No: 2007/4895/A5 
Neutral Citation Number: [2007] EWCA Crim 3021
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Thursday, 29 November 2007
 
B e f o r e:
 
LORD JUSTICE HUGHES 
MR JUSTICE FIELD 
 
HIS HONOUR JUDGE RICHARD BROWN DL 
(Sitting as a Judge of the CACD)  
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R E G I N A 

v 

MARK STEPHENS
 
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Mr P Hall appeared on behalf of the Appellant
Mr S Christie appeared on behalf of the Crown
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J U D G M E N T
1.	LORD JUSTICE HUGHES:  This is an appeal against a sentence of life imprisonment imposed for an offence of conspiracy to commit arson.  The Registrar referred the case.  We give leave.
2.	The appellant was born on 2nd November 1984.  He was not quite 22 at the time of the offence which was on 9th October 2006.  About a month previously he had parted from his girlfriend.  She continued to live in the mid‑terraced house which had been her home for some time.  She lived there, as he very well knew, with her 3‑year‑old child by an earlier relationship.  There was bitterness associated with the separation, at least as far as this appellant was concerned.  Now living at a hostel, he got drunk and in that state he encouraged a friend to go and burn the ex‑girlfriend's door down.  He said his intention was to frighten her.  The friend did so.  A full can of petrol was used, squirted through the letterbox of the house and accompanied by paper to set it on fire.  A very serious fire ensued.  It undoubtedly put the lives of both the lady occupant and her young child at risk, if not, as may very well have been the case, also those of the occupiers of adjoining terraced houses.  It can only have been absolutely terrifying for the lady and her child.  It happened at half past nine at night.
3.	It would appear that there was no evidence that the appellant was present but he had encouraged what had happened.  As a matter of history, in the end for reasons of evidence which were perfectly proper and which do not concern us, it proved impossible to proceed against the man who carried out the defendant's wishes.  When this appellant was arrested he admitted asking his friend to burn the door.  Despite that admission, he contested the trial not only up until the door of the court, but up until the time when his girlfriend had had to come and give evidence.  
4.	In addition, while he was on remand pending trial the appellant made a series of attempts to contact the target of the offence, his ex‑girlfriend.  She was of course the principal Crown witness in the case against him.  From prison he telephoned her a great many times.  Most of the calls fortunately did not get through.  Eventually she happened to pick up the telephone when he called.  He told her that he was not going to go down for what had happened and that he had an alibi.  She felt that he was laughing at her.  It is right to say that the content of the call was not avowedly threatening, but the repetitive nature of the calls did make clear that what was going on was an attempt to intimidate the witness.  The defendant was charged separately with witness intimidation, intending to obstruct the course of justice.  He contested that case, this time to the end, but was convicted.  
5.	The appellant had a previous conviction for harassing a different ex‑partner in 2003.  There was also a conviction for assaulting a police officer and for an offence of a quite different nature.  He had not previously been sent to custody.  The disposals in his previous cases had been a fine and two conditional discharges, which no doubt indicates the general level of gravity of those offences.  
6.	The judge passed a life sentence for conspiracy to arson and a sentence of 18 months concurrent for the witness intimidation offence.  Although the judge passed a life sentence, he did not fix any minimum term for the appellant to serve before consideration could be given to any question, if he was safe for release, to release on parole.  We have to say that a life sentence on the facts of this case, serious as it was, was wrong in principle.  Moreover, the discussions between counsel for the Crown and the judge on the approach to sentence reveal a number of quite important misunderstandings of the law.  
7.	Assuming that the offence is both specified for the purposes of the Criminal Justice Act, schedule 15, and serious, that is to say carries a sentence of 10 years or more, which conspiracy to commit arson does, the approach to sentencing is as follows: 
1.  The first question is "Is the defendant dangerous for the purposes of the Criminal Justice Act 2003?"  That is a two stage test:  Is there a significant risk of further specified offences and, if so, is there a significant risk that serious harm to the public will thereby be caused, serious harm being defined as death or serious personal injury, physical or psychological.  
2.  If the answer to that is "Yes", then the sentence has to be a sentence of imprisonment for public protection.  If the instant offence is one which carries a maximum sentence of life imprisonment, then a sentence of life imprisonment is also open to the judge.  
3.  A life sentence, however, will only be appropriate if the case is one of those very limited number of cases in which a discretionary life sentence would have been passed before the enactment of the Criminal Justice Act 2003.  The most convenient expression of the test is to be found in R v Chapman [2000] 1 Cr.App.R 77 at 85C in the judgment of Lord Bingham, CJ.  In short, a life sentence is appropriate if, but only if, the instant offence is of such gravity as to call for a very long sentence and, additionally, where it appears from the nature of the offences or from the defendant's history that he is a person of unstable character likely to commit such offences in the future and where the consequences if he does are likely to be specially injurious.  As to the first of those conditions, Lord Bingham said this:
"It is in our judgment plain, as the Court has on occasion acknowledged, that there is an interrelationship between the gravity of the offence before the Court, the likelihood of further offending, and the gravity of further offending should such occur ... There is, however, in our judgment no ground for doubting the indispensability of the first condition laid down for imposition of an indeterminate life sentence in Hodgson, reaffirmed, as we say, in the more recent Attorney‑General's Reference No 32 of 1996 (Whittaker).  It moreover seems to this Court to be wrong in principle to water down that condition since a sentence of life imprisonment is now the most severe sentence that the Court can impose, and it is not in our judgment one which should ever be imposed unless the circumstances are such as to call for a severe sentence based on the offence which the offender has committed."  
In R v Lang [2006] 2 Cr.App.R (S) 3 at page 13, this court expressly affirmed, post the Criminal Justice Act 2003, that that test for the imposition of a life sentence stands ‑ see the judgment of the Vice President, Rose LJ, at paragraph 8.  That approach has been consistently applied since.  Both the current and previous editions of Archbold correctly make that clear at paragraph 5‑304.  The references there to the cases of Shaffi, B (Samuel), Folkes and Costello are but examples of the consistent approach of this court to the question of the imposition of a discretionary life sentence.  In the last of those cases, Costello, Keene LJ giving the judgment of the court underlined at paragraph 19 the point that particularly since the enactment of the dangerousness provisions of the Criminal Justice Act 2003 and the availability of a sentence of imprisonment for public protection, there need be no temptation to impose a life sentence because of concern as to risk for the future.  That is amply catered for by the imposition of a sentence of imprisonment for public protection.  
4.  If the case is within the very limited category of ones which call for a discretionary life sentence, the judge is obliged to fix a minimum term.  The obligation is contained in section 82A of the Powers of Criminal Courts (Sentencing) Act 2000.  It is set out in Archbold at paragraph 5‑310.  The only exception is the case in which the judge is satisfied that there are grounds for imposing a whole life term.  Lest there be any doubt about it, that means the case of the offender of whom the judge is convinced that he must remain in prison for the rest of his natural life, however long it may be, as a punishment for what he has done and because it is plain that it will never be possible to conclude that he is safe for release. It need hardly be said that that is wholly exceptional.  There are some serial or multiple murderers and similar offenders of whom it cannot be avoided to be said but it is a very limited category indeed. 
5.  The judge must also fix a minimum term if he passes a sentence of imprisonment for public protection ‑ see section 82A(7).  
6.  The minimum term must in either case be fixed by reference to what would have been the appropriate tariff determinate sentence if a sentence of life or imprisonment for public protection, as the case may be, were not being imposed.  That term is often referred to as the "notional determinate term".  Having arrived at that, the judge is obliged by statute to halve it and deduct time in custody before arriving at the "minimum term" which is the period that the defendant must serve before the parole board can look at his case.  
7.  If the judge is passing a sentence of imprisonment for public protection and he also has to sentence for an offence which is not specified for the purposes of the dangerousness provisions of the Criminal Justice Act, as in this case witness intimidation is not, then the proper course is explained in R v O'Brien [2007] 1 Cr.App.R (S) 75.  In short, it is to pass a single sentence of imprisonment for public protection but to take into account in arriving at the notional determinate term the facts of the non‑specified offence also; if a consecutive sentence for that would have been imposed, if determinate terms were being passed, then that can be reflected in the notional determinate term.  
8.	We absolutely understand that these are complex and difficult provisions, but the Criminal Justice Act has now been in force for two‑and‑a‑half years and they ought by now to be generally known.  
9.	In the present case the judge first dealt with the case without any psychiatric report.  It is our combined experience that it is very unusual to pass sentence in an arson case without a psychiatric report, certainly one should never contemplate a life sentence without one.  
10.	Secondly, we are satisfied that there was a proper basis for the judge to find that the defendant met the dangerousness provisions of the Criminal Justice Act.  There had been previous harassment of a different ex‑partner and there was now a deliberate revenge attack in similar circumstances through the use of the exceptionally dangerous method of fire to a house.  We have been invited, tactfully, by Mr Hall to consider whether there is any basis for disturbing the judge's finding of dangerousness, but we are quite satisfied that there is not.  
11.	We are equally satisfied that the case does not begin to satisfy the Chapman criteria for a life sentence.  This case would not have attracted a life sentence before the 2003 Act and it does not now.  Serious as it is, it is adequately catered for by a sentence of imprisonment for public protection.  The judge, with respect to him, was quite wrong to approach the case, as he did at page 10A of the discussion, on the basis that the choice between a life sentence on the one hand and a sentence of imprisonment for public protection on the other should depend upon the ability or inability to predict when the defendant was no longer likely to pose a risk.  The question of assessment of risk in the future is one for the parole board from time to time.  That is true in the case of both a life sentence and a sentence of imprisonment for public protection.  The difference between the two these days is principally in the gravity of the instant offence.  
12.	Since he failed to impose a minimum term, which he should have done, the effect of the judge's sentence, as things presently stand, is to impose a whole life term.  That, we have no doubt, was inadvertent but we say for the sake of completeness that it is plainly erroneous.  The judge had to fix a minimum term for the reasons which we have already explained.  Counsel for the Crown was wrong at page 11C to tell the judge that he was not compelled to do it.  
13.	We accordingly must address what the appropriate notional determinate term would have been if the judge had been passing a determinate sentence.  This was a revenge attack be fire with accelerant on a private house in a terrace at night.  It was highly dangerous.  It created an enormous risk to the occupants, although happily in the end no one was hurt.  On the other hand, it was charged properly as arson being reckless as to whether life would be endangered rather than with intent to endanger life, and the distinction between those two categories of arson needs to be maintained in sentencing.  
14.	After trial for this offence the range of sentences seems to us to be likely to have fallen somewhere between seven and 10 years.  The defendant pleaded guilty but very late indeed part way through the trial, as we have explained, and the adjustment in sentence for that kind of plea is small.  The witness intimidation should properly have called for a consecutive sentence, if determinate terms had been being passed.  It was not witness intimidation of the most serious kind.  The judge thought that it merited a sentence of 18 months or thereabouts.  Had he been passing determinate terms, he would have been required to have regard to the totality of sentence which was being imposed.  We likewise do so.  We fix the notional determinate term at nine years.  Accordingly, the minimum term will be half that, four‑and‑a‑half years, less however the 323 days spent in custody on remand.  
15.	The appeal is allowed.  The life sentence is set aside.  We substitute a single sentence of imprisonment for public protection with a minimum term of four‑and‑a‑half years, less 323 days.