No. 2002/06275/A4

Neutral Citation Number: [2003] EWCA Crim 3251
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Friday  31  October  2003

B e f o r e:

LORD  JUSTICE  POTTER

MR  JUSTICE  CRESSWELL

and

MR  JUSTICE  JACK

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R E G I N A

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MARK  SAMUEL  JACKSON

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Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4
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MR J S BAIRD appeared on behalf of THE APPELLANT
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J U D G M E N T
Friday 31 October 2003
LORD JUSTICE POTTER: 
1.	This is an appeal against sentence by Mark Samuel Jackson which comes before us upon a reference by the Criminal Cases Review Commission (“the Commission”) under section 9 of the Criminal Appeal Act 1995.
2.	On 8 June 2000, in the Crown Court at Manchester before His Honour Judge Owen and a jury, the appellant was convicted of causing grievous bodily harm with intent to a Mr Roberts. The circumstances were that the appellant, following an argument, had struck Mr Roberts about the head with a hammer causing fractures to his cheek and jaw bone and concussion. Included in the appellant's criminal record were convictions on 21 November 1994 for attempted robbery and carrying a firearm with intent to commit an indictable offence contrary to section 18 of the Firearms Act 1968, in respect of which he had been sentenced to seven years' and four years' detention respectively in a young offender institution, such sentences to run concurrently. The firearms offence was a “serious offence” for the purposes of section 2 of the Crime Sentences Act 1997 (now section 109 of the Powers of Criminal Courts (Sentencing) Act 2000), as was the offence of inflicting grievous bodily harm with intent. Accordingly the appellant was subject to the provision of section 2(2) which required the court to impose upon him a sentence of imprisonment for life unless the court was of the opinion
“.... that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so.”
3.	The brief facts of the offence were that on 27 March 1999 Mr Roberts and two other men, who had attended a function at the Lancashire County Cricket Club, having had, as Mr Roberts accepted, too much to drink, were walking in the road when the appellant's car passed them and its wing mirror hit Mr Roberts' coat. This caused the appellant to stop and accuse the men of having deliberately hit at or banged his car. An argument ensued, during the course of which the appellant went back to his car and picked up a hammer from the passenger side. He then went up to Mr Roberts and struck him on the head with the hammer, causing him serious injury as already mentioned. The appellant left the scene after the attack. However, the registration number of his car had been noted and was passed to the police. The appellant was arrested within two hours of the attack. The defence case at trial was that no such incident had happened; that there must have been a mistake by whoever noted the registration number of the car. However, the wealth of circumstantial evidence led to the appellant's conviction.
4.	The appellant was sentenced immediately. The judge did not have access to a pre-sentence report. Addressing the judge in mitigation, defence counsel conceded that the judge was not at liberty to pass a determinate sentence in the following exchange:
“JUDGE: Yes, and I have no option but to pass a life sentence?
COUNSEL: Well, you have an option if there are exceptional circumstances.
JUDGE: There are not.
COUNSEL: I regret to say that I cannot with any degree of ingenuity think of anything that would come within that.
JUDGE: If I have spoken a little too quickly, then of course if you wish to advance anything, you are at liberty to do so.
COUNSEL: No, you have not cut me short. I have considered the matter, and there is nothing I can properly bring to your attention.”
5.	In passing sentence the judge stated to the appellant:
“You then returned to the man whose face and head area you struck with a hammer. I appreciate that all that may not have taken very long, but it takes it out of the category of those who happen to have a weapon in their hand and almost instinctively use it, such as for example, as occurs all too frequently, the man in the public house who has a glass in his hand. You deliberately went to get a weapon and then you deliberately used it and drove off, leaving this man with a fractured jaw and a fractured cheek bone, lying on the ground and requiring immediately hospital attention. Fortunately, it seems that those fractures have resolved, although all that took some time, but it does appear from the medical evidence that some psychological symptoms persisted for some time and may not even now have been resolved.”
	The judge then noted that because of the appellant's previous record there was only one sentence which he could pass, namely life imprisonment. He went on to say that, in the light of the absence of mitigation or any guilty plea, had he passed a determinate sentence it would have been one of six years' imprisonment, and he fixed the period which must be served before any question of the appellant's release could be considered at four years.
6.	At the time of sentence the appellant was in breach of his early release licence, which still had some two years to run. The judge ordered that the appellant serve twelve months in respect of that breach and that his life sentence should be served consecutively to that period. That was an error in sentencing practice and is something which should not have occurred. However, in the light of our decision upon this appeal, that question falls by the wayside.
7.	The appellant was sentenced before the decision of this court in R v Offen and Others [2001] 2 Cr App R(S) 44, in which Lord Woolf CJ clarified the proper interpretation of “exceptional circumstances” in section 2 of the 1997 Act, and stated that the approach so far adopted to that interpretation had been unduly restrictive. He stated at page 63:
“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 on us by section 3 of the 1998 Act and taking into account the rationale of the section as identified by Lord Bingham CJ [in R v Buckland [2000] 2 Cr App R(S) 217] 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 a 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 that are available to the court. If a court needs further assistance, they can call for it.”
8.	The reference by the Commission in this case is made on the basis that, since it was not clear until Offen that the approach generally adopted to the construction of “exceptional circumstances” did not properly reflect the policy of Parliament in passing section 2 of the 1997 Act, the appellant now has available to him an argument on a point of law not raised in the proceedings before the judge, which raises a real possibility that the sentence would not be upheld on reference to this court (see section 13(1)(a) and (b) of the Criminal Appeal Act 1995) because the issue whether the risk to the public in respect of the appellant was significant and such as to justify the imposition of a life sentence was never addressed by the judge.
9.	On the basis of the Commission's Statement of Reasons dated 28 October 2002, the Grounds of Appeal drafted by counsel for the appellant are in substance as follows:
“1.The judge failed to consider whether there were exceptional circumstances relating either to the offence or to the appellant which would have justified him not imposing a life sentence.
2.In coming to the conclusion that he had no alternative but to impose a life sentence the judge failed to consider whether the appellant represented a serious risk to the public.
3.Since in the case of Offen the court's approach to the construction of the phrase “exceptional circumstances” has been to give it a much wider meaning, to accord with the policy of Parliament, the appellant now has available to him an argument on a point of law which has not previously been raised.
4.In considering whether the appellant represents a “significant” or unacceptable risk the following factors can now be considered in his favour:
(a)The appellant is not suffering from any psychiatric or other mental disorder which might have a bearing on the sentence.
(b)Prison reports indicate that he has behaved well in prison.
(c)The appellant's previous convictions are largely for theft and motoring offences.
(d)The two relevant offences are different in nature.
(e)The appellant committed both offences when relatively young. Recent reports show that he is maturing and acting responsibly.
5.In imposing a life sentence it was wrong in principle for the judge to impose a consecutive sentence of twelve months for breach of licence.
6. In any event, having indicated that the appropriate determinate sentence would have been on six years' imprisonment, the judge erred in fixing the minimum period before release at a period of four years. It is submitted that the appropriate tariff was three years, ie half the period of the determinate sentence rather than four years (two-thirds of that period), particularly in view of the fact that the effect of the sentence for breach of licence was to increase the period of four years to one of five years to be served as a minimum period before the appellant's release could be considered.”
10.	In the light of the course we propose to take as a result of acceding to the submissions of counsel in relation to his principal point on this appeal, the grounds numbered 5 and 6, which we have just read out, do not require further consideration.
11.	Counsel has elaborated upon the points contained in paragraph 4 of the Grounds of Appeal in his submissions to us. He relies upon a number of prison reports which have come into existence since the appellant started to serve his sentence. In particular he relies upon a psychiatric report dated 31 March 2003 prepared by Dr Wood, a Consultant Forensic Psychiatrist, who has seen the appellant while in prison. That report was obtained at the request of this court at the time the appeal came into the office. 
12.	There is an immediate problem so far as those reports are concerned because it is apparent from R v Watkins [2002] Crim LR 594 that on an appeal in relation to “exceptional circumstances” the issue is whether the offender created an unacceptable risk to the public at the time when he was sentenced and not at the time when the Court of Appeal is considering the matter. We are in no position to say what the judge would have done, or what he would have decided, had the decision in Offen been available to him at the time when he passed sentence. It may be surmised that, having regard to the court's approach as therein pronounced, he would have requested a psychiatric or other risk assessment in respect of the appellant, although it is possible that he would have drawn the conclusion, simply from the nature of the offences themselves, that this appellant presented an unacceptable risk to the public and consequently the judge would have made the same order. 
13.	As was made clear in Watkins at page 595:
“Two important issues have been established by the Court of appeal following Offen. The first was that the question to be considered, that is whether the offender created an unacceptable risk to the public, had to be considered as at the time when he was sentenced, not at the time the Court of Appeal was considering the matter.”
	However, the report goes on to say:
“It was fair to say that in many of the cases evidence had been before the court from psychiatrists and others dealing with the history since sentence was imposed and the Court of Appeal had been prepared to apply that evidence back and not to insist that the evidence be itself contemporaneous. In essence the point remained that the question of unacceptable risk must be considered as at the time when the sentence was passed.”
14.	We are inclined to follow that approach on the basis that we must do the best we can to deal with the case justly when seeking to decide the likelihood of the assessment of risk so far as the appellant was concerned as at the time when he was sentenced. 
15.	Two months after the passing of sentence a risk assessment was carried out by a probation officer who saw the appellant in prison. The probation officer observed that, given the previous offence and the current offence, the level of risk of harm must be high. However, it is plain that that assessment was made simply upon his view of the nature of the offences. He went on to say: 
“.... there is sufficient level of evidential doubt about the index offence, and the previous offence was allegedly committed under compulsion. Mark Jackson has been able to demonstrate that he can live a stable and non-violent life and achieve in employment areas where social skills and intelligence are required for the level of achievement he has attained. A risk assessment has therefore to be kept under review in the light of further information.”
	No risk assessment by somebody psychiatrically qualified was carried out until the report of Dr Wood, to which we have already referred in paragraph 11 above. Nevertheless, a series of prison reports relating to the behaviour of the appellant demonstrate that he settled down well; that he has displayed no violent or anti-social tendencies; and that he made progress in reconciling himself to his position, in controlling any tendencies to anger or violence, and in addressing himself to the future.
16.	We propose to treat that series of reports, culminating in the psychiatric report of Dr Wood, as evidence of conduct which sheds light on the assessment which would have been made at the time when sentence was passed, had the judge called for such qualified assessment. It is not necessary to set out in full the report of Dr Wood. He first makes the qualification that he is not in a position retrospectively to assess the risk presented at the time before the judge. He observes that at the time of sentencing the risk was not articulated or quantified. However, he concludes:
“As a result of a combination of maturation, positive co-operation with efforts to address and modify his behaviour, and a degree of strength of purpose, Mr Jackson has now arrived at a position where I can conclude that he does not represent a serious risk to the public. It will be seen that I am not able to state whether that risk was previously serious, though clearly it was previously higher than is now the case. Even at the time, a number of factors which one might suppose to be associated with serious risk of harm, such as alcohol and drug abuse and mental instability, were not present to any significant extent in Mr Jackson's case, and the principle destabilising factor at that time appears to have been his response to peer pressure. Whether that response of itself marked him out as being at serious risk to the public is something which I doubt, though as the Court will recognise that is a matter of speculation on my part rather than hard evidence. The hard evidence which is currently before me indicates that he is not now an individual who poses a serious risk.”
17.	It is plain that grounds 1, 2 and 3 of the Grounds of Appeal are made out. The judge gave no consideration to the question of future risk in the light of the approach hitherto adopted by the court. For the reasons we have stated, we consider that there is good evidence before us indicative of a likely assessment at the time, had it been sought, that the appellant did not present a serious, or indeed substantial, risk to the public upon release. 
18.	In those circumstances we consider it right to quash the sentence of life imprisonment imposed upon the appellant and to substitute a sentence of six years' imprisonment in respect of the grievous bodily harm offence, whilst leaving intact the order of the judge that the appellant serve a sentence of twelve months for breach of licence, the sentences to run consecutively. Thus total period of imprisonment, as from the date of the original passing of sentence, is one of seven years. To that extent this appeal is allowed.