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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 >> Offen, R. v  EWCA Crim 96 (09 November 2000)
Cite as:  1 WLR 253,  1 Cr App Rep 24,  Prison LR 283,  1 Cr App R 24,  1 Cr App Rep 372,  1 Cr App R 372,  WLR 253,  EWCA Crim 96,  2 All ER 154,  2 Cr App R (S) 10,  2 Cr App Rep (S) 10,  Crim LR 63
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B e f o r e :
(The Lord Woolf of Barnes)
MRS JUSTICE STEEL
MR JUSTICE RICHARDS
| R E G I N A
- v -
|MATTHEW BARRY JAMES OFFEN
|PETER WILSON McGILLIARD
|STEPHEN PETER S
Smith Bernal, 190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
2000/02939/Z5: MR JOEL BENNATHAN appeared on behalf of THE APPLICANT McGILLIARD
MR DAVID PERRY appeared on behalf of THE CROWN
2000/03507/W2: MR CHRISTOPHER JOHN KNOX appeared on behalf of THE APPELLANT McKEOWN
MR DAVID PERRY appeared on behalf of THE CROWN
2000/04827/Z1: MR EDWARD FITZGERALD QC and MR DANIEL FRIEDMAN appeared on behalf of THE APPLICANT OKWUEGBUNAM
2000/01871/S2: MR DAVID PERRY appeared on behalf of THE CROWN
2000/01913/R2: MR DAVID PERRY appeared on behalf of THE ATTORNEY GENERAL
MR ALASTAIR EDIE appeared on behalf of THE OFFENDER STEPHEN PETER S
Crown Copyright ©
"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. Too often, victims have paid the price when the offender has repeated the same offences. 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."
"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."
"3(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."
"(1)This section applies where --
(a)a person is convicted of a serious offence committed after the commencement of this section; and
(b)at the time when that offence was committed, he was 18 or over and had been convicted in any part of the United Kingdom of another serious offence.
(2)The court shall impose a life sentence, that is to say --
(a)where the person is 21 or over, a sentence of imprisonment for life;
(b)where he is under 21, a sentence of custody for life under section 8(2) of the Criminal Justice Act 1982 ('the 1982 Act'),
unless the court is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so. [emphasis added]
(3)Where the court does not impose a life sentence, it shall state in open court that it is of that opinion and what the exceptional circumstances are.
(4)An offence the sentence for which is imposed under subsection (2) above shall not be regarded as an offence the sentence for which is fixed by law.
(5)An offence committed in England and Wales is a serious offence for the purposes of this section if it is any of the following, namely --
(a)an attempt to commit murder, a conspiracy to commit murder or an incitement to murder;
(b)an offence under section 4 of the Offences Against the Person Act 1861 (soliciting murder);
(d)an offence under section 18 of the Offences Against the Person Act 1861 (wounding, or causing grievous bodily harm, with intent);
(e)rape or an attempt to commit rape;
(f)an offence under section 5 of the Sexual Offences Act 1956 (intercourse with a girl under 13);
(g)an offence under section 16 (possession of a firearm with intent to injure), section 17 (use of a firearm to resist arrest) or section 18 (carrying a firearm with criminal intent) of the Firearms Act 1968; and
(h)robbery where, at some time during the commission of the offence, the offender had in his possession a firearm or imitation firearm within the meaning of that Act."
(i)It refers to two offences having been committed by the offender.
(ii)It is only the second offence ('the trigger offence') which has to have been committed after the commencement of the section. The earlier offence may have been committed at any time.
(iii)When the second offence is committed the offender is required to be over `18 but there is no age requirement in relation to the first offence.
(iv)The proviso of "exceptional circumstances" applies to both offences. The "exceptional circumstances" can relate either to the offences or to the offender but what constitutes exceptional circumstances is not otherwise defined by the section.
(v)all offences identified as serious offences are offences for which life imprisonment could be imposed quite apart from section 2.
"The grounds relating to dates and allegedly inconsistent verdicts are not made out; inevitably after such a lapse of time dates would be uncertain and the jury was entitled to convict as they did. The learned judge dealt properly with the evidence of bad character that had been introduced. The verdicts were not inconsistent with the medical evidence, which was placed before the jury in a form as favourable to you as could have been arranged. There is nothing in the point you make about the cross-examination or alleged failure to cross-examine. As to the summing up, that was at times lacking in clarity, but the agreed summary placed before the jury at the end sufficiently remedied any deficiencies. The convictions are not unsafe".
"We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. 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."
"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 not imposing a life sentence, and in forming that opinion the Court must have regard to the purpose of Parliament in enacting the section as derived from the Act itself and the White Paper . . ."
"the section lumped all these offences together and there is nothing to suggest that the imposition of a life sentence should depend on whether the offender has repeated the same 'serious offence' or committed another. It is scarcely unusual for a defendant convicted of robbery involving the use of firearms on one occasion to be convicted of causing grievous bodily harm with intent on another."
(i)these were exceptional circumstances and
(ii)these circumstances justified not imposing a life sentence.
"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."
"Article 3: Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 5: Right to Liberty and Security
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.
4.Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
(i)That on 4 December 1998 the appellant committed a grave offence sufficient to warrant a substantial prison sentence.
(ii)That the appellant presents a serious and continuing danger to the public.
"Whether in accordance with Article 7 of the European Convention on Human Rights and section 3 of the HRA 1998, section 2(1)(b) of the Crime (Sentences) Act 1997 must be read to mean 'at the time when that offence was committed, he was 18 or over and had been convicted after the date on which this section came into force, in any part of the United Kingdom of another serious offence'. In other words, whether it is necessary to read into the section the phrase 'after the date on which this section came into force' in order to prevent a retrospective aggravation of the penalty that was applicable for the original offence at the time it was committed."