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The Times Law Report
November 10 2000

 

COURT OF APPEAL, CRIMINAL DIVISION

Life sentence 'exceptional circumstances'

Regina v Offen; Regina v McGilliard; Regina v McKeown; Regina v Okwuegbunam; Regina v Saunders (Stephen)

Before Lord Woolf, Lord Chief Justice, Mrs Justice Steel and Mr Justice Richards

Judgment November 9, 2000

 

The policy and intention of Parliament in enacting section 2 of the Crime (Sentences) Act 1997, under which an automatic life sentence could be imposed on a defendant who had committed two serious offences, was to protect the public.

Accordingly, if an offender did not constitute a significant risk to the public that was an exceptional circumstance which would justify a court in not imposing an automatic life sentence.

If the two offences were of a different kind, or if there was a long period which had elapsed between the offences during which the offender had not committed other offences, that could be a very relevant indicator as to the degree of risk to the public that an offender constituted.

If an offender was a significant risk to the public, the court could impose a life sentence under section 2 without contravening the European Convention on Human Rights.

The Court of Appeal, Criminal Division, so held in a reserved judgment when: (i) Allowing the appeal of Matthew Offen against an automatic life sentence imposed pursuant to section 2 of the 1997 Act following his plea of guilty at Lewes Crown Court (Judge Hayward) on May 28, 1999 to robbery. A sentence of three years imprisonment was substituted.

(ii) Dismissing the appeal of Peter Wilson McGilliard against an automatic life sentence imposed following his plea of guilty at Derby Crown Court (Judge Appleby, QC) on May 28, 1999 to wounding with intent to do grievous bodily harm.

(iii) Allowing the appeal of Darren McKeown against an automatic life sentence imposed following his conviction at Durham Crown Court (Judge Spittle and a jury) on May 11, 2000 for causing grievous bodily harm with intent. A sentence of three years imprisonment was substituted.

(iv) Dismissing the appeal of Kristova Okwuegbunam against an automatic life sentence imposed following his plea of guilty at the Central Criminal Court (Judge Stokes) on July 25, 2000 to manslaughter (v) Dismissing a renewed application by Stephen Peter Saunders for leave to appeal against a sentence of 12 years imprisonment imposed following his conviction at the Central Criminal Court (Judge Capsticki, QC and a jury) on March 2, 2000 of five counts each of indecent assault, attempted rape and rape and one count each of buggery and assault occasioning actual bodily harm. A reference by the Attorney-General under section 36 of the Criminal Justice Act 1988 was allowed and an automatic life sentence was substituted.

Article 3 of the European Convention of Human Rights, scheduled to the Human Rights Act 1998, provides: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

Article 5 provides: "1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court..."

Article 7 provides: "1 No one shall be held guilty of any criminal offence on account of any actual omission which did not constitute a criminal offence under national or international law at the time it was committed. Nor shall a heavier penalty be imposed than one that was applicable at the time the criminal offence was committed."

Mr Edward Fitzgerald, QC and Ms Phillippa Kaufmann for Offen; Mr Joel Bennathan, assigned by the Registrar of Criminal Appeals, for McGilliard; Mr Christopher Knox, assigned by the Registrar of Criminal Appeals, for McKeown; Mr Edward Fitzgerald, QC and Mr Daniel Friedman for Okwuegbunam; Mr Alastair Edie for Saunders; Mr David Perry for the Crown.

 

THE LORD CHIEF JUSTICE, giving the judgment of the court, said that the application of section 2 of the 1997 Act had already given rise to a number of decisions by the Court Of Appeal, Criminal Division.

They illustrated the problems which could arise in practice in applying statutory provisions which required the courts to impose an automatic life sentence on certain offenders.

The policy of Parliament for establishing the automatic life sentences emerged clearly from the Government's White Paper Protecting the Public (1996) (Cm 3190).

In paragraph 10.11 it stated: "Too often in the past, those who had shown a propensity to commit serious, violent or sex offences have served their sentences and been released only to offend again.

"In many such cases the danger of releasing the offender has been plain for all to see - but nothing could be done, because once the offender has completed the sentence imposed, he or she has to be released...

"The Government is determined that the public should receive proper protection from persistent violent or sex offenders. That means requiring the courts to impose an automatic indeterminate sentence, and releasing the offender if and only if it is safe to do so."

In R v Buckland ((2000) 1 WLR 1262) Lord Bingham of Cornhill, Lord Chief Justice, described the rationale of section 2 thus: "The section is founded on an assumption that those who have been convicted of two qualifying serious offences present such a serious and continuing danger to the safety of the public that they should be liable to indefinite incarceration and, if released should be liable indefinitely to recall to prison.

"In any case where on all the evidence it appears that such a danger does or may exist, it is hard to see how the court can consider itself justified in not imposing the statutory penalty, even if exceptional circumstances are found to exist.

"But if exceptional circumstances are found, and the evidence suggests that an offender does not present a serious and continuing danger to the safety of the public, the court may be justified in imposing a lesser penalty."

In each of the present cases it was contended that either the interpretation of section 2 of the 1997 Act was affected by article 3 of the Convention, or that section 2 was incompatible with a Convention right so that the appellants were entitled to a declaration of incompatibility.

The following features of section 2 of the 1997 Act would be noted: (i) It referred to two offences having been committed by the offender.

(ii) It was only the second offence, "the trigger offence", which had to have been committed after the commencement of the section. The earlier offence could have been committed at any time.

(iii) When the second offence was committed the offender was required to be over 18 but there was no age requirement in relation to the first offence.

(iv) The proviso of "exceptional circumstances" applied to both offences. The "exceptional circumstances" could relate either to the offences or to the offender but what constituted exceptional circumstances was not otherwise defined by the section.

(v) All offences identified as serious offences were offences for which life imprisonment could be imposed quite apart from section 2.

The Law

The leading authority as to the interpretation of section 2 prior to the coming into force of the 1998 Act was R v Kelly (Edward) ((2000) QB 198). Lord Bingham gave a construction of "exceptional" which had been followed in later cases.

He said (at p208): "We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art ... To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered."

Lord Bingham went on to explain that: "To relieve the court of its duty to impose a life sentence under section 2(2), however, circumstances must not only be exceptional but such as, in the opinion of the court, justify it in not imposing a life sentence, and in forming that opinion the court must have regard to the purpose of Parliament in enacting the section..."

Lord Bingham did not apply his reasoning, that it was necessary to have regard to the purposes of Parliament, when considering whether there were exceptional circumstances.

He applied it to the subsequent question of whether, assuming there were exceptional circumstances, they justified not imposing a life sentence.

That had in some of the cases where section 2 had been applied accentuated the difficulties created by the section.

When deciding whether a situation was exceptional, their Lordships regarded it as being of the greatest importance to have in mind the policy already identified which reflected the intention of Parliament. That was the rationale spelt out by Lord Bingham in Buckland.

In Kelly Lord Bingham went on to consider features contended in that case to establish exceptional circumstances.

The first was the youth of the appellant when committing the first serious offence. That was not regarded as being unusual in that case, because the offender was then already very experienced and, as Lord Bingham said: "The unhappy fact is that many very serious crimes are committed by very youthful offenders".

It was also stated that the time which intervened between the offences could also not be regarded as exceptional. Again, it was suggested that the fact that the serious offences were of different kinds was not exceptional.

Finally, Lord Bingham stated that the court could not "regard the appellant as a man who, on the evidence available when he was sentenced, presented no continuing threat or danger to the public".

That seemed to their Lordships to go to the heart of the issue with which the court in that case had been faced.

The approach adopted in Kelly had naturally been followed in subsequent cases. It had however, been subject to academic criticism as an unduly narrow approach to "exceptional circumstances".

Buckland was described by Lord Bingham as "an almost farcical caricature of a professional bank hold-up. Although obviously distressing to the staff of the bank". In deciding whether or not the court was required to impose a life sentence, the court had looked at various reports and had then come to a judgment that those were exceptional circumstances and those circumstances justified not imposing a life sentence.

Lord Bingham stated that "on all the evidence, it is safe to conclude that the defendant does not present a serious and continuing danger to the public such as could justify the imposition of a life sentence."

It was a striking feature of the reasoning in Buckland, as in Kelly, that the court regarded the rationale of the section as being relevant when the court had already come to its conclusion that there were exceptional circumstances and not as to whether the exceptional circumstances existed.

Their Lordships would suggest that quite apart from the impact of the Human Rights Act, the rationale of the section should be highly relevant in deciding whether or not exceptional circumstances existed. The question of whether circumstances were appropriately regarded as exceptional must surely be influenced by the context in which the question was being asked.

The policy and intention of Parliament was to protect the public against a person who had committed two serious offences. It therefore could be assumed the section was not intended to apply to someone in relation to whom it was established there would be no need for protection in the future.

In other words, if the facts showed the statutory assumption was misplaced, then that, in the statutory context was not the normal situation and, in consequence, for the purposes of the section the position was exceptional.

The time that elapsed between the two serious offences could, but would not necessarily reflect, on whether after the second serious offence was committed, there was any danger against which the public would need protection. The same was true of two differing offences and the age of the offender.

Those were all circumstances which could give rise to the conclusion that what could be normal and not exceptional in a different context was exceptional in that context. If that approach was not adopted, then in the case of the serious offences listed in the section, the gravity of which could vary very greatly, the approach to exceptional circumstances could be unduly restrictive. That was illustrated by the extensive range of situations which could constitute the offence of manslaughter. In R v Turner (Ian) (The Times April 4, 2000, the Court of Appeal came to the conclusion that section 2 had the consequence that a judge could be compelled to pass a sentence of life imprisonment notwithstanding the fact that it offended his sense of justice.

That decision underlined why, notwithstanding the more flexible approach of the Court of Appeal in Buckland, each of the appellants strongly relied upon the 1998 Act.

The Human Rights Act 1998

The appellants contended that, as previously applied, section 2 of the 1997 Act was incompatible with articles 3, 5, 7 and 8 of the Convention.

Article 7

The argument that there was a contravention of article 7.1 had two aspects. Both involved changing the consequences of a conviction of the first serious offence after the date of the offence and after the sentence for which it was imposed. It was submitted that after a punishment for the first serious offence had been imposed, the subsequent coming into force of section 2 increased the penalty for the initial offence since the offender then became liable, if he committed a further serious offence, to be automatically sentenced to life imprisonment.

It was also submitted that section 2 itself increased the penalty for the first serious offence since on conviction of the second serious offence a life sentence would be imposed, in reality, in respect of both offences.

That argument depended upon treating the life sentence as being imposed at least in part for both offences. That was not, however, the manner in which, in their Lordships' judgment, section 2 worked. Section 2 imposed the penalty of the automatic life sentence for the second serious offence.

The imposition of the automatic life sentence was, however, subject to certain conditions. Those were that the offender was 18 or over and that he had been previously convicted of another serious offence. The sentence was not being imposed in relation to the earlier offence.

The position was similar to that considered by the Court of Appeal in R v Taylor (Ronald) ((1996) 2 Cr App R 64) and by the European Commission of Human Rights in Taylor v UK (Application No 31209/96) ((1998) EHRLR 90) which arose out of the changes in making confiscation orders introduced by the Drug Trafficking Offences Act 1986. The serious offences were all sentences in relation to which the court could pass a life sentence quite apart from section 2.

Before imposing a discretionary life sentence, the court would pay the greatest regard to the previous record of the offender. That would not mean that the offender was being sentenced or having his sentence increased for the earlier offences. Here the first offence and the penalty imposed for it remained the same after the coming into force of section 2 of the 1997 Act; it was the penalty for the trigger offence which section 2 changed.

Articles 3 and 5

In approaching articles 3 and 5, it was important to recognise that the 1998 Act was a constitutional instrument introducing into domestic law the relevant articles of the Convention. The consequence of article 3 was that legislation which affected human rights was required to be construed in a manner which conformed with the Convention wherever that was possible.

In R v Governor of Brockhill Prison, Ex parte Evans (No 2) ((2000) 3 WLR 843, 857-858) Lord Hope of Craighead considered the relationship of article 5 and domestic law. He recognised that the question would arise as to whether, assuming that the detention was lawful under domestic law, it was nevertheless open to criticism on the ground that it was arbitrary because, for example, it was resorted to in bad faith or was not proportionate.

Here no question of bad faith arose. In addition, their Lordships recognised that there had been and would be cases where section 2 of the 1997 Act had and would operate in a proportionate manner.

However, as the section had hitherto been interpreted, it could clearly operate in a disproportionate manner. It was easy to find examples of situations where two offences could be committed which were categorised as serious by the section but where it would be wholly disproportionate to impose a life sentence to protect the public.

Whenever a person was convicted of an offence there was always some risk that he or she might offend again. Equally, there were a significant number of cases in which two serious offences would have been committed where the risk was not of a degree which could justify a life sentence. An unjustified push could result in someone falling, hitting his head and suffering fatal injuries.

The offence was manslaughter. The offender might have committed another serious offence when a young man. A life sentence in such circumstances might well be arbitrary and disproportionate and contravene article 5. It could also be a punishment which contravened article 3. The problem arose because of the restricted approach which had so far been adopted to the interpretation of exceptional circumstances in section 2.

If exceptional circumstances were construed in a manner which accorded with the policy of Parliament in passing section 2, the problem disappeared. Section 2 established a norm. The norm was that those who committed two serious offences were a danger or risk to the public. If in fact, taking into account all the circumstances relating to a particular offender, he did not create an unacceptable risk to the public, he was an exception to that norm.

If the offences were of a different kind, or if there was a long period which elapsed between the offences during which the offender had not committed other offences, that might be a very relevant indicator as to the degree of risk to the public that he constituted. Construing section 2 in accordance with the duty imposed upon their Lordships by article 3 of the Convention, and taking into account the rationale of the section as identified by Lord Bingham, gave content to "exceptional circumstances".

In their Lordships' judgment, section 2 would not contravene Convention rights if courts applied the section so that it did not result in offenders being sentenced to life imprisonment when they did not constitute a significant risk to the public. Whether there was significant risk would depend on the evidence before the court. If the offender was a significant risk, the court could impose a life sentence under section 2 without contravening the Convention. Under section 2 it would be part of the responsibility of judges to assess the risk to the public that offenders constituted.

In many cases the degree of risk that an offender constituted would be established by his record with or without the assistance of assessments made in reports which were available to the court. If a court needed further assistance they could call for it. The courts had traditionally had to make a similar assessment when deciding whether a discretionary life sentence should be imposed.

That did not mean that their Lordships were approaching the passing of an automatic life sentence as though it was no different from the imposition of a discretionary life sentence. Notwithstanding the interpretation resulting from the application of article 3.1 of the Convention suggested, section 2 would still give effect to the intention of Parliament. It would do so, however, in a more just, less arbitrary and more proportionate manner. Section 2 would still mean that a judge was obliged to pass a life sentence in accordance with its terms unless in all the circumstances the offender posed no significant risk to the public. There was no such obligation in cases where section 2 did not apply. In addition if the judge decided not to impose a life sentence under section 2 he would have to give reasons as required by section 2(3).

Furthermore, the issue of dangerousness would have to be addressed in every case and a decision made as to whether or not to impose a life sentence. The objective of the legislature identified by Lord Bingham would be achieved, because it would be mandatory to impose a life sentence in situations where the offender constituted a significant risk to the public. Section 2 therefore provided a good example of how the 1998 Act could have a beneficial effect on the administration of justice without defeating the policy which Parliament was seeking to implement.

In view of their Lordships' conclusions as to the impact of articles 3 and 5, in was not necessary to consider article 8.

Solicitors: Moss & Co, Clapton (for Offen); Bindman & Partners, King's Cross (for Okwuegbunam); Tyndallwoods, Birmingham (for Saunders); Crown Prosecution Service, Headquarters.

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