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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Johnson, R v  EWCA Crim 2486 (20 October 2006)
Cite as:  1 Cr App R (S) 112,  1 All ER 1237,  1 WLR 585,  1 CAR (S) 112,  Crim LR 177,  WLR 585,  EWCA Crim 2486, (2007) 171 JP 172,  1 Cr App Rep (S) 112
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COURT OF APPEAL (CRIMINAL DIVISION)
(1) ON APPEAL FROM CROWN COURT at LIVERPOOL
HIS HONOUR JUDGE GLOBE
(2)ON APPEAL FROM SOUTHWARK CROWN COURT
HIS HONOUR JUDGE LORRAINE SMITH
(3)ON APPEAL FROM CROWN COURT AT SHEFFIELD
HIS HONOUR JUDGE BULLIMORE
(4)ON APPEAL FROM WINCHESTER CROWN COURT
HIS HONOUR JUDGE CUTLER
(5)ON APPEAL FROM SHEFFIELD CROWN COURT
HIS HONOUR JUDGE GOLDSACK QC
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE GOLDRING
MR JUSTICE OWEN
|- v -
(4) Reference by HM Attorney General (Jones)
(2) Counsel for Hamilton: Miss A Piercy
(3) Counsel for Lawton: Mr D Singh
(4) Counsel for the Attorney General: Mr J Laidlaw
(4) Counsel for Jones: Mr R. Brown
(5) Gordon (non-counsel renewed application)
Hearing date : 3rd October 1006
Crown Copyright ©
President of the Queen's Bench Division :
"The assessment of dangerousness
(1) This section applies where
(a) a person has been convicted of a specified offence and
(b) it falls to a court to assess under any of sections 225 to 228 whether there is a significant risk to members of the public of serious harm occasioned by the commission by him of further such offences
(2) If at the time when that offence was committed the offender had not been convicted in any part of the United Kingdom of any relevant offence or was aged under 18, the court in making the assessment referred to in sub-section (1)(b)
(a) must take into account all such information as is available to it about the nature and circumstances of the offence,
(b) may take into account any information which is before it about any pattern of behaviour of which the offence forms part, and
(c) may take into account any information about the offender which is before it.
(3) If at the time when that offence was committed the offender was aged 18 or over and had been convicted in any part of the United Kingdom of one or more relevant offences, the court must assume that there is such a risk as is mentioned in subsection (1)(b) unless, after taking into account –
(a) all such information as is available to it about the nature and circumstance of each of the offences,
(b) where appropriate, any information which is before it about any pattern of behaviour of which ay of the offences forms part, and
(c) any information about he offender which is before it,
the court considers that it would be unreasonable to conclude that there is such a risk.
(4) In this Chapter "relevant offence" means –
(a) a specified offence…."
"The court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission…of further specified offences".
This provision is common to sections 225 to 228. In this judgment therefore, when we speak of dangerousness, we shall use the same convenient shorthand. But it is a shorthand, and following Lang, we emphasise that there are two distinct requirements to a finding of dangerousness for the purposes of section 225.
(i) Just as the absence of previous convictions does not preclude a finding of dangerousness, the existence of previous convictions for specified offences does not compel such a finding. There is a presumption that it does so, which may be rebutted.
(ii) If a finding of dangerousness can be made against an offender without previous specified convictions, it also follows that previous offences, not in fact specified for the purposes of section 229, are not disqualified from consideration. Thus, for example, as indeed the statute recognises, a pattern of minor previous offences of gradually escalating seriousness may be significant. In other words, it is not right, as many of the submissions made to us suggested, that unless the previous offences were specified offences they were irrelevant.
(iii) Where the facts of the instant offence, or indeed any specified offences for the purposes of section 229(3) are examined, it may emerge that no harm actually occurred. That may be advantageous to the offender, and some of the cases examined in Lang exemplify the point. Another such example is R v Isa  CLR 356. On the other hand the absence of harm may be entirely fortuitous. A victim cowering away from an armed assailant may avoid direct physical injury or serious psychological harm. Faced with such a case, the sentencer considering dangerousness may wish to reflect, for example, on the likely response of the offender if his victim, instead of surrendering, resolutely defended himself. 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.
Nothing in the decision in R v Shaffi (2006) EWCA 418, which was relied on before us, suggests the contrary. Giving the judgment of the court, at paragraph 11, Sir Richard Curtis summarised the various submissions made on behalf of the appellant. One of them was that the appellant's previous convictions demonstrated that although the appellant was carrying a knife and a screwdriver in two of the cases, no harm was actually occasioned. The court accepted the force of the overall submission made by counsel that the sentencer was wrong to find that there was a risk of serious harm, and the court was unable to find significant evidence of such harm caused during the commission of the appellant's previous offences. However the conclusion represented a finding of fact in the particular case. 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 Shaffi, decided, it would, in effect, have re-written the statute.
(iv)We considered arguments based on the inadequacy, suggestibility, or vulnerability of the offender, and how these and similar characteristics may bear on dangerousness. Such characteristics may serve to mitigate the offender's culpability. In the final analysis however they may also serve to produce or reinforce the conclusion that the offender is dangerous. In one of the instant cases it was suggested that the sentence was wrong because an inadequate offender had suffered what was described as an "aberrant moment". But, as experience shows, aberrant moments may be productive of catastrophe. The sentencer is right to be alert to such risks of aberrant moments in the future, and their consequences.
(v) In Lang, Rose LJ suggested that the prosecution should be in a position to describe the facts of previous specified offences. This is plainly desirable, (see also Isa) but this is not always practicable. There is no reason why the prosecution's failure to comply with this good practice, even when it can and should, should either make an adjournment obligatory, or indeed preclude the imposition of the sentence, when appropriate. In any such case, counsel for the defendant should be in a position to explain the circumstances, on the basis of his instructions. If the Crown is not in a position to challenge those instructions, then the court may proceed on the information it has. Equally, there are some situations in which the sentence imposed by the court dealing with earlier specified offences may enable the sentencer to draw inferences about its seriousness, or otherwise. In short, failure to comply with best practice on this point should be discouraged, but it does not normally preclude the imposition of the sentence.
(vi) The effect of the 2003 Act, and Lang, has been examined in a number of cases. It is not obligatory for the sentencer to spell out all the details of the earlier specified offences. To the extent that a judge is minded to rely upon a disputed fact in reaching a finding of dangerousness, he should not rely on that fact unless the dispute can fairly be resolved adversely to the defendant. In the end, the requirement is that the sentencing remarks should explain the reasoning which has led the sentencer to the conclusion.
(i) In cases to which section 229(3) applies, where the sentencer has applied the statutory assumption, to succeed the appellant should demonstrate that it was unreasonable not to disapply it. Equally, where the Attorney General has referred such a case because the sentencer has decided to disapply the assumption, the Reference will not succeed unless it is shown that the decision was one which the sentencer could not properly have reached.
(ii) This court is normally not assisted by reference to previous individual cases where there appears to be some similarity with the instant case. We hesitate to remind advocates that individual sentencing decisions are fact specific, and that it is rare for reports of sentencing cases to provide guidance about principle, or indeed to set out all the details of the information before the court which are no more than summarised.
"It could therefore be said that Jamie Lawton continues to pose some risk to the public, although, looking at arsonists as a whole, he would not be in the highest risk group of that sub-set of the population"
"Given the pattern of drink related offending I assess the risk of further offending at a moderate level. Should Mr Lawton complete a detoxification then it is reasonable to conclude that this risk could be lowered. His lack of awareness of the serious nature of arson is of concern in this case. I assess that the risk of him causing serious harm to the public as also being at a moderate level."
Reference by HM Attorney General (Jones)