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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 >> Kelly, R v  EWCA Crim 1751 (16 July 2001)
Cite as:  Crim LR 836,  EWCA Crim 1751,  1 Cr App R (S) 85,  1 Cr App Rep (S) 85
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Monday 16th July 2001
B e f o r e :
MR JUSTICE HOLMAN
THE COMMON SERJEANT
(His Honour Judge Beaumont QC)
(Sitting as a Judge of the Court of Appeal Criminal Division)
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MR B WARNER appeared on behalf of the Crown
Crown Copyright ©
"In the circumstance the law requires me to pass a life sentence in accordance with the Crime (Sentences) Acts.
He said, and in the judgement of this court rightly said, that what are sometimes described as the Hodgson criteria, that is to say the criteria for the imposition of a discretionary life sentence identified by this court in the case of Hodgson 52 Cr App R 113, did not apply to a case covered by section 2. This case was prima facie covered by section 2 because Mr Kelly had committed two relevant serious offences, and only if there were exceptional circumstances could he not be sentenced to a period of life imprisonment. The learned trial judge said that Mr Kelly should serve at least four years, the specified period before the case could be considered by the parole board, that implying, though he did not specifically say this: that the appropriate determinate sentence, had Mr Kelly not been subject to the life sentence regime, would have been a period of six years' imprisonment.
We remind ourselves of the terms of section 2 of the 1997 Act which provides that when a person has been convicted of two serious offences, that is the case of Mr Kelly, the court shall impose a life sentence:
"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."
"The leading authority as to the interpretation of section 2 prior to the coming into force of the 1998 Act is the decision of this court in R v Kelly. In that case the then Chief Justice, Lord Bingham, gave a construction of 'exceptional' which has been followed in later cases. He said:
'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.'"
"No criticism of 'exceptional' was made by any of the counsel appearing in the appeals, and we consider that the issues which arise on the appeals do not cast any reflection upon its appropriateness now that the European Convention on Human Rights is part of our law. We therefore gratefully adopt it.
Lord Bingham then 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 not imposing a life sentence, and in forming that opinion that Court must have regard to the purpose of Parliament in enacting the section as derived from the Act itself and the White Paper ...'"
"We must, however, accept ... that the object of section 2 was to alter the existing law by extending the power and imposing a duty to impose a life sentence."
"Lord Bingham did not apply his reasoning, that it is necessary to have regard to the purposes of Parliament when considering whether there are exceptional circumstances. He applied it to the subsequent question of whether, assuming there are exceptional circumstances, they justify not imposing a life sentence. This has in some of the cases where section 2 has been applied accentuated the difficulties created by the section. We draw attention to this, since when deciding whether a situation is exceptional, we regard it as being of the greatest importance to have in mind the policy already identified which reflects the intention of Parliament. That is the rationale spelt out by Lord Bingham in the case of Buckland."
"In Buckland  1 WLR 1262 Lord Bingham of Cornhill CJ described the rationale of section 2 in these terms:
'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 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.'"
"We would suggest that quite apart from the impact of the Human Rights Act [of 1998], the rationale of the section should be highly relevant in deciding whether or not exceptional circumstances exist. The question of whether circumstances are appropriately regarded as exceptional must surely be influenced by the context in which the question is being asked.
The policy and intention of Parliament was to protect the public against a person who had committed two serious offences. It therefore can 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 this, in the statutory context was not the normal situation and in consequence, for the purposes of the section, the position was exceptional."
"No need to protect the public in the future." (Offen paragraph 79).
"No significant risk to the public."(Offen paragraph 103).
"The Commission notes that the Court of Appeal has now expressed the view that 'whatever a person is convicted of an offence, there is always some risk that he or she may offend again. Equally, there are a significant number of cases in which two serious offences will have been committed where the risk is not of a degree which can justify a life sentence ... if in fact, taking account all of the circumstances relating to a particular offender, he does not create an unacceptable risk to the public, he is an exception to this norm.' This is in contrast with the approach adopted by the Court of Appeal in Kelly, where it was stated 'we cannot regard the appellant as a man who, on the evidence available when he was sentenced, presented no continuing threat or danger to the public'. (Commission's emphasis)"
"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 is true of two differing offences, and the age of the offender. These are all circumstances which could give to the conclusion that what could be normal and not exceptional in a different context was exceptional in this context."
"This man is not mentally ill. His past history contains one single serious offence for which he served a long sentence. I do not think he qualifies to be categorised as a personality disorder/psychopathic disorder. He would appear to have had quite a serious drink problem, though not perhaps reaching the level of alcoholism. It would not seem that alcohol was a major factor in this offence. He does not abuse drugs. His present mental state does not warrant any particular psychiatric intervention. He is fit to cope with any punishment awarded by court."
"From a psychiatric point of view, Mr Kelly could not be regarded as having a propensity for dangerous behaviour which is not amenable to treatment."