West Law Report

Unhelpful assumption is gone

Posted in Times Law Report by mrkooenglish on December 5, 2008

From The Times
December 4, 2008
Unhelpful assumption is gone

Court of Appeal, Criminal Division
Published December 4, 2008
Attorney-General’s Reference (No 55 of 2008)

Recent amendments to the assessment of dangerousness provisions allowed the court to exercise its judgment, untrammeled by artificial constraints, as to whether a sentence of imprisonment for public protection should be passed if the necessary criteria were established.

A sentencing court should have in mind all the methods of providing the necessary public protection against the risk posed by an individual offender.

The Court of Appeal, Criminal Division, so stated, on November 26, 2008, when granting leave to the Attorney-General to refer an unduly lenient sentence, and disposing of eight other sentence appeals.

The cases were listed together before the court so that it could consider and review the amendments made by sections 13 to 18 of the Criminal Justice and Immigration Act 2008 to Chapter 5 of Part 12 of the Criminal Justice Act 2003.

THE LORD CHIEF JUSTICE said that under section 229 of the 2003 Act the court’s assessment of dangerousness which had been subject to a prescriptive and unhelpful statutory assumption, in section 229(3), in relation to the risks identified in section 229(1), which was to be applied unless to do so would be unreasonable, had disappeared with the coming into force on July 14, 2008, of the amendments made by sections 13 to 18 of the 2008 Act.

No court would mourn its departure.

The sentencing option of imprisonment for public protection in an appropriate case remained an important sentencing alternative available to the court but when a court exercised its judgment in such circumstances it was entitled to and should have in mind all the alternative and cumulative methods of providing the necessary public protection against the risk posed by the individual offender.

For example, structured around a determinate sentence, or indeed an extended sentence under section 227 of the 2003 Act, a sexual offences prevention order, with appropriate conditions attached, could form part of what might colloquially be described as the total protective sentencing package.

If the overall sentencing package provided appropriate protection, imprisonment for public protection should not be imposed.

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