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Cite as: [2009] EWCA Crim 2259

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Neutral Citation Number: [2009] EWCA Crim 2259
Case No: 2009/3226/C5


Royal Courts of Justice
London, WC2A 2LL
27 October 2009

B e f o r e :

Lord Justice Hughes




Computer Aided Transcript of the Stenograph Notes of
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Mr Tim Barker QC and Miss S Rodham appeared on behalf of the Applicant
Miss Sally O'Neill QC appeared on behalf of the Crown



Crown Copyright ©

  1. THE VICE PRESIDENT: This applicant was one of three people convicted by a jury of the relatively new offence of causing or allowing the death of a child, contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004. He does not challenge the conviction. The judge passed a sentence based upon a determinate term of six years' imprisonment, but he concluded that in addition to the commission of this offence the applicant presented a significant risk of causing serious harm to members of the public in future through the commission of further specified offences. For that reason he imposed a sentence of imprisonment for public protection, an indeterminate sentence. Having done that, he correctly converted what would otherwise have been the determinate term to a minimum term to be served before giving any consideration to release on licence. By statute that had to be half of the determinate term. Thus the sentence was imprisonment for public protection with a minimum term of three years.
  2. Owen does not challenge the six year basis for the sentence. He contends only that there was no proper basis for concluding that he represented a significant risk of causing serious harm to the public through committing more specified offences in the future.
  3. The applicant had stood trial together with the mother of the child and her boyfriend. The mother had four children in all. At the relevant time they were aged from seven down to something under two. They were all living with her. Her youngest, Peter, was the child who tragically died. He had been born on 1st March 2006. He died when he was only 17 months old on 3rd August 2007.
  4. The mother and the boyfriend had been a couple since about June 2006 - that is for about 13 or 14 months before the child died. The boyfriend had been at first a frequent visitor to her home and from about November 2006 at the latest was living there all the time. That then was nine months or thereabouts before the child died.
  5. This present applicant is the brother of the boyfriend. He moved into this household at about the end of June 2007, about five weeks or so before the child died. He is a divorced man. Three of his own children, aged (then) 14 down to not quite eight were living with him without complaint about their circumstances and he brought them with him to the household of mother and her boyfriend. The occasion of his move there does him little credit. It appears that he had recently taken up with a new girlfriend, NG, who was only 15 years old. She had run away from home. She was plainly besotted with him, but he took her in and he needed somewhere to live with her where her father, as he hoped, would not find her. The result was that she and the applicant and his three children were added to the household for those final five weeks or so before Peter died.
  6. We can take from the judge's meticulous summing-up a summary of the distressing catalogue of injuries which Peter demonstrated over a period of as long as 10 months before his death. We remind ourselves that some of them were seen before he died and some discovered only after his death.
  7. From October 2006 to July 2007 he presented from time to time at the doctor's surgery or at hospital with bruising to various parts of his body: his buttocks, his head, his back and his legs; damage to his fingers with missing nails; lesions and scabs to the top of his head and a missing toenail. After he died it was found he had significant recent non-accidental injuries which caused or contributed to his death. There were fractures to his ribs inflicted probably between seven to ten days and two weeks before death, a broken spinal cord inflicted at most three or four days before death and at some time on the day before he died the forceful knocking into his mouth of a tooth which he ended up ingesting.
  8. The trial took something like nine weeks and was plainly an exhaustive investigation of the evidence about this child's death. It was impossible at the end for the jury to resolve the question of who had inflicted those injuries which had been maliciously done, as some of them clearly must have been. No defendant as a result was convicted of either murder or manslaughter. All three were convicted of the offence contrary to section 5 of the 2004 Act. As the Lord Chief Justice made clear in Ikram & Parveen [2008] 2 CrAppR 24 at 347, this offence spans a very wide range of misconduct. At its upper end, where what is involved is causing the death of the child, it may very well be close to the offence of manslaughter. At the lower end, where it is allowing rather than causing the death, it may be little more than the lack of will in a dominated weak person who fails to stand out for the sake of the child against what he or she knows is going on. What is certainly clear is that the essence of this offence in many cases will be a culpable failure to protect the child from others rather than the use of physical violence oneself. That failure may be more or less culpable according to the circumstances of the principal perpetrator and of the second defendant.
  9. Whatever may have been the position so far as the mother and the boyfriend were concerned, and they are not before us, the case against this applicant was, at least by the end of this long trial, a case of alleged neglect and failure to protect and not of any physical violence. He had been initially charged with murder, as we understand it more on the basis that he somehow associated himself with the acts of others than anything else, but at the conclusion of the whole of the evidence it was plain that that could not be made out and the judge withdrew that count and its associated alternative of manslaughter from the jury.
  10. It follows, and it is important to recognise, that the defendant was convicted on the basis that his guilt consisted in failing to do something about what was happening to the child at the hands of someone else. That was the basis of the conviction and the judge correctly passed sentence on that basis. Sadly, a complete lack of care was ingrained in this household and this defendant did nothing about it. As the judge rightly pointed out, part of this man's concern had been to avoid any investigation which might lead to the discovery of where he and his underage girlfriend were living. There was, the judge accepted, evidence that he had at one point suggested to mother that the baby ought to be taken to hospital. That much he had done, but when she refused he did nothing more. It is apparent that the judge took a different view of the boyfriend. For this same offence he passed on him a sentence of 12 years' imprisonment. He also took a different view of mother. In her case he passed an indeterminate sentence, but it was based upon a determinate term of 10 years. As we have said, even on the basis that we have described of failing to do anything about what was happening to this child the determinate term gauged according to this defendant's role and culpability over those five weeks or so was a substantial sentence of six years and there is no complaint about that.
  11. It is important therefore to understand that the comparatively narrow issue which we are obliged to confront does not principally depend upon any allocation of responsibility as between defendants for the death of this child. That has been dealt with by the judge and is not in issue. The sole issue in the present case is whether there was a sound basis for the additional finding that this man represented a significant risk to the public of serious harm in the future because he might commit other specified offences. It is plain law that the indeterminate sentence of imprisonment for public protection does not exist in order to pass additional punishment or retribution on the defendant. It exists so that in an appropriate case the necessary protection can be given to the public against future risk. That is separate from past misdeeds. As has often been observed, a sentence of imprisonment for public protection is very closely akin to a life sentence. It is indeterminate in length. The defendant cannot be released unless and until he satisfies the Parole Board that he does not represent a danger to the public. If he should do that and be released his release is on licence. His licence can be revoked at any time administratively by the Secretary of State, in reality by the National Offender Management Service, without the need for any further court involvement. If it is revoked the revocation is subject only to the power of the Parole Board to reconsider the case and order release. Such a licence in the event of an indeterminate sentence being passed potentially lasts for life, although there is provision for removing it 10 years after release if the Parole Board is satisfied that that can safely be done. Such a sentence, akin to a life sentence, is justified if there is a significant risk that the defendant will cause serious harm to the public by committing more of the offences specified in schedule 15 of the Criminal Justice Act 2003 in the future. Conversely, it cannot be justified unless that risk exists. The risk has to be one of "serious harm". Serious harm is defined in the statute by Parliament in section 224(3). It means "death or serious personal injury, physical or psychological". As this court has said on other occasions, that is a definition which because it justifies so severe a sentence must not be watered down - see, for example, Lang [2006] 2 CrAppR (S) 3, Johnson [2007] 1 CrAppR (S) 112, and Pedley, Martin and Hamadi [2009] EWCA Crim 840 which last case would not have been available to the judge when he was passing sentence in April 2009.
  12. This defendant was 37 when he came to be sentenced. In the preceding 20 years, since he was 16 or thereabouts, he had been convicted on four previous occasions. When he was 16 and again when he was 18 he was convicted of stealing and of burglary. For those offences the magistrates and the juvenile court had fined him and put him on probation. Once, when he was 20, he had been found carrying a weapon and had been fined. Then 13 years after that, in April 2005 when he was 33, he had been before the court for two more burglaries and an offence of arson. We shall need to return to the arson. The burglaries had been committed to provide money for a drug habit. It does him no credit but it is true of a very large number of burglars. By the time he was before the court he was plainly and genuinely trying to abandon the drug habit. He had consulted the CARAT team, he had voluntarily attended Narcotics Anonymous, he had sought help from his local chapel and elsewhere. The court then dealing with him took a risk in making a Drug Treatment and Testing Order. The risk turned out to be justified because the order was completed satisfactorily. His tests for drugs were negative and there was no recurrence of the burglary or other similar offences. Four years later when sentenced for the present offence his account was that he no longer used any kind of drug, including cannabis which he had given up more gradually. It is right to say that he is not a wholly reliable witness, but there was no evidence to the contrary. Certainly it appears that he did conquer a one-time dependence on class A drugs.
  13. In passing the sentence that he did and adding the indeterminate sentence, the judge identified four factors which led him to do so. They were all features of this defendant to which the author of the pre-sentence report had drawn attention. The first was this:
  14. "In taking a 15-year-old girl and your own children into a situation that you must have realised was laden with problems, you demonstrated a very severe distortion in your capacity to recognise and think through what was going on around you..."

    That, if we may respectfully say so, is undoubtedly true. It is a mark of no little irresponsibility in this defendant. It is not, however, as it seems to us, certainly by itself, any indication of a significant risk that he would cause serious harm in the sense that the statute uses it, in future, by committing further specified offences. What might be relevant, if there were elsewhere sufficient evidence of significant risk, is that irresponsibility is one of his characteristics. But those who are irresponsible and those who are guilty of distorted thinking are, it is trite to say, not necessarily also dangers of death or serious personal injury.

  15. The second factor was this:
  16. "You ignored Peter's needs, the needs of a child obviously at risk, preferring instead to shield yourself and your entourage from discovery..."

    That is also certainly true. It shows, as it seems to us, that the defendant is somewhat self-centred; perhaps rather weak. Again, however, it is not a sufficient indication of future offending, let alone of future offending such as to cause death or serious injury to individuals. Given, as it must be, that past behaviour is some indicator of possible future behaviour, it does not seem to us that to say that this man failed to protect Peter, as to his shame he undoubtedly did, means that there is not just some but a significant risk that he will therefore occasion serious personal injury to somebody in the future.

  17. The judge's third factor referred to the defendant's previous offending and in doing so the offence that he had in mind, he made it clear, was the offence of arson. That previous conviction is, as it seems to us, by some distance the largest single factor which might potentially lead to a conclusion that an indeterminate sentence might be necessary to protect the public. Arson is an obviously dangerous offence but, much more, it can often betoken a dangerous imbalance in the perpetrator which is a real sign of future danger through similar or other dangerous activity.
  18. The information which the judge had came principally from the probation officer's report. In paragraph 4.6 of that report the probation officer described the previous offence of arson as "very worrying". He went on to say this:
  19. "The crown's facts as revealed through information I have obtained from agency records details that Mr Owen was on 12th March 1999 asked to move to temporary accommodation with his four children and wife, this whilst the local authority made inquiries about an allegation of harassment. The Owen family, expecting to be moved, was advised that they would in fact have to stay where they were for a while longer. On 20th March 1999 a neighbour saw smoke coming from the premises they had moved from, and reported the matter. The purpose of setting the fire was to ensure that he and his family were not placed back there. My understanding is that about 5,000 worth of damage was done..."

    In the following paragraph the probation officer describes the building in question as having been a "multi-occupancy dwelling". If it had been that would no doubt have increased the risk, although the risk is necessarily there in any offence of arson. What he had done was to set fire to some newspapers in the sitting room and leave the house unoccupied.

  20. There is available to us a record of the findings of the judge who had to deal with him for that offence. That judge had the facts of the matter fully opened. It was not a multi-occupancy building. He also had a good deal of information. He had a full pre-sentence report and he had a thorough assessment of the defendant for the purposes of deciding whether or not he was somebody with whom the risk of a Drug Treatment and Testing Order could or could not be taken. On top of that he had a psychiatric report. It was after considering all that material that the judge said of the arson:
  21. "... you set fire quite deliberately to your temporary housing... You set fire to it in desperation. It is a serious thing to do. Any arson is a serious matter. The dangers of fire, particularly when set in a dwelling-house are well-known. This can only be dealt with by a custodial sentence. At the same time I regard it as a one-off in stressed circumstances. I don't regard you as a fire raiser and I consider the risk of you committing a similar offence is very low."

    It is apparent that whatever other information the author of the pre-sentence report before the judge on this occasion may have had, he cannot have had that. We have also seen the psychiatric report which was available on that earlier occasion. It fully justified the conclusions of the judge which we have just set out. This defendant at that stage demonstrated what was reported to the judge as a convincing attitude to change and a determination to abstain from illegal drugs in the future. No court can fail to know that such protestations are often made. In this case the defendant seems to have managed to justify them.

  22. Lastly, and fourthly, the judge referred to the defendant having sought to minimise his own involvement in culpability in the present offence. The defendant had not given evidence. He had certainly told the probation officer that he was not responsible for any physical injury to the baby, but as we have endeavoured to point out there was no evidence that he had been. The present probation officer's conclusion that the defendant had minimised his responsibility looks from the report to be based upon the supposition that the case against this defendant was one of joint responsibility in some manner for the physical injuries. That is not an error which the judge made, but it does appear to be a misapprehension underlying the pre-sentence report. Quite how far this defendant was able to face up to the justified criticisms of his joining this household and keeping quiet about what he must have known was going on it is very difficult to tell and it may be that there was a degree of reluctance to confront his own failings. That, however, is unhappily a common characteristic of defendants in a wide range of offences. It is certainly not by itself a sound indication of a future risk of death or serious personal injury.
  23. We remember of course that the risk assessment process does not consist in taking factors in isolation but in looking at them cumulatively. In citing those four factors the judge was summarising some, but not all, of the matters which had concerned the author of the pre-sentence report. In this court, on the applicant's behalf, Mr Roberts QC has mounted a sustained attack on some other parts of the pre-sentence report. As we have said, there are indications in it that the author was insufficiently informed, perhaps through no fault of his own, of the proper basis of the case against this applicant. The judge certainly did not fall into those errors, but he, in the end, adopted the conclusion that the probation officer arrived at. It is significant that even with the misconceptions that we have mentioned (and others) the way in which the author of the pre-sentence report expressed his conclusions was tentative. He said this:
  24. "My concern would be that having demonstrated an attitude of obliviousness by his not doing that which he should have done, renders him liable (sic) of doing the same thing again, should such unusual circumstances repeat themselves."

    A little later he said this:

    "... my overriding observation is that Mr Owen has the capacity to behave in a way that suggests future serious offending, its motivation and occurrence is though difficult to predict. It seems that he has the ability to do random, possibly drug driven things and become dangerous to those around him when he is set on a single minded course of behaviour."

    And at the end:

    "My main concern is that he unwittingly has the potential to cause serious psychological if not physical harm to others, and has the capacity to offend seriously in random ways that are difficult to predict."

    Those were, taken at their highest, very tentative expressions of future risk. To say the man has the capacity to offend again is not the same as saying he is at significant risk of causing death or serious personal injury.

  25. It does seem to us that it may be that this defendant has a sufficient patchwork of rather disconnected previous offences and a sufficiently feckless and irresponsible outlook on life to have at any rate some possible potential to commit an offence in future which might cause harm and, it may be, serious harm, to someone. As the probation officer recognised, whether that might happen or not is largely speculative. Some risk of serious harm is not the test. If it were there would be an enormous number of defendants who need to be in prison indefinitely. The test is the existence of a significant risk, enough to warrant a sentence which may never end. This man has no history of either violence or exploitative or dangerous sexual offending. The probation officer said of him:
  26. "Outside of the confines of the present case, all the people I have spoken to, including the family social worker, have seen no evidence written or otherwise of him being violent."

    His present offence is deeply unpleasant because a completely innocent child whom he could have protected was not protected by him against harm by others. He displays a willingness to deceive, in particular the father of his girlfriend, which is unattractive. But to translate that into a significant risk that he will himself in the future commit offences involving death or serious personal injury to the public is, on the material which was available to the judge and is available to us, simply a step too far.

  27. We are satisfied that this appeal must be allowed to the extent of quashing the sentence of imprisonment for public protection. There is nothing remotely wrong with the substantial sentence of six years. We substitute for the sentence of imprisonment for public protection with a minimum term of three years a determinate sentence of six years. The same number of days spent in custody prior to sentence, agreed at 289, will count towards the sentence in the same way as they do for everybody else. To that extent this appeal is allowed.
  28. MR ROBERTS: My Lord I am most grateful. May I invite your Lordships to consider the propriety of granting a representation order.
  29. THE VICE PRESIDENT: Of course. It was an application for leave. Yes.
  30. MR ROBERTS: I anticipate that your Lordships had granted leave and treated the application as the full hearing.
  31. THE VICE PRESIDENT: Yes. Thank you for reminding me, Mr Roberts. We had such full argument that I omitted to notice it had been referred rather than leave given.
  32. MR ROBERTS: As to the representation order, I of course have appeared and I have been joined by my learned junior.
  33. THE VICE PRESIDENT: Yes. Representation for Queen's Counsel and junior counsel.
  34. MR ROBERTS: I am most obliged.
  35. THE VICE PRESIDENT: Thank you very much.

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