Sentencing Dangerous Offenders

• Introduction
• Approach
• The assessment of dangerousness
• Role of the Prosecutor

Introduction

The court has available to it powers to impose an extended sentence or a life sentence pursuant to the “dangerous offender” provisions of Part 10, Chapter 6 of the Sentencing Act 2020 [‘SA 2020’] (which applies to all convictions on or after 1st December 2020). All references in this guidance are to the Sentencing Act 2020 unless otherwise provided. This legal guidance sets out the principles governing this sentencing exercise so that the prosecution can, where appropriate, assist the court.

Approach

The following is proposed:

These provisions are engaged when:

•  a defendant is convicted of a “specified offence”
• the defendant is deemed “dangerous”
• a sentence of imprisonment for life is not available or justified; and
• the offender has a previous conviction for an offence listed in Schedule 14 SA 2020, or the current offence justifies an appropriate custodial term of at least four years
• section 306 SA 2020 provides that a “specified offence” is a violent, sexual or terrorism offence listed in Schedule 18 SA 2020. This includes a wide range of indictable offences which fall within these three categories. Part 1 of Schedule 18 SA 2020 lists violent offences, Part 2 sexual and Part 3 terrorist. See also Schedule 17A SA 2020 for serious terrorism offences.
• section 308 SA 2020 provides that a Court must assess whether there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences under.
  1. section 255, 267 or 280 SA 2020 (extended sentence for certain violent, sexual or terrorism offences)
  2. section 268B or 282B SA 2020 (serious terrorism sentence);
  3. section 258, 274 or 285 SA 2020 (required life sentence for Schedule 19 offence).
• The SA 2020 contains separate ‘dangerous offender’ provisions for youths aged 12-17 (section 254-257), adults aged 18-20 (section 266-268) and adults aged 21 and over (section 279-282).

The assessment of dangerousness should consider:

• The seriousness of the offence itself, on its own or with other offences associated with it
• The defendant’s previous convictions
• The level of danger to the public posed by the defendant and whether there is a reliable estimate of the length of time they will remain a danger; and
• The available alternative sentences.

If however;

• This assessment has concluded that the offence does not merit a life sentence or detention for life, or
• The defendant is not dangerous, or
• The offence does not carry a life sentence

then the court should proceed to consider section 273 SA 2020 or section 283 SA 2020 (life sentence for a second listed offence for adults aged 18-20, and 21 or over respectively). Section 273 and section 283 SA 2020 apply if the offence is listed in Part 1 of Schedule 15 SA 2020 and the defendant has previously been sentenced to imprisonment for at least 10 years for a previous offence also listed in Part 1 of Schedule 15 SA 2020. If so, the defendant is liable to life imprisonment, subject to the terms of section 273 and section 283 SA 2020.

If either:

• Section 273 or section 283 SA 2020 applies but life imprisonment would be unjust in all the circumstances, or
• Section 273 or section 283 SA 2020 does not apply

then the court should proceed to consider an extended sentence if the offender is deemed dangerous, or a determinate sentence if not.

The extended sentence consists of a custodial term which reflects the seriousness of the offending followed by an extended licence period which is determined on the basis of what the court considers “necessary for the purpose of protecting members of the public from serious harm.” This period is limited to up to 5 years for a violent offence, and 8 years for a sexual offence, and the total period must not exceed the maximum penalty for the offence.

As to concurrent and consecutive sentence, in C and others [2007] EWCA Crim 680 the court offered this guidance:

• There is nothing unlawful about the imposition of a concurrent or consecutive sentence within the ‘dangerous offender’ provisions. (Note, however, that section 225 SA 2020 prohibits the imposition of a consecutive sentence for an offence in circumstances where a defendant who is already serving an existing custodial sentence has, at some point, been released but later returned to custody in respect of that existing sentence).
• Nonetheless, judges should try to avoid consecutive sentences if that is at all possible, and adjust the custodial term or minimum period within concurrent sentences to reflect the overall criminality if that is possible within other sentencing constraints.
• If consecutive sentences are considered appropriate or necessary, if one or more of those sentences are determinate sentences, the determinate sentences should be imposed first, and the extended sentence or sentences expressed to be consecutive.
• In shaping the overall sentence, judges should remember that there is no obligation for the sentences to be expressed in historical date order. There is nothing wrong with stating that the sentence for the first offence in point of time should be served consecutively to a sentence or sentences imposed for any later offence or offences.

The assessment of dangerousness

• Section 308 SA 2020 provides that the court must take into account all such information as is available to it about the nature and circumstances of the offence,
• may take into account all such information as is available to it about the nature and circumstances of any other offences of which the offender has been convicted by a court anywhere in the world,
• may take into account any information which is before it about any pattern of behaviour of which any of the offences mentioned in the preceding paragraphs forms part, and
• may take into account any information about the offender which is before it.

The following authorities may assist in illuminating the statutory test of dangerousness:

• Lang and others [2005] EWCA Crim 2864:
  • The risk must be significant i.e. noteworthy, of considerable amount or importance.
  • The sentence should take into account the nature and circumstances of the current offence; the offender's history of offending including not just the kind of offence but its circumstances and the sentence passed, details of which the prosecution must have available, and, whether the offending demonstrates any pattern; social and economic factors in relation to the offender including accommodation, employability, education, associates, relationships and drug or alcohol abuse; and the offender's thinking, attitude towards offending and supervision and emotional state.
  • Information in relation to these matters will most readily, though not exclusively, come from antecedents and pre-sentence probation and medical reports. The sentencer will be guided, but not bound by, the assessment of risk in such reports. A sentencer who contemplates differing from the assessment in such a report should give both counsel the opportunity of addressing the point.
  • Sentencers should guard against assuming there is a significant risk of serious harm merely because the foreseen specified offence is serious. The cases where the foreseen specified offences are not serious, where there is nonetheless a significant risk of serious harm, will be comparatively few.
  • In relation to a particularly young offender, an indeterminate sentence may be inappropriate even where a serious offence has been committed and there is a significant risk of serious harm from further offences (see for example, R v D [2005] EWCA Crim 2282).
  • Sentencers should give reasons for their conclusions, explaining how they arrived at them.
  • "Members of the public" is an all-embracing term, wider than "others", which would exclude the offender but may include any particular group, for example prison officers or staff at mental hospitals, all of whom, like the offender, are members of the public. In some cases, particular members of the public may be more at risk than members of the public generally, whether a class of persons (young girls) or a particular individual.
• Pedley and others [2009] EWCA Crim 840:
  • It is wholly unhelpful to attempt to re-define 'significant risk' in terms of numerical probability, whether as 'more probable than not' or by any other percentage of likelihood or numerical evaluation. “Significant” is a flexible term.
• Johnson [2006] EWCA Crim 2486:
  • Just as the absence of previous convictions does not preclude a finding of dangerousness, the existence of previous convictions for specified offences does not compel such a finding.
  • Offences which are not specified may also be considered.
  • It does not automatically follow from the absence of actual harm caused by the offender to date, that the risk that he will cause serious harm in the future is negligible.
  • The inadequacy, suggestibility, or vulnerability of the offender, and how these and similar characteristics may bear on dangerousness, but that may be in mitigation of their culpability or it may reinforce the conclusion that they are dangerous.
• R v Considine; R v Davis [2007] EWCA Crim 1166:
  • The crucial word in the assessment of dangerousness is "information", which is neither restricted to "evidence", nor limited to the offender's previous convictions or a pattern of behaviour established by them. However, it is inappropriate to embark on a Newton hearing to decide whether the defendant had committed a discrete, but similar, offence to the one before the court, solely for the purpose of making an assessment of dangerousness.
• R v  Lavery [2008] EWCA Crim 2499:
  • This includes offences taken into consideration.

Role of the prosecutor

The prosecutor should ensure that:

• Pleas are accepted which permit the court to consider dangerousness where that is required for the court to have adequate powers of sentence.
• The court considers dangerousness following the defendant’s conviction of a specified offence. Note separately the guidance on venue in the Youth Offenders legal guidance.
• The court is addressed about relevant previous convictions, particularly those which are specified or serious offences.
• The court is provided with information about the facts and circumstances of the most recent relevant previous convictions.
• The court is addressed about any other relevant information about the offender, including any pattern of behaviour.
• The prosecution should be in a position to describe the facts of previous specified offences. This is plainly desirable, but this is not always practicable. There is no reason why the prosecution's failure to comply with this good practice, even when it can and should, should either make an adjournment obligatory, or indeed preclude the imposition of the sentence, when appropriate. In any such case, counsel for the defendant should be in a position to explain the circumstances, on the basis of his instructions. If the Crown is not in a position to challenge those instructions, then the court may proceed on the information it has. Equally, there are some situations in which the sentence imposed by the court dealing with earlier specified offences may enable the sentencer to draw inferences about its seriousness, or otherwise. In short, failure to comply with best practice on this point should be discouraged, but it does not normally preclude the imposition of the sentence”: Johnson [2006] EWCA Crim 2486:
• Dangerous offenders are committed to the Crown Court for sentence from the magistrates’ court or youth court where appropriate: section 15 (adults) and section 17 (youths) SA 2020 respectively .
• Where a defendant is charged with a specified offence to which the dangerous offender provisions may apply, the judge should be very cautious about giving a sentence indication in accordance with Goodyear [2005] EWCA Crim 888, but if such an indication is given the prosecutor should ensure that the following is clear:
  • The offence(s) is a specified offence, engaging Chapter 5
  • Further information and material is needed to assess dangerousness
  • If the offender is later assessed as dangerous, a life or extended sentence may be imposed
  • If the offender is later assessed as not dangerous, the indication relates to the way a determinate sentence will be imposed: Kulah [2007] EWCA Crim 1701.
• Consideration is given to the unduly lenient sentence provisions where the court has fallen into error and failed to impose a life sentence or extended sentence where it must or where that is the only reasonable sentence, or where the minimum term set is unduly lenient.