Marklew & Anor, R v [1998] EWCA Crim 1188

EWCA-Crim
Marklew & Anor, R v
[1998] EWCA Crim 1188 · 1998-04-06

THE LORD CHIEF JUSTICE: Mr Justice Thomas will give the judgment of the court.

MR JUSTICE THOMAS: There are before the Court two renewed applications for leave to appeal following the refusal of leave by the single Judge. They both concern applicants under the age of 18 who pleaded guilty to offences of arson and were sentenced to detention for life under the provisions of s. 53(2) of the Children and Young Persons Act 1933 (as amended).In each case it is not in issue that it was appropriate for the judge to pass discretionary life sentences, but each applicant seeks leave to appeal against the length of the period specified under s. 34 of the Criminal Justice Act 1991. We are much indebted to Mr Walmsley who has appeared for Marklew and Mr Thackray who has appeared for Lambert for their assistance. Both counsel were content that if we granted leave to appeal, we should treat the hearing of the application as the hearing of the appeal as there were no further submissions that they wished to make.

The legislative provisions under which they were sentenced

Under s. 34 (1) of the Criminal Justice Act 1991 which was in force when both applicants were sentenced and remained in force until 1 October 1997, a judge was empowered when passing a discretionary sentence of life imprisonment to specify by order such part of the sentence which should be served before the discretionary life prisoner's case was referred to the Parole Board with a view to the board considering his release.The exercise of the court's discretion in determining that specified period was governed by s. 34(2) of the Act:
"A part of a sentence so specified shall be such part as the court considers appropriate taking into account -- (a) the seriousness of the offence, or the combination of the offence and other offences associated with it; and (b) the provisions of this section as compared with those of section 33(2) above and section 35(1) below."
Under s. 33(2) and s. 35(1) of the Act a prisoner who received a determinate long term sentence would be entitled to be released after serving two thirds of his term (s 33(2)) and might be released after serving only half his term (s 35(1)).When these provisions entered into force, the then Lord Chief Justice issued a practice direction: Practice Direction (Crime: Life Sentences) [1993] 1 WLR 223:"1. Section 34 of the Criminal Justice Act 1991 empowers a judge when passing a sentence of life imprisonment - where such a sentence is not fixed by law - to specify by order such part of the sentence ("the relevant part") as shall be served before the prisoner may require the Secretary of State to refer his case to the Parole Board.2. Thus the discretionary life sentence falls into two parts:(a) the relevant part which consists of the period of detention imposed for punishment and deterrence, taking into account the seriousness of the offence and(b) the remaining part of the sentence during which the prisoner's detention will be governed by considerations of risk to the public.3. The judge is not obliged by statute to make use of the provisions of section 34 when passing a discretionary life sentence. However, the judge should do so, save in the very exceptional case where the judge considers that the offence is so serious that detention for life is justified by the seriousness of the offence alone, irrespective of the risk to the public. In such a case, the judge should state this in open court when passing sentence.4. In cases where the judge is to specify the relevant part of the sentence under section 34, the judge should permit counsel for the defendant to address the court as to the appropriate length of the relevant part. Where no relevant part is to be specified, counsel for the defendant should be permitted to address the court as to the appropriateness of this course of action.5. In specifying the relevant part of the sentence, the judge should have regard to the specific terms of section 34 and should indicate the reasons for reaching his decision as to the length of the relevant part.6. Whether or not the court orders that section 34 should apply, the judge shall not, following the imposition of a discretionary life sentence, make a written report to the Secretary of State through the Lord Chief Justice as has been the practice in recent years."Following that practice direction, the procedure became well established that a judge, when imposing a discretionary life sentence, should carry out the requirements set out by the Lord Chief

Justice in R v O 'Connor (1994) 15 Cr App R (S) 473 at 476:

"The exercise that the judge must perform, therefore, is to decide, first of all, what would be the determinate sentence that he would have passed in the case if the need to protect the public, and the potential danger of the offender, had not required him to impose a life sentence. Having decided what the determinate sentence should be, he then has to take into account s. 33 (2) and s. 35(1) and decide on such proportion of that determinate sentence as falls between a half and two-thirds of it."

The discretion under s. 34(2 )

There are very few cases where an issue has arisen as to the principles on which the court should determine whether the specified part should be a half or two thirds or somewhere in between.In R v Vale [1996] 1 Cr App (S) 405, the appellant, an adult, had pleaded guilty to manslaughter on the grounds of diminished responsibility and been sentenced to life imprisonment; the judge concluded that a determinate sentence would have been 15 years and he determined that the specified period should be two-thirds of that - 10 years. This court concluded that the determinate sentence should have been 12 years. The court then considered what proportion should be specified under s. 34. It was submitted on the appellant's behalf that half would be appropriate as after half a sentence had been served, it was the risk to the public which primarily justified the continued custody for a long term prisoner. It was at the half way point that the issue of risk to the public was effectively put in the hands of the Parole Board. The Court concluded:
"One sees the force of that submission, but the simple fact is that the section allows a discretion to the court to fix on a period between one-half and two-thirds of the sentence and that discretion is to be exercised having regard to all the circumstances of the case.
There are undoubtedly cases, and one in particular of which we are aware is one in which my Lord, Mitchell J, was concerned, where a figure of less than two-thirds has been taken, but it must depend on the learned judge's assessment of the requirements of the case, including, as the section specifies, the seriousness of the offence. All that we propose to say is that, having considered with the greatest care the medical evidence, the learned judge's observations and the facts of this particular case, we are not persuaded that he was wrong to fix upon a period to two-thirds rather than any lesser period. Accordingly, reducing as we do the starting point from 15 to 12 years, the specified period will be reduced from 10 to eight years."In R v Carr [1996] 1 Cr App R(S) 191, the 15 year old appellant had been sentenced to life imprisonment under s. 53(2) of the Children and Young Persons Act for causing grievous bodily harm with intent. At a further hearing, the judge decided that the appropriate determinate sentence would be one of seven and a half years and the period specified under s. 34 should be half of that - three and a half years. This court concluded:
"Had this been a case of an adult offender then in our view the period specified by the learned judge would have been absolutely right, but of course we are dealing here with a 15 year old child, and we appreciate that three-and-a-half years is a very long time in the eyes and indeed in the life of a child of that age. We think that given all the circumstances, the age in particular, and the fact that a two-year minimum period was specified as the required treatment period at the first hearing that to approach this case on the basis of a determinate sentence of seven years is to approach it in an incorrect way. In our view the appropriate determinate sentence would have been one of four years' detention, and to arrive at a specified period we take half that determinate sentence which results in a specified period of two years which was the original minimum time mentioned by the psychiatrists. Of course that does not mean, and must not be taken to mean, that at the expiration of two years this appellant will be released. It all must depend on how this young woman responds to treatment. If unhappily she does not respond within that time then treatment will have to continue. All we are saying in specifying that period is that is the period before the expiration of which parole cannot be applied for."
In R v Secretary of State for the Home Department ex p Venables [1997] 3 WLR 23 , the House of Lords was concerned with the legality of the fixing of a tariff by the Home Secretary in respect of the mandatory sentence of detention during Her Majesty's pleasure passed on two juveniles for the murder of James Bulger. The issues in that appeal are not relevant, but it is important to refer to one passage in the speech of Lord Browne-Wilkinson at p 52 D-E where he referred to some of the considerations to be taken into account in determining the specified period under s. 34 (2):
"In setting the judicialised tariff period under s. 34(2) of the 1991 Act, the judge is directed to specify such a period as is ‘appropriate’ taking into account the seriousness of the offence. The section does not say that that is the only matter to be taken into account. No doubt the judge, in fixing the period, will also take into account all other normal sentencing considerations. In relation to a child sentenced to detention for life the judge is bound by s. 44(1) of the 1933 Act (which was not repealed or altered in any way by the 1991 Act) to have regard to the welfare of the child. Therefore, in imposing such a tariff he must take into account the need for flexibility in the treatment of the child and, in so doing, will set the minimum tariff so as to ensure that at the earliest possible moment the matter comes under consideration of the Parole Board who will be able to balance the relevant factors including the development and progress of the child."
Shortly after the decision of the House of Lords which was given on 12 June 1997, the Divisional Court considered an application where the issue of the discretion under s. 34(2) was directly raised: R v Sec of State for the Home Dept ex p Furber [1998] 1 Cr App R(S) 208, decided on 30 June 1997. The applicant had pleaded guilty at the age of 16 to an offence of manslaughter. She had been sentenced in 1991 under the provisions of s. 53(2) of the Children and Young Persons Act 1933 to life imprisonment; at that time the provisions of the Criminal Justice Act 1991 had not come into force. Under the transitional provisions of the Act, the Home Secretary subsequently had certified 7 years as the specified period for the purposes of s. 34; in certifying this period the Home Secretary had to put himself in the position of the judge and take into account the same considerations as a judge would have done when determining the specified period under s. 34.The Divisional Court considered that the determinate period of the sentence should have been 10 1/2 years and that the Home Secretary should not have fixed a period in excess of the 6 years which the offender had already served.In reaching this decision, Simon Brown LJ, giving the judgment of the court considered a number of cases where a determinate sentence had been given for manslaughter and where in passing a life sentence the court had set out the determinate sentence it would have passed. He concluded at p 213:
"One cannot but recognise an apparent discordance between the two categories of case. The starting point for calculating section 34 tariffs is the appropriate determinate sentence were there no need to pass a life sentence for the protection of the public. Given that determinate sentences themselves are sometimes longer than otherwise they would be so as to provide some additional safeguard for the public, it might be thought appropriate to strip out that risk element and discount the general range of such sentences. Yet section 34 tariff periods appear to take longer, rather than shorter, notional determinate sentences as their starting point. If it be suggested that the explanation for this lies in the fact that offences attracting life sentences are likely to be amongst the graver diminished responsibility manslaughter cases, I have to say that for my part I can find little support for this view in the facts of the various cases.
There are, moreover, other considerations which might perhaps be thought to suggest that the tariff in life sentence cases - the point at which the Parole Board first starts to consider the possibility of releasing the prisoner under licence should certainly be no longer than had considerations of public safety not dictated the need for an indeterminate rather than a determinate sentence in the first place. One should not overlook the peculiarly disadvantaged position of life sentence prisoners: not to be released back into society unless and until the Parole Board is satisfied that they have ceased to pose any real (as opposed to merely minimal) risk. This, as was recognised in R v Parole Board, ex p. Bradley [1991] 1 WLR 134 at 145, 'may well cause the accused to serve longer, and sometimes substantially longer, than his just deserts'. Should not the corollary of that be that, if the prisoner can indeed safely be released back into the community, then the possibility of such release should not ordinarily be postponed by a long tariff period. Secondly it should be borne in mind that even where the Parole Board in life sentence cases is inclined to make a favourable recommendation, almost invariably it requires a two-year trial period during which the prisoner can be tested in open prison conditions. Given this in-built delay in the overall release process, ought not that process to start if anything earlier rather than later than in the case of determinate sentence prisoners whose eligibility for parole, under statute, starts at the half-way point of their sentence and who must in any event be released after serving two-thirds."He then considered what the specified period should be. After referring to the decision of this Court in Carr , Simon Brown LJ said at p 216:
"There, it will readily be seen, even before the decision in ex p. Venables , the Court took half rather than two-thirds of the appropriate determinate sentence when arriving at the specified period under section 34. In my judgment, following the House of Lords decision, that generally now should be regarded as the correct approach in section 53 (2) cases."
We agree. In the case of a young person who is to be sentenced to a period of detention for life under the provisions of s. 53(2) or an adult who is to be sentenced to a discretionary life sentence, the general approach is to decide first the determinate part of the sentence that the judge would have imposed if the need to protect the public and the potential danger of the offender had not required him to pass a life sentence. It is the imposition of the life sentence that protects the public and is necessitated by the risk that the defendant poses. That element is therefore not to be reflected in the determinate part of the sentence that the court would have imposed; the determinate part is therefore that part that would have been necessary to reflect punishment, retribution, and the need for deterrence. It is we consider important that the judge should, when passing sentence, make clear to the defendant what that determinate period would have been.The judge should then exercise his discretion in fixing the specified period. In so doing the general approach in the case of a young person should be to fix a period at half the determinate sentence that would have been passed. This approach would in most cases reflect the court's duty under s. 44 of the Children and Young Persons Act 1933 and take into account particularly the age of the defendant. There may be circumstances that might arise in the particular facts of a case where a longer period would be appropriate, but having regard in particular to the provisions of s. 44, that would be the exceptional case.In the case of adult offenders, we consider that again the general approach should be to begin consideration of the specified part under s. 34 by taking half the determinate period that would have been passed; that determinate period will reflect the element of punishment, retribution and deterrence in the sentence. In many cases half the determinate period may well be the appropriate period to specify under s. 34. However there may well be circumstances, as the decisions of this court show, where it would be appropriate for the judge in the exercise of his general discretion and in circumstances that arise on the facts of a particular case to fix the specified period at a period which was more than half and up to two thirds of the determinate sentence that would have been passed.

The position under the Crime (Sentences) Act 1997

With effect from 1 October 1997, s. 34 of the Criminal Justice Act 1991 was replaced by s. 28 of the Crime (Sentences) Act 1997. The section was to have taken effect in full in conjunction with the provisions of chapter I of Part II of the Act; as that chapter has not been brought into effect, s. 28 takes effect as modified by paragraph 5 of Schedule 5.With one exception, there has been no change to the substance of the statutory provision previously enacted in s. 34 of the Criminal Justice Act 1991. Therefore the approach that we have outlined will remain applicable as will the provisions of the Practice Direction, although, as we have said, a judge should spell out not only the period specified under s. 28(3) of the Crime (Sentences) Act, but also the determinate sentence he would have passed, but for the need to protect the public.The exception relates to the treatment of time the defendant has spent on remand. It arises in this way.Under the provisions of s. 67 of the Criminal Justice Act 1967, a fixed term determinate prisoner has had the period he has spent on remand before sentence taken into account when calculating the period of the sentence which he has to serve in prison.When s. 34 of the Criminal Justice Act 1991 Act was enacted, no express provision was made for taking the period of remand into account before the discretionary life prisoner's case was referred to the Parole Board.However by an amendment to s. 34 (made by paragraph 46 of Schedule 9 to the Criminal Justice and Public Order Act 1994) the period on remand was to be taken into account; this was done by crediting the time on remand against the specified period which the court had fixed under s. 34(2). The court was therefore placed in the same position when fixing the specified period under s. 34(2) as it was in relation to all custodial sentences and not required to take the time on remand into account in fixing the specified period under s. 34(2). The relevant provisions of s. 34 (as amended) make this clear and it may be helpful if we set them out, including subsection (2) which we have set out above:
"(2) A part of a sentence so specified shall be such part as the court considers appropriate taking into account -- (a) the seriousness of the offence, or the combination of the offence and other offences associated with it; and (b) the provisions of this section as compared with those of section 33(2) above and section 35(1) below.
(3) As soon as, in the case of a discretionary life prisoner --(a) he has served the part of his sentence specified in the order ("the relevant part"); and(b) the Board has directed his release under this section,it shall be the duty of the Secretary of State to release him on licence.(4) ....(5) A discretionary life prisoner may require the Secretary of State to refer his case to the Board at any time --(a) after he has served the relevant part of his sentence; and(b) where there has been a previous reference of his case to the Board, after the end of the period of two years beginning with the disposal of that reference; and(c) where he is also serving a sentence of imprisonment for a term, after he has served one-half of that sentence;and in this subsection 'previous reference' means a reference under subsection (4) above or section 39(4) below made after the prisoner had served the relevant part of his sentence.(6) In determining for the purpose of subsection (3) or (5) above whether a discretionary life prisoner has served the relevant part of his sentence --(a) account shall be taken of any corresponding relevant period; but(b) no account shall be taken of any time during which the prisoner was unlawfully at large within the meaning of section 49 of the Prison Act 1952 ("the 1952 Act").(6A) In subsection (6)(a) above, 'corresponding relevant period' means the period corresponding to the period by which a determinate sentence of imprisonment imposed on the offender would fall to be reduced under section 67 of the Criminal Justice Act 1967....."The period on remand therefore was in effect deducted (by the operation of subsections (6) and (6A)) from the specified period fixed by the court under s. 34 (2).The Crime (Sentences) Act 1997 made provision, by chapter 1 of Part II, for a prisoner to serve the term of imprisonment to which he was sentenced; by s. 9 the court was required to direct the number of days spent on remand which would count towards his sentence. Schedule 6 made provision for the repeal of s. 67 of the Criminal Justice Act 1967 Act.When s. 28 (and some other provisions) of the Crime (Sentences) Act 1997 was brought into force (by The Crime (Sentences) Act 1997 Commencement No 2 and Transitional Provisions Order), Chapter 1 of Part II of the Act (including s. 9) was not brought into force nor was that part of schedule 6 repealing s. 67 of the Criminal Justice Act 1967.In the circumstances in which s. 28 came into force, it took effect subject to the transitional provisions to which we have referred. For convenience we set the section out as it is in force:
"(1) A life prisoner is one to whom this section applies if -- (a) the conditions mentioned in subsection (2) below are fulfilled; or (b) he was under 18 at the time when he committed the offence for which the sentence was imposed
(2) The conditions referred to in subsection (1)(a) above are -- (a) that the prisoner's sentence was imposed for an offence the sentence for which was not fixed by law; and(b) that the court by which he was sentenced for that offence ordered that this section should apply to him as soon as he had served a part of his sentence specified in the order(3) A part of a sentence specified in an order under subsection (2)(b) above shall be such part as the court considers appropriate taking into account --(a) the seriousness of the offence, or the combination of the offence and other offences associated with it; and(b) the effect which section 67 of the Criminal Justice Act 1967 would have had if it had sentenced him to a term of imprisonment; and(c) the provisions of this section as compared with those of sections 33(2) and 35(1) of the 1991 Act.(4) Where in the case of a life prisoner to whom this section applies the conditions mentioned in subsection (2) are not fulfilled, the Secretary of State shall direct that this section shall apply to him as soon as he has served a part of his sentence specified in the direction.

(5) As soon as, in the case of a life prisoner to whom this section applies –-

(a) he has served the part of his sentence specified in the order or direction (‘the relevant part’); and(b) the Parole Board has directed his release under this section,it shall be the duty of the Secretary of State to release him on licence.(6) The Parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this section applies unless --(a) the Secretary of State has referred the prisoner’s case to the Board; and(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.(7) A life prisoner to whom this section applies may require the Secretary of State to refer his case to the Parole Board at any time --(a) after he has served the relevant part of his sentence; and(b) where there has been a previous reference of his case to the Board, after the end of the period of two years beginning with the disposal of that reference; and(c) where he is also serving a sentence of imprisonment or detention for a term, after he has served one-half of that sentence’.and in this subsection ‘previous reference’ means a reference under subsection (6) above or section 32(4) below.(8) In determining for the purpose of subsection (5) or (7) above whether a life prisoner to whom this section applies has served the relevant part of his sentence, no account shall be taken of any time during which he was unlawfully at large within the meaning of section 49 of the Prison Act 1952.(9) An offence is associated with another for the purposes of this section if it is so associated for the purposes of Part I of the 1991 Act."Paragraph 5 of the schedule also requires that:
"Section 28(7) of this Act shall have effect as if -– (a) any reference of a prisoner’s case made to the Parole Board under section 32(2) or 34(4) of the 1991 Act had been made under section 28(6) of this Act; and (b) any such reference made under section 39(4) of that Act had been made under section 32(4) of this Act."
Because s. 9 has not been brought into force, provision is made for the continuation of the effect of s. 67 of the Criminal Justice Act 1967; the indeterminate life prisoner is to continue to receive the benefit of having the period he has spent on remand being taken into account. However this is achieved through a different route. As we have set out, the route under s. 34 was by a credit against the specified period fixed by the Court. Under s. 28, the route chosen is to require the court to take the time spent on remand into account in fixing the specified period under s. 28(3).In computing the period at which the discretionary life prisoner's case is to be referred to the Parole Board (s. 28(5) and s. 28 (7) which correspond to s. 34(3) and s. 34(5) of the 1991 Act), no provision is made by s. 28 (8) (which corresponds to s. 34(6) and (6A) of the 1991 Act) for the time on remand to be taken into account. There is no reference to the provisions s. 67 of the Criminal Justice Act 1967 in that subsection. Instead the Court is obliged to take the provisions of s. 67 of the Criminal Justice Act 1967 into account as one of the matters it takes into account when fixing the specified period under s. 28(3).The question then arises as to how that discretion is to be exercised. Under s. 34, a prisoner would have been entitled to have the period on remand taken into account in computing the time at which his case would be referred to the Parole Board as it would have been credited against the specified period. For indeterminate sentences passed after 1 October 1997, that period no longer has to be credited in that way; a Judge is therefore required to give consideration to taking into account the period the defendant has spent on remand in fixing the specified period under s. 28(3). In the usual case, as a prisoner sentenced to a determinate period of imprisonment would receive credit for time on remand in computing the period of his sentence which he must spend in prison, then the Judge will in the usual case need to give a similar credit in fixing the specified period under s. 28(3). However, consideration of the time spent on remand is one of the matters for the judge's discretion and circumstances might well arise where it would not be appropriate to give credit for that time.The result of this legislative change will also necessitate detailed and accurate information as to time the defendant has spent on remand being made available (by the Crown or the prison service) to the court prior to any indeterminate life sentence being passed.

The present applications

We therefore turn to the applications before us. As both applicants were sentenced on 11 and 22 September 1997 respectively, the provisions of the Crime (Sentences) Act 1997 (which came into force a few days later on 1 October 1997) do not apply to these applications; they are governed by the provisions of s. 34 of the Criminal Justice Act 1991.

Marklew

The applicant Marklew, then 16, pleaded guilty at the Crown Court at Nottingham on 27 February 1997 on two indictments:· on the first indictment he pleaded guilty to a count of arson intending to damage property and being reckless as to whether property would be damaged;· on the second indictment, he pleaded guilty to a count of arson being reckless as to whether life was endangered.He was sentenced by Judge Hopkin on 11 September 1997 to a sentence of detention for life under s. 53 (2) of the Children and Young Persons Act 1933. The Judge specified 8 years as the period under s. 34. In reaching this decision, the Judge did not specify the determinate sentence he would have passed.

The facts in relation to Marklew

On the first indictment, the facts were that on 15 October 1996 the applicant Marklew with two other youths had broken into an army cadet hut at Kirkby in Ashfield and stolen various items hoping to sell them. The hut was unoccupied and the applicant set fire to it hoping that any incriminating evidence would be destroyed; the fire brigade were summoned by someone who was passing by and when they arrived they found the applicant with a fire extinguisher in his hand; the police who had also been summoned arrested him. The cost of repairing the damage was estimated at £300.The applicant was released on bail and he moved into a small hostel in Kirkby in Ashfield run by a charity for six homeless and needy persons in a terraced house; there were five other residents. On the morning of 28 November 1996, the applicant moved out of the hostel and went to live with his mother.That evening, two of the residents went out for the evening; later the same evening at about 7:45, the other two left to go to a friend's house,leaving the building secure. As they left, one of them saw the applicant jogging towards the house. After they had gone, as he subsequently admitted, he broke into the house and set fire to a cushion and turned on the gas burners to help the fire spread. He said that he had started the fire deliberately having thought about it for sometime before hand.One of the residents returned at 9:45 pm to find the house on fire; the fire brigade was summoned and the fire damage contained to one room. The gas had not exploded; had it done so very considerable damage would have been caused to that house and neighbouring houses. The following day the applicant returned and was arrested. As he admitted subsequently, he had gone back so to see how much damage he had caused and whether anyone had been killed. Those matters gave rise to the count in the second indictment.The applicant had had a disturbed upbringing with periods of foster care; he had two previous convictions for criminal damage -- damaging windows -- and one for handling. He had also been cautioned for an arson in 1994.

The sentence passed on Marklew

Prior to sentence, three psychiatric reports were obtained. The applicant admitted to the psychiatrists that he had been setting fires for some years, as he liked doing so. The reports were agreed that the applicant did not suffer from a mental illness under the terms of the Mental Health Act 1983; the consensus was that he was highly dangerous as he had many of the features of a compulsive fire setter. Although the consensus was that the applicant had a psychopathic disorder within the meaning of the Mental Health Act, his lack of insight and motivation rendered the prospects of treatment impossible. The panel at Rampton considered that in view of his youth and immaturity it would be inappropriate to admit him to a high security hospital.The Judge concluded in the circumstances that he could not deal with the applicant under the Mental Health Act. He formed the view, quite rightly, that without treatment the applicant would be highly dangerous and that the public might suffer very serious harm. He passed a sentence of detention for life. The Judge was not referred to the decision of the Divisional Court in ex p Furber (which had by then been reported briefly).On behalf of the applicant Marklew, Mr Walmsley has submitted that the Judge must have determined that the appropriate determinate period was somewhere between 12 years (if the specified period under s. 34 had been two thirds) or 16 years (if the specified period had been half). Bearing in mind the age of the applicant and his plea, a period of 12 years, let alone 16 years was far too long. He submitted that in accordance with the approach we have indicated that should be taken towards s. 34, a specified period of more than half of the determinate period would in any event have been wrong in the light of ex p Furber .

Conclusion on Marklew

We see force in these submissions and grant leave to appeal. Although the offences were serious and the turning on of the gas taps a particularly aggravating feature, nonetheless, taking into account the age of the applicant, the circumstances of the offences and his guilty plea, we consider that the proper determinate period should have been a period of 10 years; a period of 12 or 16 years (which ever it was) was too long for a person of that age. We approach the fixing of the specified period under s. 34 on the basis of the principles we have outlined. On the facts of this case, we see no reason to depart from a specified period of more than half the determinate period that would have been passed. We therefore substitute for the specified period of 8 years, a specified period of 5 years. To that extent, the appeal is allowed.

Lambert

On 13 February 1997, the applicant Lambert who was then 17 pleaded guilty at Hull Crown Court to 5 counts of arson being reckless as to whether life was endangered. On 22 September 1997, after his eighteenth birthday, he was sentenced by Her Honour Judge Davies to detention for life under the s. 53(2) of the Children and Young Persons Act 1933. She considered the appropriate determinate sentence should be 10 years and she set the specified period under s. 34 at 6 years.

The facts relating to Lambert

The facts relating to Lambert can be briefly stated. In the early hours of 4 October 1996,(1) Lambert, who was 17, set fire to various items of rubbish in the bin shed of an unoccupied end of terrace house, 55 Redmire Close, Hull. He lived at No 122. He used a lighter and toilet tissue to start the fire; a neighbour saw the smoke and alerted the occupant of No 57, the property next door to the fire. She awoke to the strong smell of smoke; the fire brigade was called and the fire extinguished.(2) The same night Lambert set fire to some discarded carpet in the bin shed of another unoccupied house, No 88, in the same street. He started the fire in the same way. A neighbour awoke the occupant of the next door property, No 90. The fire brigade evacuated the occupant and put out the fire. The damage was quite extensive; the occupant was very frightened. Prior to the fire the applicant had been seen looking at No 88 several times and after the fire he was seen to be playing with the debris.In the early hours of the following day, 5 October 1996, the applicant set fire to a "wheelie bin" placed near the bin sheds of adjoining houses in another street in Hull; the occupant of one of the adjoining flats was awakened by the fire brigade with his house full of smoke; he was suffering from asthma and coughing uncontrollably; he had to receive oxygen at the scene. The fire had melted the guttering on his flat.Three days later, on the evening of 8 October 1996, the applicant set fire to the bin shed of 121 Redmire Close, the house next door to the house in which he lived. This was in the same street as he had set fires on 4 October. 121 was unoccupied. He had again used toilet paper and a lighter to set the rubbish alight. He watched the fire, getting more excited when the fire brigade arrived and jumping up and down. The smoke from the fire filled the adjoining house and it had to be evacuated; one of the children in the house was asthmatic. The fire was extinguished.The last fire was one the applicant had started at an unoccupied flat at 10 Helvelyn Close Hull during the early hours of a day between the end of September and mid October 1996. A bed was set on fire; the fire brigade attended and put out the fire. Damage was confined to the flat but it was in the middle of a row of properties.Each of the bin sheds housed gas meters and there was therefore a risk of an explosion; each of the terraced houses in Redmire Close shared a common roof space which would have enabled any fire that took hold to spread. The damage to the properties was estimated at £15,000.The applicant was arrested on 19 October 1996. He admitted starting the five fires and he accepted that he realised that life might be endangered, though he said he did not wish to harm anyone; he had appreciated the presence of gas meters in the sheds and the consequent risk of an explosion; he had wanted to see an explosion as he had seen one on television. There was evidence that many in the neighbourhood were very worried about the fires.The applicant came from an unsettled and deprived background; he had spent time at residential schools. Although he had no previous convictions, he had pleaded guilty to 2 offences of arson committed in Edinburgh in April and June 1996; the fires were at the home of a friend, the first when the friend was living in a block of flats and the second when the friend was living at a house; the damage caused was estimated to be £10,000. When he was sentenced by Judge Davies, she was told he was awaiting sentence for the offences committed in Edinburgh. We were told that no further sentence had been passed by the courts in Scotland.

The sentence passed on Lambert

There were seven psychiatric reports before the Judge; from these it was clear that the applicant was not suffering from a mental illness under the Mental Health Act 1983, but was assessed as suffering from a psychopathic disorder which was not treatable. There was considered to be a significant risk of re-offending and continued fire setting. The view was expressed that at sometime in the future he might develop a maturity and become treatable.The Judge carried out a very careful sentencing exercise; she gave detailed consideration to each of the material matters and spelt them out clearly. It was a model exercise. She concluded that she could not deal with the applicant by a Hospital Order under the Mental Health Act 1983. She therefore concluded that because of the seriousness of the offences, the likelihood of the commission of further offences and the serious risk of harm to others, a period of detention for life was the only appropriate penalty. She said that it was impossible to conclude when the applicant would cease to be a danger to the public. She was plainly right in that view.Mr Thackray who has appeared on behalf of the applicant, although accepting as he did before the Judge that a period of detention for life was appropriate, has submitted that the period of 10 years as the period for which a determinate period would have been passed was too long. Mr Thackray, whilst accepting that the Judge's attention was not drawn to the decision in ex p Furber , also submitted that the specified period under s. 34 should not have been more than half.

Conclusion on Lambert

We do not agree. Taking into account the age of the applicant, the circumstances of the offences and his guilty plea, we consider that 10 years was at the low end of the period of a determinate sentence which could have been passed. These were very serious offences and considerable risk to the lives of others was caused. Having regard to the appropriate determinate period and the other particular circumstances of the case, we see no reason to interfere with the period of 6 years specified by the Judge under s. 34. We therefore refuse leave to appeal.We must make it clear in respect of both Marklew and Lambert that our decision does not mean that at the expiration of 5 and 6 years' respectively, they will be released; it only means that the parole board cannot consider the release of either young man until that period has expired. It will be for consideration at that time whether either remains a danger to the public. Depending on what view is taken at that time, either may be detained for a further indeterminate period.

Cited in 1 later judgment