Regina v Smith (Nicholas): SC 20 Jul 2011

The defendant committed a series of armed robberies whilst released on licence from a term of life imprisonment. He appealed against an additional sentence of imprisonment for public protection (IPP), saying it was wrong to have two indeterminate sentences side by side. He said that because he could not be released from that life sentence unless and until the Parole Board was satisfied that it was no longer necessary for the protection of the public that he should be detained, there could not be said to be any ‘significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences’ so as to justify IPP.
Held: The appeal failed. When considering an IPP the judge was not asked whether the prisoner might be a danger on release from the determinate part of his sentence: ‘Section 225(1)(b) is in the present tense. The sentencing judge is permitted to impose a sentence of IPP if ‘there is a significant risk’ that members of the public will suffer serious harm as a result of the commission by the defendant of further offences.’ It was also correct to impose a determinate sentence at the same time. It would serve to remind the parole board of the seriousness of the risk posed by the defendant.
Counsel argued that the sentencing judge’s duty was to ‘consider whether he will pose a significant risk when he has served his sentence’ (para 14). Lord Phillips rejected that, saying: ’15. If this is the correct construction of section 225(1)(b) it places an unrealistic burden on the sentencing judge. Imagine, as in this case, that the defendant’s conduct calls for a determinate sentence of 12 years. It is asking a lot of a judge to expect him to form a view as to whether the defendant will pose a significant risk to the public when he has served six years. We do not consider that section 225(1)(b) requires such an exercise. Rather it is implicit that the question posed by section 225(1)(b) must be answered on the premise that the defendant is at large. It is at the moment that he imposes the sentence that the judge must decide whether, on that premise, the defendant poses a significant risk of causing serious harm to members of the public.’

Lord Phillips, President, Lord Walker, Lady Hale, Lord Collins, Lord Wilson
[2011] UKSC 37
Bailii, Bailii Summary
Criminal Justice Act 2003 225(3)
England and Wales
Citing:
At CACDRegina v Smith, N CACD 27-Jan-2010
The defendant had been convicted of a series of armed robberies. He had already been sentenced to life imprisonment and committed these offences while released on licence. He now appealed against an additional sentence of imprisonment for public . .
Question certifiedRegina v Smith CACD 10-Mar-2010
The court certified a question for the Supreme Court namely: ‘Is it appropriate to impose a sentence of imprisonment for public protection upon a defendant who has been recalled upon a life sentence?’ . .
CitedO’Brien, Harris, Moss, Llewellyn and others v Regina CACD 14-Jul-2006
In each case the court was asked whether a sentence imposed under section 225(2) of the 2003 CJA for the protection of the public could be made to run consecutively to the principle sentence for the offence, and how did this link in with the courts . .
CitedRegina v Delucca CACD 31-Mar-2010
The court was asked as to as to the powers of the court in relation to the minimum term that can be imposed when sentences of Imprisonment for Public Protection (IPP) are passed under the provisions of the Criminal Justice Act 2003 (CJA 2003). The . .

Cited by:
ReservationsSturnham, Regina (on The Application of) v The Parole Board of England and Wales and Another (No 2) SC 3-Jul-2013
From 4 April 2005 until 3 December 2012, English law provided for the imposition of sentences of imprisonment for public protection (‘IPP’). The Court addressed the practical and legal issues resulting from the new system.
Held: The decision . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing

Updated: 09 November 2021; Ref: scu.441991