Case No: 2000/0016/Y5
Neutral Citation Number: [2001] EWCA Crim 2712
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL  DIVISION)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 30 November 2001

B e f o r e :

LORD JUSTICE KENNEDY
MR. JUSTICE HUGHES
and
MR. JUSTICE KEITH

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	DARRELL RICHARDS		

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
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Mr  S MORGAN (appeared for the Crown)
Mr P J L LAMBERT (appeared for the Appellant)

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Judgment

Mr  Justice Keith
1.	On 3 June 1994, the Appellant was convicted at Cardiff Crown Court of wounding with intent to cause grievous bodily harm.   On 22 November 1999, he pleaded guilty at Bristol Crown Court before Judge Dyer, the Recorder of Bristol, to a charge of manslaughter.   That later conviction triggered the application of section 2 of the Crime (Sentences) Act 1997 (“the 1997 Act”), which has since been re-enacted in section 109 of the Powers of Criminal Courts (Sentencing) Act 2000.   The Appellant was therefore sentenced to imprisonment for life.   He had earlier pleaded guilty to a charge of supplying heroin, and he was sentenced on that charge to 12 months’ imprisonment, to be served concurrently.   He now appeals against the sentence of life imprisonment with the leave of the full court.   
2.	The facts of the later offences were these.   In February 1999, the Appellant was staying at a Salvation Army hostel in Bristol.   Three other men were staying there on the night in question:  Philip Baglin, Andrew Beacock and Adrian Huddleston.   One of them asked whether there was anyone at the hostel who knew where to get some heroin from.   The Appellant, who was a heroin addict, offered to get some.   He was given some cash and went off to buy some heroin from his source.   Having bought some, he then went to Beacock’s bedroom, where the other three men were.   The Appellant produced the heroin which was in two wraps, together with three syringes, which had been cleaned but which were not new.   Huddleston was not interested in taking any, and the Appellant prepared the heroin for himself, Baglin and Beacock by heating it with a lighter in a spoon.   Baglin was concerned about the quality of the heroin, but the Appellant assured him that it was all right.   The Appellant then prepared the syringes, he gave one each to Baglin and Beacock who injected themselves, and he injected himself with the third syringe.   
3.	The following morning Baglin woke to find Beacock lying dead on the floor.   The cause of his death was subsequently found to be an acute morphine overdose, consistent with a recent injection of heroin.   Baglin went to look for the Appellant.   He found the Appellant in the canteen, and told him that Beacock was dead.   He told the Appellant that the police had been called, and that the Appellant had better stick around and tell the truth.   The Appellant chose to leave the hostel and was arrested a few days later.   When interviewed by the police, he admitted supplying the heroin, providing the syringes and preparing the doses.   He admitted injecting himself but claimed that he had not injected Beacock’s fatal dose.   
4.	Notwithstanding the Appellant’s denial that he had injected the fatal dose, the prosecution’s case was that he had injected the fatal dose.   However, the case of Kennedy [1999] Crim. L.R. 65 had recently been reported.   In Kennedy, it had been held that it was unlawful for a person to inject himself with a controlled drug, it was therefore unlawful to assist or encourage a person to inject himself with a controlled drug, and to prepare a syringe and hand it to a person to inject himself with a controlled drug amounted to assisting or encouraging him to do that.   Thus, if the person who injected himself under those circumstances died, the person who prepared the syringe and handed it to him would be guilty of manslaughter.   Accordingly, the prosecution decided to put the case against the Appellant on the alternative basis that he was guilty of manslaughter, whether or not he had actually injected the fatal dose.   On that basis, the Appellant pleaded guilty, and that was the factual basis on which he was to be sentenced.   
5.	But for the requirement that he had to pass an automatic sentence of life imprisonment, the judge would have sentenced the Appellant to 4 years’ imprisonment for the manslaughter of Beacock.   He took into account the Appellant’s plea of guilty which had been tendered as soon as the prosecution had stated the alternative basis on which it proposed to put the case.   He also treated the amount of heroin which the Appellant had supplied to Beacock as small in the light of what the Appellant had paid for the two wraps.   It appears that the judge also took into account in the Appellant’s favour that the Appellant had had no reason to think that Beacock might have such an adverse reaction to his dosage, because he referred to the fact that the amount which the Appellant had supplied to Beacock “was not much different from” the amount supplied to Baglin or the amount which the Appellant had used himself.   The judge reflected his view that the appropriate determinate sentence would have been 4 years’ imprisonment by specifying, pursuant to section 28(2)(b) of the 1997 Act, that the Appellant’s release from prison should be considered after he had served 15 months’ imprisonment.   He reached that period by deducting the 9 months for which the Appellant had been in custody prior to his trial from the period of 2 years’ imprisonment which he thought that the Appellant should serve before his case was considered by the Parole Board.
6.	Turning to the Appellant’s conviction in 1994 for wounding with intent to cause grievous bodily harm, the facts were that one afternoon in October 1993 the Appellant was driving a car belonging to his girlfriend.   A friend of his, Jonathan Williams, was a passenger in the car.   They were involved in an incident with another car.   Mr Williams thought that the other car had cut in front of them.   Angry words and gestures were exchanged.   But what the Appellant and Mr Williams did not know was that the occupants of the other car were two policemen.   They believed that the Appellant had been driving without reasonable consideration for other road users, and that evening the police visited the Appellant’s home which he shared with his girlfriend, as she was the registered keeper of the car.   
7.	After the police had left, the Appellant and his girlfriend argued over the incident.   Shortly afterwards, Mr Williams arrived, and they argued with each other.   The argument became very heated and ended in a scuffle between them.   The Appellant’s girlfriend told them both to go and Mr Williams then left.   As he was walking home, he became aware of a car coming up behind him, and he felt something hit the back of his legs.   He remembered being tossed over the bonnet, and sitting dazed on the ground with the Appellant screaming at him.   He remembered the Appellant then being restrained by someone else, and himself walking away.   A little later he saw the Appellant again, who was upset about his girlfriend’s stereo having been broken.   Mr Williams felt pain in his thigh, and realised that he had been stabbed, although he had never seen the Appellant with a knife.   The medical evidence shows that Mr Williams had sustained a 5 cm laceration to his thigh, causing no major damage.   The police were alerted and the Appellant was arrested after a short chase.   
8.	It is not possible to tell how the prosecution put its case against the Appellant, but presumably it was alleged that the Appellant had run Mr Williams down and had then stabbed him.   The Appellant pleaded not guilty to both wounding with intent and possessing an offensive weapon, but he was convicted of both charges, and sentenced to 3 years’ imprisonment on the former and to 6 months’ imprisonment on the latter, to be served concurrently with each other.   At the same time, he was dealt with on another indictment, having pleaded guilty to an offence of unlawful wounding, for which he was sentenced to 12 months’ imprisonment, to be served consecutively to the sentences imposed on the first indictment, amounting to 4 years’ imprisonment in all.   We do not know the facts relating to this offence of unlawful wounding at all, save that the offence was committed on 1 January 1994 and involved the stabbing by the Appellant of his cousin.   Although the Appellant has a long list of previous convictions, these are the only convictions for offences of violence which have been recorded against him.   
9.	Section 2 of the 1997 Act provides, so far as is material:  
“(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- .......where the person is 21 or over, a sentence of imprisonment for life,......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.”
Both the offence of manslaughter and the offence of wounding with intent to cause grievous bodily harm contrary to section 18 of the Offences Against the Person Act 1861 are serious offences for the purpose of section 2.   Indeed, the offences which section 2(5) identifies as being serious offences for the purpose of the section were described in Kelly [1999] 2 Cr. App. R. (S). 176 at p.181 as disparate, but the distinguishing features of them are that they are offences of violence, grave sex crimes or offences which facilitate the use of violence, and they are all punishable by a maximum of life imprisonment.
10.	When the conditions in section 2(1) are satisfied, the court is only relieved of its duty to impose a sentence of life imprisonment if the condition in section 2(2) is met.   That condition has been regarded, ever since Kelly, as amounting in reality to two conditions:  first, that the court is of the opinion that there are exceptional circumstances relating to either of the relevant offences or to the offender;  and secondly, that the court is of the opinion that those exceptional circumstances justify the court in not imposing a sentence of life imprisonment.   
11.	The rationale of section 2 was described by the then Lord Chief Justice, Lord Bingham of Cornhill, in Buckland [2001] 1 Cr. App. R. 471 at p.478D as follows:
“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 the 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.”
12.	This passage was considered in Offen [2001] 1 Cr. App. R. 372.   The Lord Chief Justice, Lord Woolf, said at [79]:
“Before leaving Buckland, and turning to the decision in Offen, we should point out that we regard it as a striking feature of the reasoning in Buckland, as in the case of Kelly, that the Court regarded the rationale of the section as being relevant when the Court had already come to its conclusion that there are exceptional circumstances and not as to whether the exceptional circumstances exist.   We would suggest that quite apart from the impact of the Human Rights Act 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.   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 rise to the conclusion that what could be normal and not exceptional in a different context was exceptional in this context.   If this approach is not adopted, then in the case of the serious offences listed in the section, the gravity of which can vary very greatly, the approach to exceptional circumstances could be unduly restrictive.   This is illustrated by the extensive range of situations which can constitute the offence of manslaughter.”
That analysis of the relevance of the threat which the offender poses to the public led Lord Woolf to continue in Offen at [97-98] as follows:
“Section 2 establishes a norm.   The norm is that those who commit two serious offences are a danger or risk to the public.   If in fact, taking into account all the circumstances relating to a particular offender, he does not create an unacceptable risk to the public, he is an exception to this norm.   If the offences are of a different kind, or if there is a long period which elapses between the offences during which the offender has not committed other offences, that may be a very relevant indicator as to the degree of risk to the public that he constitutes.   Construing section 2 in accordance with the duty imposed upon us by section 3 of the 1998 Act, and taking into account the rationale of the section as identified by Lord Bingham gives content to exceptional circumstances.   In our judgment, section 2 will not contravene Convention rights if courts apply the section so that it does not result in offenders being sentenced to life imprisonment when they do not constitute a significant risk to the public.   Whether there is significant risk will depend on the evidence which is before the court.   If the offender is a significant risk, the court can impose a life sentence under section 2 without contravening the Convention.   Either there will be no exceptional circumstances, or despite the exceptional circumstances, the facts will justify imposing a life sentence.
Under section 2 it will be part of the responsibility of judges to assess the risk to the public that offenders constitute.   In many cases the degree of risk that an offender constitutes will be established by his record, with or without the assistance of assessments made in reports which are available to the court.   If a court needs further assistance, they can call for it.   The courts have traditionally had to make a similar assessment when deciding whether a discretionary life sentence should be imposed.   There should be no undue difficulty in making a similar assessment when considering whether the court is required to impose an automatic life sentence, although the task will not be straightforward, because of the lack of information as to the first serious offence which will sometimes exist because of the passage of time.”
That is now the definitive statement of the law in this field.   Since Offen, it has been said that if the statutory presumption is to be displaced, the burden of doing so is on the appellant (see Kelly [2001] EWCA Crim 1751).   And to the extent that there is a need to assess such risk as was described in Buckland as “a serious and continuing danger to the safety of the public”, the question which has to be answered is whether the offender still presents “a significant risk to the public” (see the use of that phrase in Offen at [97] and [100]).
13.	This case being dealt with before the decision in Offen, it was not suggested to the judge that there had been exceptional circumstances relating either to the offences which the Appellant had committed or to the Appellant himself.   In those circumstances, it is not surprising that the judge did not assess the extent to which the Appellant posed a threat to the public.   It is therefore necessary for this court to determine whether exceptional circumstances exist, and if so whether they are such as to justify not imposing the automatic sentence of life imprisonment. 
14.	As the court noted in Offen (at [79]), the range of situations which can constitute the offence of manslaughter is “extensive”.   In the present case, there was no violence in the conventional sense on the part of the Appellant at all.   Without wishing to minimise in any way the gravity of the Appellant’s conduct, what he did was unlawfully to assist a willing participant to take a risk with his, and only his, own safety.   Given the distinguishing features of the classes of the offences to which section 2 relates, the circumstances of this offence of manslaughter were exceptional in the sense that they were far removed from the conventional offence of manslaughter.
15.	We turn, then, to whether these exceptional circumstances justify not imposing the automatic sentence of life imprisonment.   It is here that we must assess the extent to which the Appellant presents a significant risk to the public, and in that context the recent report on the Appellant gives rise to real concern.   The Appellant is now 33.   The report reveals that he has a history of drug abuse which began at the age of 13 with his use of cannabis.   He progressed to amphetamines at the age of 17 and to heroin at the age of 21.   The majority of his previous convictions, like his occasional supply of drugs, were committed to finance his addiction.   Indeed, following his release from prison after serving the sentences imposed in 1994, he failed to address his drug problem and continued to commit offences.   A probation order for 2 years which had been made in July 1998 had had to be revoked.   
16.	During his current spell in prison, the Appellant has completed a number of courses on drug awareness as well as a course on controlling anger, but he is still regarded as having difficulty in making the link between thought and behaviour, and he is said to have little understanding of or consideration for others.   An enhanced thinking skills course may give him that insight, but that course has not yet been available for him.   The real problem, though, is that he has not been tested in the community to see if he can remain drug-free, and the report says that until he can achieve that, his risk of re-offending will remain high and the protection of the public cannot be guaranteed.   
17.	Does that mean that he still presents a significant risk to the public for the purposes of determining whether the court has been relieved of its obligation to impose a sentence of life imprisonment?   The word “significant” relates to the degree of the risk, not the gravity of the offences to which the risk relates.   We think that the risk to the public which the court in Offen had in mind was the risk of the offender committing offences of some gravity in the future.   These offences need not, of course, be offences of the kind identified in section 2(5) as serious for the purpose of section 2, nor even offences of violence.   That is because section 2(5) merely identified what offences are serious for the purpose of determining whether section 2(1) applies so as to trigger the application of section 2, and it has no part to play in the determination of whether there are exceptional circumstances which justify the non-imposition of a sentence of life imprisonment within the meaning of section 2(2).   Thus, to take a couple of examples, we do not think that a person whose offences of violence triggered the application of section 2 could be regarded as presenting a serious risk to the public if the risk was, not that he would commit crimes of violence, but that he would, say, be a persistent shoplifter.   By the same token, a person whose offences of violence triggered the application of section 2 would present a significant risk to the public if the risk was that he would take part, say, in a conspiracy to import hard drugs into the U.K.
18.	It cannot be denied that until the Appellant has demonstrated that he can remain drug-free in the community, he will continue to present a significant risk of committing offences to fund his addiction.   We note that, as a result of his early relapse into drug-taking following his release from prison in early 1997, he committed many offences in the 2 years up to his arrest for the current offences.   The offences which he committed were moderately serious - they included one residential burglary, two non-residential burglaries, a number of other offences of dishonesty and of course supplying heroin - and the risk which he would pose if he returns to drug-taking is that he would continue to commit offences of that kind.   Since his return to drug-taking cannot at present be eliminated (because he has not yet been put to the test in the community), the real possibility that he will commit offences of that kind cannot be excluded either.   These are offences of sufficient gravity to come within the class of offences which the court in Offen must have had in mind when referring to an offender presenting a significant risk to the public.   For these reasons, we cannot say that the Appellant does not at the moment present a significant risk to the public.
19.	We note that the Appellant has been assessed as suitable for admission to a particular probation hostel, which is staffed 24 hours a day and 7 days a week, which has monitoring facilities to ensure that its occupants remain drug-free and which has links with a local drugs project which assists former addicts not to relapse into drug-taking.   It may therefore be that the time will shortly come when the Parole Board thinks that the Appellant can be released on licence into the community to see whether he can remain drug-free, especially if it is a condition of his licence that he lives at a probation hostel of that kind.   That may well be an acceptable risk for the Parole Board to take, but since the Appellant will only cease to be a significant risk to the public if he remains drug-free, we cannot say that he does not now present a significant risk to the public.
20.	It follows that, even though the circumstances of the trigger offence were exceptional, the Appellant has failed to displace the assumption on which section 2 of the 1997 Act is based, namely that he presents a significant risk to the public, and his appeal must therefore be dismissed.