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 as to whether to impose an IPP senence and whether a prisoner was ready for release on licence had common elements but were substantially different. The test for imposing IPP were set higher.The court set out six reasons for marking a difference, including: ‘First, the two tests are, both in their terms and in their default position, substantially different. Imposition depends upon the court being positively satisfied of ‘a significant risk to members of the public of serious harm occasioned by the commission of further specified offences’. Release depends upon the Parole Board being ‘satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined’.
Second, the test for release applied under the 2003 Act to a sentence of IPP was the test for discretionary life sentences encapsulated in statutory form first in section 34(4)(b) of the 1991 Act, and later in section 28(6)(b) of the 1997 Act, and since also applied to mandatory life sentences. Those drafting and enacting the 1991 Act must be taken to have been aware of the decision in Ex p Bradley (decided on 4 April 1990). Those drafting and enacting the 1997 Act must be taken to have been aware of and accepted the line of authority consisting of Ex p Bradley, Ex p Wilson and Ex p Lodomez. Parliament therefore accepted a difference in the tests for imposing and for release from a discretionary life sentence. In introducing a sentence of IPP into the same framework for release as applies to discretionary life sentences, Parliament must on the face of it have intended to apply to sentences of IPP the same test for release as for discretionary life sentences, again even though that differed from the test for imposition.
Third, the phrase ‘no longer necessary for the protection of the public’ in the test for release does not import any reference to the threshold risk justifying the imposition of the sentence. The sentence imposed will itself operate as a complete protection of the public against any real risk during the tariff period. The phrase does no more than raise the question whether continued detention, after the tariff period, is any longer necessary to achieve that protection. ‘
Lord Neuberger, President, Lord Mance, Lord Sumption, Lord Reed, Lord Carnwath
[2013] UKSC 47, [2013] PTSR D37, [2013] 3 WLR 281, [2013] 4 All ER 177, [2013] WLR(D) 274, UKSC 2013/0152
Bailii, WLRD, Bailii Summary, SC Summary, SC
Criminal Justice Act 2003 225 8229, Crime (Sentences) Act 1997 28 29 30 31 32 33 34
England and Wales
Citing:
At first instance – Sturnham, Regina (on The Application of) v Parole Board, Secretary of State for Justice Admn 14-Mar-2011
S was serving a term of life imprisonment. After serving the tariff, his detention should have been reviewed. After several serious delays, and a decision that he should instead be transferred to open conditions, he brought proceedings for judicial . .
Appeal from – Sturnham v Secretary of State for Justice CA 23-Feb-2012
The claimant life sentence prisoner had inter alia been detained after the expiry of his tarriff pending a review of whether his continued detention was required for public protection. That review had been delayed, and the claimant was awarded . .
Cited – Regina v Hodgson CACD 1967
The court stated that the exceptional circumstances required to justify imposition of a life sentence for an offence other than murder are present if three conditions. First, the offence or offences are in themselves serious enough to require a very . .
Cited – Regina v Wilkinson CACD 1983
A discretionary life sentence should be reserved for the most exceptional circumstances, and for the most part for offenders who were incapable of being dealt with under the Mental Health Act 1959, ‘yet who are in a mental state which makes them . .
Cited – Regina v Parole Board, Ex parte Bradley QBD 1990
A Parole Board should scrutinise ever more anxiously whether the level of risk is unacceptable on considering the release of a prisoner, the longer the time the prisoner has spent in prison following the expiry of his tariff. The Board had to carry . .
Cited – Attorney-General’s Reference No 32 of 1996, Regina v Whittaker CACD 1997
The Court described the circumstances under which a life sentence of imprisonment can be imposed: ‘It appears to this Court that the conditions may be put under two heads. The first is that the offender should have been convicted of a very serious . .
Cited – Pedley, Martin and Hamadi v Regina CACD 14-May-2009
The court considered the justification for extended sentences of imprisonment for public protection: ‘Its justification is the protection of the public. It is indeterminate. Release depends on the judgment of the Parole Board as to the risk which . .
Cited – Thynne, Wilson and Gunnell v The United Kingdom ECHR 25-Oct-1990
The applicants, discretionary life prisoners, complained of a violation on the ground that they were not able to have the continued lawfulness of their detention decided by a court at reasonable intervals throughout their imprisonment.
Held: A . .
Cited – Regina v Chapman CACD 22-Jul-1999
A discretionary life sentence intended to protect the public could now only be imposed after establishing compliance with the Act in that the sentence was so serious as to deserve a very long sentence, and for an unforeseeable time into the future, . .
Cited – Stafford v The United Kingdom ECHR 28-May-2002
Grand Chamber – The appellant claimed damages for being held in prison beyond the term of his sentence. Having been released on licence from a life sentence for murder, he was re-sentenced for a cheque fraud. He was not released after the end of the . .
Cited – Regina (Noorkoiv) v Secretary of State for the Home Department and Another CA 30-May-2002
The claimant was a prisoner. He became entitled to be considered for release on parole, but was not released because the Parole Board had not made a decision.
Held: The system for consideration of the release of discretionary and life . .
Cited – Lang and Others, Regina v CACD 3-Nov-2005
In each case the defendant had commited violent or sexual offences and were caught by the new mandatory sentencing provisions, and been made subject to life imprisonment, or detention for public protection, or an extended sentence.
Held: The . .
Cited – Regina v Lichniak HL 25-Nov-2002
The appellants challenged the mandatory sentence of life imprisonment imposed on them on their convictions for murder. They said it was an infringement of their Human Rights, being arbitrary and disproportionate.
Held: The case followed on . .
Cited – McClean, Re HL 7-Jul-2005
The appellant was serving a life sentence for terrorist offences. He complained that he should have been released under the 1998 Act. It was said he would be a danger to the public if released. On pre-release home leave he was involved in a . .
Cited – Johnson, Regina v; Regina vHamilton; Attorney General’s Reference (No 64 of 2006) CACD 20-Oct-2006
The court provided explanation of the nature of sentences passed for public protection under the 2003 Act, and in particular whether it was correct to base the assessment on previous convictions.
Held: ‘dangerousness’ is intended to represent . .
Cited – Regina v Kehoe CACD 8-Apr-2008
The defendant appealed against the imposition of a life sentence with a minimum of four and a half years imprisonment through section 225.
Held: A finding under section 225 would lead to adequate protection against the defendant, and the . .
Cited – Secretary of State for Justice v James HL 6-May-2009
The applicant had been sentenced to an indefinite term for public protection, but the determinate part of his sentence had passed with no consideration as to whether his continued detention was required.
Held: The post tariff detention was not . .
Reservations – 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 . .
Cited – Bayliss, Regina (On the Application of) v Parole Board CA 22-Jul-2009
The prisoner, subject to a term of imprsonment for public protection, and had completed thr tariff period. He now challenged the decision of the Board not to direct his relase and or transfer to open conditions.
Held: The appeal failed. The . .
Cited – Pedley, Martin and Hamadi v Regina CACD 14-May-2009
The court considered the justification for extended sentences of imprisonment for public protection: ‘Its justification is the protection of the public. It is indeterminate. Release depends on the judgment of the Parole Board as to the risk which . .
Cited – Secretary of State for Justice v Walker; Same v James CA 1-Feb-2008
The claimant had been sentenced to a short period of imprisonment but with an indeterminate term until he demonstrated that it was no longer necessary for the protection of the public. He complained that the term having expired, no opportunity had . .
Cited by:
Cited – Kennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
Cited – Haney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .
Lists of cited by and citing cases may be incomplete.
Prisons
Updated: 15 November 2021; Ref: scu.512118