The court ruled that this was impermissible. The correct way to deal with the offences which attracted determinate sentences was by increasing the minimum term to be served under the sentence of imprisonment for public protection; but non sequitur that any such prohibition exists where a determinate sentence is imposed subsequently to the order that the prisoner should serve an indeterminate sentence either under imprisonment for public protection or a life sentence.
15. There is authority which fortifies the view that there is no legal inhibition on passing a determinate sentence to commence at the end of the minimum period. In R v Hills [2009] 1 Cr App R(S) 75, this court said:

"10. In our view, there is no reason in principle why the court should not impose a sentence structured in the way that this sentence was [in other words, a determinate sentence ordered to run consecutively to the minimum period that Hill was ordered to serve under a sentence of life imprisonment]. Section 154 of the Powers of Criminal Courts (Sentencing) Act 2000 declares that:

'A sentence imposed, or other order made, by the Crown Court .... shall take effect at the beginning of the day on which it was imposed, unless the court otherwise directs.'

That seems to us to give the court the power to direct that a sentence should or could commence at a different date. The sentencing regime which has been created in particular by the Criminal Justice Act 2003 provides for clear dates upon which minimum terms will come to an end which enable a court to identify with precision the date upon which otherwise an offender could be considered for release on parole. That being the case, there is in our judgment no practical reason why an order should not be made which requires the offender to commence to serve an additional period after the minimum period before he can be considered for parole. The old authorities to the contrary effect are no longer relevant now that minimum terms are clearly identified."

16. Mr Bennathan, with his customary care and frankness, accepts that that authority is wholly contrary to his contentions. It is. Unless there is some fresh consideration either in authority or statute which the court overlooked in Hills, we should regard ourselves as bound by it.
17. To like effect (although not concerning a sentence of life imprisonment) is a recent Reference by Her Majesty's Attorney General in R v Jumah and Others [2010] EWCA Crim 2900, in which the court (presided over by Lord Judge CJ) was faced with a case where a prisoner had committed murder and whilst on bail for the murder had been charged with murder, but convicted of manslaughter. The court held that a sentence of imprisonment for public protection could be ordered to run consecutively to an existing mandatory life order. The court's main rationale for reaching that conclusion was that, were it not so, the offender would escape all punishment for a second homicide offence of which he was convicted, committed whilst on bail for the first. The court said:

"22. .... Although he is still young, it is inappropriate that the punitive element of the sentence to be imposed on him for this manslaughter should in effect be entirely subsumed in the sentence imposed on him for the earlier murder. We do not agree with the submission that at the end of the current 14 year minimum period to which he is subject, effect would be given to these elements by the Parole Board.

23. A number of different ways of dealing with this situation have been considered in argument. We have focused on the practical realities, acknowledging that it is impossible to avoid, either the imposition of a shorter than merited sentence consecutive to the minimum term already being served, or, alternatively, a longer than deserved concurrent sentence for the instant offence in order to produce the element of further punishment. Overall the issue of totality is of importance in the context of this man's age. ...."

The court then ordered that he serve an independent period of detention in a young offender institution for public protection to run consecutively to the existing mandatory life order.

18. There is authority to the contrary, but on analysis it was only a provisional view expressed by this court in R v Ashes [2008] 1 Cr App R(S) 86. In that case the court, in a judgment given by Silber J, expressed the provisional view that when dealing on a subsequent occasion with a further offence the sentencing court should impose an appropriate concurrent sentence, be it determinate, indeterminate, or extended. The court emphasised at paragraph 9 that that was only a provisional view; it did not purport to give any binding ruling. We take the view that the provisional view there expressed was wrong.
19. Mr Bennathan seeks to distinguish Jumah on the basis that it applies only to sentences imposed for public protection. He points out, correctly, that in relation to sentences of imprisonment for public protection the minimum period is very likely to be much shorter than those minimum periods imposed in respect of life sentences. He has produced useful statistics which demonstrate that in recent years 76% of minimum terms under a sentence of imprisonment for public protection were for five years or less (see "Unjust Deserts", published by the Prison Reform Trust). That is true, but if the statutory regime permits of the imposition of a determinate sentence consecutive to the minimum period, it seems to us to make no difference, as a matter of legal analysis, that that is likely to follow a much longer minimum period than would be the case if imprisonment for public protection were imposed. Of course that determinate sentence must take into account a very long minimum period such as was imposed in this case, and that determinate sentence must be tailored accordingly, having regard to the principles of totality. In those circumstances a conventional determinate sentence fit for punishing an offender will more readily be imposed where a sentence of imprisonment for public protection has been passed; but it does not follow, as a matter of analysis of the statutory regime, that the court is inhibited from imposing a determinate sentence to run consecutively at the end of the minimum period in respect of a life prisoner.
20. Mr Bennathan also contends that to impose a sentence such as this is to impose a double penalty. The violence of which the appellant was guilty will, he submits, be taken into account by the Parole Board when considering whether it is safe to release him.
21. That may be so, but there can in our view be no question of imposing a double penalty. The purpose of the determinate sentence is to punish the appellant for the offences he committed against the prison officers. Questions of release are for the Parole Board; they are solely concerned with whether the appellant is a danger to the public after the expiry of the minimum term, as extended by the determinate sentence. His behaviour in prison may well affect the consideration of the Parole Board as to whether or not it is safe that he be released. But that, in our view, is plainly a separate issue. It will make no difference to a prisoner. He is confined to the prison in the same way whether he is to serve the minimum period ordered by the sentencing judge or after the tariff has expired. But he is not exposed to a double penalty.
22. Mr Bennathan also contends that the effect of such an order is to exacerbate the uncertainty that any life prisoner (other than a whole life prisoner) faces as to when he is likely to be released. He says that that is an important feature in reaching a contrary conclusion to those already reached by this court in Hills and Jumah.
23. It is true that in R v Costello [2010] 2 Cr App R(S) 94 that was one of a number of considerations which led the court to conclude that where an offender had been released from a sentence for one offence and had committed a further offence, the sentence for that further offence could not be imposed consecutively to the original sentence. That conclusion was founded on the statutory regime, to which we have already referred, contained within section 265 of the Criminal Justice Act 2003, which qualifies the powers to make consecutive sentences. The court referred to the fact that to pass a consecutive sentence to the earlier sentence would have an uncertain effect on the date of release. That was one of the grounds on which the court ruled that the sentence was unlawful. Whilst the effect that the determinate sentence will in reality have on the appellant in relation to his date of release cannot be predicted, the way it works and the machinery of its imposition can be predicted. It can be said with certainty that the passing of the determinate sentence will extend the time for punishment by extending the minimum term which he was otherwise ordered to serve. That is, after all, its point. On the contrary, that he is not to be punished at all for these offences against these prison officers is not acceptable, as the Lord Chief Justice indicated in Jumah.
24. Finally, Mr Bennathan draw attention to the fact that no such sentence could be imposed in respect of a life prisoner ordered to serve a whole life sentence. But the fact that in those circumstances it would not be possible to pass a consecutive sentence provides no warrant for carving out yet another category of those who can escape lawful punishment in the form of a determinate sentence for offences committed whilst in custody serving life imprisonment.
25. For those reasons we reject the submission that it was unlawful to pass these sentences.
26. We have also considered whether the period of three years was too long having regard to the principle of totality and the fact that the appellant is compelled to serve a minimum period which will not expire until 2027. In the light of the facts which we have already identified, we are unable to say that that further period is too long. In our view the judge was correct to impose the sentences that he did.
27. For those reasons this appeal is dismissed.

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