Liam Bennett [2019] EWCA Crim 629

Liam David Bennett [2019] EWCA Crim 629 concerns an appeal against an indeterminate sentence of detention for public protection imposed by His Honour Judge Webb at Wolverhampton Crown Court. The Court of Appeal (Criminal Division), composed of Sir Brian Leveson (President of the Queen’s Bench Division), Mr Justice Jeremy Baker, and Mrs Justice Simler DBE, dismissed the appeal on 11 April 2019.

Mr Bennett had been convicted on 8 November 2006 at Dudley Magistrates’ Court of arson contrary to section 1(3) of the Criminal Damage Act 1971 and had also pleaded guilty to two offences of criminal damage. He had been committed to the Crown Court for sentence in respect of those offences and four further indictable offences to which he subsequently pleaded guilty, together with five offences taken into consideration. On 24 May 2007 he was sentenced in respect of the arson offence to an indeterminate sentence of detention in a young offender institution for public protection with a minimum term of two years and 82 days, with concurrent determinate sentences imposed for the other matters. The overall sentence was therefore an indeterminate sentence with that minimum term. Mr Bennett, born on 21 July 1988, was 17 years of age when he committed the arson on 14 July 2006 but had turned 18 by the date of his conviction on 8 November 2006. He was 30 years of age at the date of appeal and remained in custody under the terms of the sentence.

The arson offence took place late at night when Mr Bennett set alight items in the loft space of an unoccupied dwelling in Dudley, causing over £3,000 of damage. The adjoining dwelling was occupied by a family with young children. He had also caused further damage to the property, including to windows and pipework, and daubed his name in blood on the exterior. The criminal damage offences and those taken into consideration occurred between July 2006 and January 2007 and involved £4,500 of damage to motor vehicles and to a doctor’s surgery window. The burglary and attempted burglary offences took place in February 2007, one involving spraying detergent over walls, furnishings and electrical appliances.

Mr Bennett had an extensive history of previous convictions. There were three convictions for criminal damage in 2001, 2002 and 2003. In 2004 he was convicted of further criminal damage, battery and four offences of assault occasioning actual bodily harm. In 2005 he was convicted of two robberies and three attempted robberies for which he received a 14 month detention and training order. In 2006 he was convicted of arson and conditionally discharged by Shrewsbury Juvenile Court. It was the commission of the current offences whilst subject to that conditional discharge that resulted in an additional concurrent four months’ detention.

At the sentencing hearing the judge had before him a pre-sentence report dated 27 April 2007 which described Mr Bennett’s troubled upbringing, his difficulties with his mother and stepfather, his disruptive behaviour at school, permanent exclusion at age 14 after assaulting the head teacher, and his consumption of alcohol and drugs. The author noted that his attitude was at times belligerent and motivated by self-gratification, that he lacked motivation to alter his behaviour, and that he presented a high risk of serious harm to the public from further arson offences. The court also had the benefit of a psychiatric opinion from Dr Hurani who stated that Mr Bennett had been diagnosed with both Asperger’s syndrome and attention deficit hyperactivity disorder but was not suffering from any other psychiatric disorder.

In passing sentence the judge stated that by virtue of the appellant’s age at the time he committed the offence of arson, the judge was not required to assume he was dangerous within the Criminal Justice Act 2003. However, the persistent commission of serious specified offences showed no signs of ceasing. The judge found that Mr Bennett was prepared to commit serious damage by any means, that there was an obvious danger he would commit further arson offences, and that he had total disregard for his own or others’ safety. The judge was of the opinion that there was a significant risk to the public of death or serious personal injury caused by the commission of further specified offences. The judge considered that although arson was punishable with life imprisonment, the offence was not sufficiently serious to qualify for a life sentence, and that accordingly he was required by law to impose a sentence of detention in a young offender institution for public protection.

Since the imposition of the sentence Mr Bennett had remained in closed conditions subject to periodic reviews by the Parole Board. A report by a registered forensic psychologist dated 27 January 2015 considered it difficult to determine whether Mr Bennett had Autistic Spectrum Disorder and noted that he did not present with many autistic traits in interview. He had exhibited violence and aggression towards staff and prisoners in the past, but had undergone substantial offending behaviour work and demonstrated some progress through his ability to articulate understanding of risk management skills and through a reduction in the frequency of challenging, aggressive and violent behaviour. He was assessed as posing a high risk of future violence and serious harm if released at that time, but it was recommended that he be transferred to open conditions where his levels of risk could be appropriately managed and he could undergo testing in preparation for release on licence.

Two reports from chartered psychologist Dr Anderson dated November 2015 and October 2016 also considered that Mr Bennett did not present with Autistic Spectrum Disorder. Dr Anderson considered that both his previous offending and more recent custody behaviour were likely contributed to by the lack of emotional regulation associated with ADHD, but that this was more controlled now than in childhood. He would not recommend release at that time but would recommend a move to open conditions, and considered that part of Mr Bennett’s difficulties were due to frustration at lack of progress towards such a move. By the time of the second report there had been a significant deterioration in behaviour following a prison transfer which the appellant believed unjustified. Dr Anderson believed the deterioration had been influenced by lack of progress towards open conditions but was realistic about the prospects of such a move given the recent behaviour. The appellant himself considered a more cautious progress to be beneficial. A Parole Assessment Report dated September 2017 noted that Mr Bennett had twice been refused parole due to continued bad behaviour but was progressing much better and recommended a move to a more local category B establishment followed by reassessment with a view to re-categorisation.

The grounds of appeal did not challenge the sentencing judge’s determination that Mr Bennett was a dangerous offender or the length of the minimum term. The main ground concerned the proper interpretation of sections 225 and 226 of the Criminal Justice Act 2003 as originally enacted, specifically whether it is the person’s age at the date of commission of an offence or at the date of conviction which determines whether they are dealt with under section 225 or 226. Mr Burton QC, instructed by the Public Defenders Service and appearing with Mr Mohabir, submitted that it was the age at the date of commission that was determinative, such that because Mr Bennett was 17 when he committed the arson he should have been dealt with under section 226. He pointed out that under section 226 the judge was required to consider whether an extended sentence would be adequate for the purpose of protecting the public before imposing an indeterminate sentence, and that the sentencing remarks neither specified under which section the sentence was imposed (though the Record Sheet stated section 226) nor expressly considered the adequacy of an extended sentence. He submitted that if the judge imposed the sentence under section 225 this was an error of law and that if he should have imposed it under section 226 he failed to consider whether an extended sentence would suffice.

Mr Burton QC submitted that the interpretation relied upon by the appellant reflected the domestic approach to sentencing set out in cases such as Ghafoor [2003] 1 Cr App R(S) 84 and Britton [2006] EWCA Crim 2875, and that bearing in mind section 3 of the Human Rights Act 1998, the principle of lex gravior encapsulated in Article 7 of the European Convention on Human Rights required such an interpretation. He submitted that a previous constitution of this court in Robson [2006] EWCA Crim 1414 wrongly interpreted sections 225 and 226 of the Criminal Justice Act 2003, and that in Bowker [2007] EWCA Crim 1608 the court’s reliance on Taylor v United Kingdom (Application No 48864/99, 3 December 2002) in rejecting the applicability of Article 7 had been undermined by more recent cases including Gabarri Moreno v Spain (Application No 68066/01, (2004) 39 EHRR 40), Camilleri v Malta (Application No 42931/10, 27 May 2013) and Scoppola v Italy (No 2) ((2010) 51 EHRR 12). He finally submitted that the interpretation relied upon was supported by the approach taken in Venables [2014] EWCA Crim 659 and that as a result of the unlawful sentence Mr Bennett had remained in custody long after his tariff expired with the risk of institutionalisation.

Mr Keeling QC for the respondent submitted that it was clear from the judge’s sentencing remarks that he was dealing with Mr Bennett under section 225 of the Criminal Justice Act 2003, and that given his age at the date of conviction this was the appropriate section as section 226 applied only where the offender was under 18 when convicted. He submitted that this interpretation followed from the express wording of the two sections and was the manner in which they were interpreted in Robson. He submitted that although the Ghafoor line of authorities established that when sentencing an individual who had passed a relevant age threshold between commission and conviction the court should take as its starting point the period applicable when the offence was committed, this had no application to a mandatory sentencing regime concerning the type of sentence to be imposed on dangerous offenders as opposed to the length of the custodial term. He pointed out that the court in Bowker held that Article 7 was directed towards preventing retrospective changes in the law adversely affecting the individual, and that in the present case there were no such changes nor any lack of foreseeability. He submitted that the judge imposed the only type of sentence lawfully open to him and that Roberts [2016] EWCA Crim 71 made clear that this court has no power to intervene where an individual’s continued detention arises from a lawfully imposed sentence.

The court set out the relevant statutory provisions. Section 225 of the Criminal Justice Act 2003 as in force in 2007 provided that it applied where a person aged 18 or over was convicted of a serious offence committed after commencement and the court was of the opinion that there was a significant risk to the public of serious harm from further specified offences. If the offence was one for which the offender would be liable to imprisonment for life and the court considered the seriousness justified life imprisonment, the court must impose life imprisonment. In a case not falling within that subsection, the court must impose a sentence of imprisonment for public protection. Section 226 applied where a person aged under 18 was convicted of a serious offence committed after commencement and the court was of the opinion that there was a significant risk to the public. If the offence was one for which the offender would be liable to detention for life under section 91 of the Sentencing Act and the seriousness justified detention for life, the court must impose such detention. If not, and the court considered that an extended sentence under section 228 would not be adequate for protecting the public, the court must impose a sentence of detention for public protection. Section 228 set out the requirements for extended sentences for persons under 18 convicted of specified offences. Article 7.1 of the European Convention on Human Rights provided that no one shall be held guilty of any criminal offence on account of any act which did not constitute an offence when committed, and that a heavier penalty shall not be imposed than the one applicable at the time the offence was committed.

The court reviewed the relevant authorities. In Ghafoor the offender was 17 when he committed riot but 18 when he pleaded guilty and was sentenced. The court held that the starting point should be the sentence the defendant would have been likely to receive if sentenced at the date of commission of the offence. This was described as a powerful factor. There had to be good reasons for departing from the starting point. The relevant factors included whether there was a long interval between commission and conviction, whether the offender had been revealed as more dangerous than at the date of the offence, and whether the tariff for the offence had increased. It would rarely be necessary to pass a sentence more severe than the maximum available at the date of commission. In a case where conviction was only a few months after the offence it would rarely be appropriate to pass a longer sentence than that which would have been passed at the date of the offence. Before considering Britton the court considered Danga, which concerned an offender who had crossed the age 21 threshold between commission and conviction. The relevant statutory provision stated that the only custodial orders a court may make where a person under 21 was convicted or found guilty of an offence were specified types not including imprisonment. The court held that the relevant date for determining age so as to restrict the type of custodial orders was the date of conviction. The court observed that the broad conceptual approach of a sentencing court did not undergo fundamental change simply because an offender passed his 21st birthday, and that in substance an offender aged 21 years and a few days was likely to receive much the same punishment as one aged 20 years and 11 months.

In Britton the offender was 17 when he committed offences but 18 when he pleaded guilty. The court accepted that the Ghafoor approach applied almost without exception and reduced the sentence. However, the court made clear that in so far as the form of sentence was concerned, the relevant date for determining the offender’s age was the date of conviction. In Robson the offender was 17 at the date of commission and conviction but 18 at sentence. The court explained that if the appellant had been treated as aged 18 so that section 225 applied, the judge would have had to impose at the very least a sentence of detention for public protection and the option of an extended sentence would not have been available because the offences were serious offences. On the other hand, as he was treated as being under 18, the judge had the option of either detention for public protection under section 226(3) or an extended sentence under section 228 depending on whether an extended sentence would be adequate. The court determined that the critical date for assessing the offender’s age was the date of conviction. The court observed that sections 225 and 227 applied where a person aged 18 or over was convicted of a serious or specified offence, and sections 226 and 228 applied where a person aged under 18 was convicted of such an offence. If the relevant age was at the date of sentence the provisions would have been drafted differently, and likewise if it was the date of the offence. As a matter of statutory construction, the court concluded that the age for determining which statutory regime applied was the age at the date of conviction.

In Bowker the offender was 17 when he committed violent disorder but

R (Haney; Kaiyam and others) v Secretary of State for Justice and others [2014] UKSC 66, [2015] 2 WLR 76, [2015] 2 All ER 822, [2015] AC 1344
R v Docherty [2014] EWCA Crim 119
W [2009] EWCA Crim 2858
P [2016] EWCA Crim 923
Robson [2006] EWCA Crim 1414
Britton [2006] EWCA Crim 2875, [2007] 1 Cr App R (S) 121
Bowker [2007] EWCA Crim 1608
Roberts and Others [2016] EWCA Crim 71, [2016] 2 Cr App R (S) 14