REGINA - v - 2000/05907/Y4 v MATTHEW BARRY JAMES OFFEN [2000] EWCA Crim 96

IN THE COURT OF APPEAL

CRIMINAL DIVISION

[2000] EWCA Crim 96

Case No 2000/05907/Y4, 2000/02939/Z5, 2000/03507/W2, 2000/0267/Z1, 2000/01871/S2, 2000/01913/R2

Venue Royal Courts of Justice, The Strand, London WC2

Between

REGINA - v - 2000/05907/Y4

MATTHEW BARRY JAMES OFFEN

2000/02939/Z5

PETER WILSON McGILLIARD

2000/03507/W2

DARREN McKEOWN

2000/0267/Z1

KRISTOVA OKWUEGBUNAM

2000/01871/S2

STEPHEN PETER S

2000/01913/R2

Before

Lord Chief Justice of England

Lord Woolf of Barnes

Mrs Justice Steel

Mr Justice Richards

200/05907/Y4: MR EDWARD FITZGERALD QC and MISS PHILLIPPA KAUFMANN appeared on behalf of THE APPELLANT OFFEN

2000/02939/Z5: MR JOEL BENNATHAN appeared on behalf of THE APPLICANT McGILLIARD

MR DAVID PERRY appeared on behalf of THE CROWN

2000/03507/W2: MR CHRISTOPHER JOHN KNOX appeared on behalf of THE APPELLANT McKEOWN

MR DAVID PERRY appeared on behalf of THE CROWN

2000/04827/Z1: MR EDWARD FITZGERALD QC and MR DANIEL FRIEDMAN appeared on behalf of THE APPLICANT OKWUEGBUNAM

2000/01871/S2: MR DAVID PERRY appeared on behalf of THE CROWN

2000/01913/R2: MR DAVID PERRY appeared on behalf of THE ATTORNEY GENERAL

MR ALASTAIR EDIE appeared on behalf of THE OFFENDER STEPHEN PETER S

Date 9 November 2000

THE LORD CHIEF JUSTICE:

[2]This judgment relates to five appeals. In each case where leave is required to appeal against sentence, we give leave. The five appeals all involve section 2 of the Crime (Sentences) Act 1997 'the 1997 Act'. (This is now section 109 Powers of the Criminal Courts (Sentencing) Act 2000. In this judgment we will refer to section 2 in the 1997 Act.) The application of section 2 has already given rise to a number of decisions by this court. They illustrate the problems which can arise in practice in applying statutory provisions which require the courts to impose an automatic life sentence on certain offenders.

[3]The policy of Parliament for establishing the automatic life sentences emerges clearly from the then Government's White Paper, Protecting the Public, the Government's Strategy on Crime in England and Wales (1996). In (Cm 3190) paragraph 10.11 the White Paper states:

"Too often in the past, those who had shown a propensity to commit serious, violent or sex offences have served their sentences and been released only to offend again. In many such cases the danger of releasing the offender has been plain for all to see - but nothing could be done, because once the offender has completed the sentence imposed, he or she has to be released. Too often, victims have paid the price when the offender has repeated the same offences. The Government is determined that the public should receive proper protection from persistent violent or sex offenders. That means requiring the courts to impose an automatic indeterminate sentence, and releasing the offender if and only if it is safe to do so."

[4]In R v Buckland

[2000] 1 WLR 1262

Lord Bingham of Cornhill CJ described the rationale of section 2 in these terms:

"The section is founded on an assumption that those who have been convicted of two qualifying serious offences present such a serious and continuing danger to the safety of the public that they should be liable to indefinite incarceration and, if released should be liable indefinitely to recall to prison. In any case where on all the evidence it appears that such a danger does or may exist, it is hard to see how the Court can consider itself justified in not imposing the statutory penalty, even if exceptional circumstances are found to exist. But if exceptional circumstances are found, and the evidence suggests that an offender does not present a serious and continuing danger to the safety of the public, the Court may be justified in imposing a lesser penalty."

[5]The reason why we have heard these appeals together is because in each case it is contended that either the interpretation of section 2 of the 1997 Act is affected by section 3 of the Human Rights Act 1998 ('the 1998 Act'), or that section 2 is incompatible with a Convention right so that the appellants are entitled to a declaration of incompatibility. The impact of the 1998 Act on the interpretation of legislation arises under section 3 of the Act, which provides:

"3(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."

[6]The Legislation

[7]Section 2 of the 1997 Act, so far as relevant, is in the following terms:

"(1)This section applies where -- (a)a person is convicted of a serious offence committed after the commencement of this section; and (b)at the time when that offence was committed, he was 18 or over and had been convicted in any part of the United Kingdom of another serious offence. (2)The court shall impose a life sentence, that is to say -- (a)where the person is 21 or over, a sentence of imprisonment for life; (b)where he is under 21, a sentence of custody for life under section 8(2) of the Criminal Justice Act 1982 ('the 1982 Act'), unless the court is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so. [emphasis added] (3)Where the court does not impose a life sentence, it shall state in open court that it is of that opinion and what the exceptional circumstances are. (4)An offence the sentence for which is imposed under subsection (2) above shall not be regarded as an offence the sentence for which is fixed by law. (5)An offence committed in England and Wales is a serious offence for the purposes of this section if it is any of the following, namely -- (a)an attempt to commit murder, a conspiracy to commit murder or an incitement to murder; (b)an offence under section 4 of the Offences Against the Person Act 1861 (soliciting murder); (c)manslaughter; (d)an offence under section 18 of the Offences Against the Person Act 1861 (wounding, or causing grievous bodily harm, with intent); (e)rape or an attempt to commit rape; (f)an offence under section 5 of the Sexual Offences Act 1956 (intercourse with a girl under 13); (g)an offence under section 16 (possession of a firearm with intent to injure), section 17 (use of a firearm to resist arrest) or section 18 (carrying a firearm with criminal intent) of the Firearms Act 1968; and (h)robbery where, at some time during the commission of the offence, the offender had in his possession a firearm or imitation firearm within the meaning of that Act."

[8]The following features of the section will be noted: (i)It refers to two offences having been committed by the offender. (ii)It is only the second offence ('the trigger offence') which has to have been committed after the commencement of the section. The earlier offence may have been committed at any time. (iii)When the second offence is committed the offender is required to be over `18 but there is no age requirement in relation to the first offence. (iv)The proviso of "exceptional circumstances" applies to both offences. The "exceptional circumstances" can relate either to the offences or to the offender but what constitutes exceptional circumstances is not otherwise defined by the section. (v)all offences identified as serious offences are offences for which life imprisonment could be imposed quite apart from section 2.

[9]The Facts of the Different Appeals

[10]The relevant circumstances of each appeal can be shortly summarised as follows:

[11]MATTHEW BARRY JAMES OFFEN

[12]On 28 May 1999 the appellant Matthew Offen, now 35 years of age, pleaded guilty at Lewes Crown Court to an offence of robbery involving the use of an imitation firearm, committed on 26 January 1999. On 19 January 1990 he had been convicted of an offence of robbery committed in September 1989 and of an offence of going equipped for theft for which he was sentenced to thirty months imprisonment.

[13]Mathew Offen's case was therefore one to which section 2 of the 1997 Act applied. Finding there were no exceptional circumstances which justified his not doing so, the judge imposed a term of life imprisonment under section 2. A period of fourteen months was specified under section 28 of the 1997 Act. The judge indicated that had he not been required to pass a life sentence he would have imposed a determinate sentence of three years imprisonment and that he had taken into account the time spent in custody before sentence was passed. On 28 October 1999, in the Court of Appeal Criminal Division, Matthew Offen's appeal against his life sentence was dismissed. The court found that there were no exceptional circumstances in relation to the offence or the offender which would justify the court in not imposing a sentence of life imprisonment.

[14]The appellant's case has now been referred back to the Court of Appeal under section 9(1)(b) of the Criminal Appeal Act 1995.

[15]The facts of the robbery in 1999 are that the appellant, carrying a sports bag, entered a building society in Hove in the early afternoon of 26 January 1999. His appearance was unkempt, and one of the employees formed the impression that he was homeless. He approached the counter, put the sports bag on top of it and took out a plastic bag containing a toy gun. Two cashiers were sitting at the counter and the appellant pointed the gun at one of them who believed it to be a real gun. The appellant told the cashier "give me your money put it in the bag." The cashier asked if he was joking to which the appellant said "no put the money in the bag". To one employee he appeared to be nervous. When it became clear that he was serious the cashier removed from the till a wad of notes, later found to be £960, and placed it in the sports bag. The cashier told the appellant this was all they had. The appellant then said "I'm sorry I have to do this" or words to that effect. He put the plastic bag containing the toy gun into his holdall and left.

[16]A customer who witnessed the robbery told the staff to sound the alarm and a security camera was activated. Two employees stated that they were fearful for their safety. The Senior Branch Assistant stated that she was extremely scared both for herself and other members of staff. The customer was heard to shout "I'm not letting you lot get into trouble" as she left the building society. She followed the appellant and grabbed the holdall from his right hand, and returned it. The appellant continued to walk away.

[17]At about 3pm the same afternoon the appellant spoke to some friends who ran a local store and said that he had robbed a bank. It was noted that he was wearing slippers. When he was told he would have to tell the police, the appellant denied the truth of what he had said, saying he had made it up. The next day his friends telephoned the police and the appellant was arrested. He was interviewed and admitted the offence, and said that a voice in his head had made him do it. He had not taken his medication and had been hearing voices all day.

[18]He told the police that he had bought two toy guns from a toy shop a couple of months before. The second, a water pistol, being a back up in case the first gun did not work. He said he bought the guns in order to hold up building societies. He also explained that he was wearing his slippers at the time of the robbery because his feet were wet. He apologised for his actions and said he would not commit another robbery and that he needed help not prison. In a second interview he told the police he had no need of the money and said he had worn a hat at the time of the robbery to disguise his face and had wrapped the toy gun up in a plastic bag so that the staff would not realise it was a fake. He had hoped to get about £2000 from the robbery and had intended to spend the money on prostitutes.

[19]The facts of the offence of robbery for which the appellant was sentenced in January 1990 were similar. The appellant purchased a toy gun then used it, in its plastic bag, to threaten the staff of a building society next door to the toy shop. He asked for "the money" and was given about £3,000. According to the appellant, he spent only a small amount of the money before giving himself up to the police. He was found to be in possession of a knife which he said he had intended to use to commit an earlier robbery but had changed his mind as he did not like the idea of waving a knife around.

[20]The judge had before him two medical reports and a pre-sentence report. The pre-sentence report referred to a diagnosis of schizophrenia and described the appellant as presenting a medium risk of reoffending and a low risk of harm to the public.

[21]On 28 January 1999, the appellant was assessed by Dr Blackwood who noted that since his imprisonment in 1990, the appellant had been involved with outpatient psychiatric services, attended a day centre each day, and was currently on medication. It was noted that the offence was motivated by 'voices' telling him to rob. These were said to be pseudo hallucinations, not truly psychotic experiences.

[22]On 19 May 1999, Dr T Buck, clinical assistant to Dr Allison, Consultant Psychiatrist at the Mill View Hospital, reported that the appellant suffered mild to moderate depressive illness and at times has pseudo psychiatric voices in his head. His current mental state was fairly stable with no sign of depression or other major mental illness. On the question of risk and disposal, Dr Buck stated his opinion that "Mr Offen is not a danger to society".

[23]In a report dated 15 April, Dr Buck stated that the appellant had told the police that on the day of the robbery he had not taken his medication and Dr Buck had concluded this may have led to an increase in the intensity of his symptoms. No medical disposal was appropriate.

[24]The judge referred to the appellant's mental problems and the fact that he had not taken his medication on the day of the incident. He did not consider whether the appellant's lack of 'dangerousness' amounted to an exceptional circumstance. He considered the appellant's history of mental problems and the diagnosis that he was not suffering from any major mental illness. He also considered the circumstances of the robbery and concluded that there were no exceptional circumstances relating to either the offence or the offender. The judge expressed the view that he thought it unlikely that Parliament had this sort of case in mind when it passed these provisions.

[25]The appellant has now served the specified period under section 28. A psychiatric report dated 6 September 2000 prepared by Dr Sameer P Sarker, Specialist Registrar in Forensic Psychiatry at the Institute of Psychiatry at Maudsley, for consideration by the Parole Board "echoes the opinion expressed by Dr Hadyn Smith five years ago that Mr Offen is not a person who is dangerous to anybody including himself." He suggested, inter alia, regular supervision, support and monitoring. There is nothing before the court which sets out any contrary medical or other opinion.

[26]DARREN McKEOWN

[27]On 11 May 2000, in the Crown Court at Durham, the appellant Darren McKeown, who is aged 27 years, was convicted of an offence of causing grievous bodily harm with intent. On 3 May 1990 the appellant had been sentenced to a period of two years detention in a Young Offenders Institution for an offence of wounding with intent. On 11 May 2000, he was sentenced to life imprisonment pursuant to section 2 of the Crime (Sentences) Act 1997.

[28]Under section 28 of that Act, the judge specified that 18 months imprisonment was the appropriate term and that the determinate term would have been three years imprisonment.

[29]The appellant appeals against his sentence by leave of the single judge.

[30]The facts of the offence arise out of an incident which took place at about midnight on the 9/10 July 1999. Mr Seymour, (aged 42 years), the complainant, and the appellant were acquainted because some weeks earlier there had been a confrontation between them over the purchase of a ring.

[31]On 9 July, Mr Seymour was walking down a street in Consett. He had been drinking. The appellant approached him and demanded an apology. Mr Seymour refused to give one, whereupon the appellant punched him to the ground then kicked him in the face and head.

[32]Mr Seymour sustained fractures of the nose, cheekbone and jawbone. Plating and wiring were required. He also had two black eyes, double vision and headaches.

[33]When arrested and interviewed, the appellant said he pushed Mr Seymour in self-defence.

[34]The facts of the earlier offence are not fully before the court save that when the appellant was 16 years old he committed the offence during New Year 1989/90. He was just 17 years old when sentenced.

[35]The judge had the appellant's antecedent record which disclosed offending which ceased in 1995. There were no offences recorded between 1991 and 1995. There was also a pre-sentence report dated 30 December 1999 which assessed the appellant as presenting a medium risk of reoffending and concluded that his risk to the public was low.

[36]In sentencing the appellant to life imprisonment, the judge who had conducted the trial referred to the life sentence as the only sentence he was allowed to impose by law. He indicated that he was satisfied, on the evidence that he had heard, that the appellant did not go out with violence on his mind or with any intent that violence would be occasioned by him. He described a single kick, clearly to be seen on 'the video' and said that there was no prolonged attack and that the appellant removed himself from the scene, he was not removed.

[37]The judge, having fixed the determinate sentence of three years, went on to say that had the circumstances been different, then no doubt the sentence would have been different also.

[38]The judge took into account that the appellant had accepted responsibility for his actions by pleading guilty to unlawfully causing grievous bodily harm and that the trial had been on the issue of intent.

[39]PETER WILSON McGILLIARD

[40]On 28 May 1999, at the Crown Court at Derby, the appellant Peter McGilliard, who is aged 37 years, having earlier pleaded guilty to an offence of wounding with intent to do grievous bodily harm, was sentenced to life imprisonment pursuant to section 2 of the 1997 Act. On 24 July 1984, he had been sentenced for an offence of culpable homicide to a term of six years imprisonment.

[41]It was conceded by counsel and concluded by the judge that there were no exceptional circumstances which would allow any other sentence to be passed.

[42]The judge specified that the period to be served before the appellant could be considered for parole be three and a half years, less four months and three weeks already served on remand. The notional determinate sentence was fixed at seven years imprisonment.

[43]McGilliard was refused permission to appeal by the single judge.

[44]The facts of the current offence concern an incident on 4 December 1998. The appellant visited a public house in Linton, Derbyshire. He became drunk and abusive, several customers describe him as a nuisance and shouting at people. Shaun Taylor, the complainant, remonstrated with the appellant who swore at him, then he punched the appellant to the floor and kicked him. The appellant left the public house bleeding and making threats that he would return to shoot Mr Taylor. The appellant's injuries were such as to require hospital treatment the next day. Shortly afterwards, the appellant returned and called on Mr Taylor to come outside and fight. He began to throw beer glasses around the bar, someone tried to push him out and Mr Taylor followed him. The appellant then produced a knife (described as a kitchen knife with an 8" blade) and lunged forward and stabbed Mr Taylor in the abdomen. The knife was further described by the judge in sentencing as a fearsome long-bladed kitchen knife of the butchering type.

[45]The wound penetrated the full thickness of the abdominal wall, the underlying bowel was damaged and surgery was required to close the wounds. He remained in hospital for nine days, but by late January 1999 was considered to have made a full recovery.

[46]The appellant was arrested and the knife fell from his jeans. In interview, he denied stabbing anyone but said he tried to protect himself against blows from the complainant and had taken a knife off him.

[47]The facts of the culpable homicide offence for which he was sentenced in 1984 are not before the court. The appellant maintained to Dr Earp, consultant psychiatrist who examined him and reported on 21 March 1999 that he denied that offence. He was aged 17 years and pleaded guilty on the advice of his counsel, which he now believes was a mistake.

[48]The psychiatric report indicated that no medical disposal was appropriate for the current offence. The appellant denied responsibility for the complainant's wound. Dr Earp described a Serious Alcoholic Dependency Syndrome. On the day of the offence Dr Earp was told the appellant had consumed alcohol throughout the day and injected himself with heroin.

[49]In addition to Dr Earp's report, the judge had a pre-sentence report dated 16 April 1999, prepared by Mr Nick Hyde, and the court had the appellant's antecedent record.

[50]The antecedent record disclosed repeated offences of violence and assaults, as well as offences of dishonesty, criminal damage, drunkenness and involvement with controlled drugs. He has served nine custodial sentences, has been fined and his response to probation and community service was assessed as poor.

[51]The pre-sentence report specifically addressed the risk of reoffending which was described as high. The risk being of personal injury which could be serious or fatal. Both Dr Earp and Mr Hyde refer to lack of motivation to achieve change or give up drink.

[52]KRISTOVA OKWUEGBUNAM

[53]On 25 July 2000, in the Central Criminal Court, the appellant Kristova Okwuegbunam, who is 33 years of age, was sentenced to life imprisonment pursuant to section 2 of the 1997 Act for an offence of manslaughter to which he had previously pleaded guilty on change of plea. The period specified pursuant to section 28 as the minimum period to be served by the appellant was two and a half years. An application for leave to appeal against sentence has been referred to the full court by the Registrar.

[54]The deceased was the mother of the appellant's children. Although he did not live with her, he was a frequent visitor to her flat. She was found dead at the flat on 17 January 2000. The basis of the appellant's plea was, first, that he had struck her twice to the head on the evening of 16 January during the course of an argument precipitated by her chastisement of their son. The blows were not of sufficient force to indicate an intention to cause really serious injury. The injuries inflicted were a black eye, a cut below the eyebrow, a fractured nose and associated bruising. In addition, the blows caused a subdural haemorrhage which was the cause of death the following day. On the following morning, the appellant insisted that the deceased take a cold bath. He said in interview that this was because she had been neglecting herself as a result of her depressive condition and her body odour was annoying him. The subdural haemorrhage was activated while the deceased was in the bathroom and led to death. In interview, the appellant said that the deceased had been reluctant to get into the bath and he had pushed her down, but not so that her head was under water. She then slipped two or three times when trying to get out of the bath. He realised that something was wrong and pulled her out. Although the prosecution opened the case on the basis that they did not accept the appellant's account of what happened in the bathroom, the prosecution did accept that there was no evidence that he struck the deceased at that stage.

[55]In sentencing the appellant on the basis upon which he had pleaded guilty, the judge observed that this was nonetheless a serious case in which a human life had been lost as a result of violent conduct by the appellant against a slightly built woman in her own home, that violence being followed by his forcing her to take a cold bath, whereupon she died. There was a strong element of bullying and humiliation in what the appellant did. It was not the kind of case where a blow struck during a wholly unexpected confrontation with a stranger had had unforeseen and tragic consequences. It had also to be seen against the background of the appellant's previous offending.

[56]The appellant had a conviction for rape in 1990 for which he received a sentence of five years' imprisonment following a plea of guilty. It was that offence which made the case subject to section 2 of the 1997 Act. The prosecution case was that the appellant had on that occasion abducted a 13 year old girl by threatening to harm her with a large piece of broken glass. He had taken her to his home and raped her there. The appellant has always maintained, and it was advanced on his behalf in mitigation at the time, that he knew the victim and that neither glass nor any other weapon was used. In addition to the sentence for rape, the appellant received on that occasion a consecutive sentence of two years for assault occasioning actual bodily harm. That assault was committed on the deceased, the appellant striking her in the face and causing her injury. Although dealt with at the same time as the rape, it was an unrelated incident.

[57]Prior to 1990, the appellant had convictions for 3 offences of dishonesty, 1 of threatening behaviour and 1 of common assault. Since the offences for which he was dealt with in 1990, he has been convicted of 1 offence of criminal damage in 1996, for which he was given a conditional discharge, and 2 offences of dishonesty in 1998 and 1999, for which he was fined.

[58]There was no report of any significance before the sentencing judge, the appellant having made clear to the probation service that he did not wish to participate in the preparation of a pre-sentence report.

[59]Detailed submissions were made to the sentencing judge as to the approach to be adopted under section 2 of the 1997 Act, including questions of compatibility with the Convention. The judge gave a detailed ruling, in which he came to the conclusion that there were no exceptional circumstances in the case and it was therefore unnecessary for him to go on to consider the question of danger. A life sentence had to be imposed under section 2. Had the judge been imposing a determinate sentence, it would have been one of six years. The specified period of two and a half years made allowance for the time spent by the appellant in custody. In reaching his view on the notional determinate sentence, the judge took into account, as is apparent from earlier passages in his sentencing remarks, the plea of guilty, the fact that it had been very difficult for the appellant to accept that he had caused the death of the deceased (a subdural haemorrhage leading to death in this way being extremely rare), the fact that the appellant had given himself up to the police on the day of the death, and the apparently frail mental health of the deceased.

[60]The application for leave to appeal against sentence is based not on any challenge to the appropriateness of the six year notional determinate sentence, but on the submission that if section 2 is read in such a way as to comply with the Convention, this case should be regarded as one where exceptional circumstances apply and a life sentence is neither necessary nor appropriate.

[61]STEPHEN PETER S

[62]The appellant Stephen S, who is 41 years of age, was convicted in the Central Criminal Court on 2 March 2000 on five counts of indecent assault on a female (counts 1, 3, 5, 7 and 8 on the indictment), five of attempted rape (counts 2, 4, 9, 10 and 11), five of rape (counts 6, and 12 to 15), one of buggery (count 16) and one of assault occasioning actual bodily harm (count 17). The verdicts on counts 1-7 and 12-17 were unanimous; those on counts 8-11 were by a majority. He was sentenced to a total term of 12 years imprisonment, the sentences on the individual counts being concurrent and ranging from 12 months imprisonment on count 17 to 12 years imprisonment on counts 6, 14, 15 and 16.

[63]The court has before it a renewed application by Stephen S for leave to appeal against conviction following refusal by the single judge, an application by him for leave to appeal against sentence which has been referred to the full court by the single judge, and an application by the Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer the sentence to the court as an unduly lenient sentence.

[64]The victims of the offences were the offender's daughters, C (born on 28 August 1984 to his then wife TS) and L (born 15 December 1988 to his then wife KS). Counts 1-7 and 17 related to L and counts 8-16 to C. The matters came to light following a physical assault against L on 26 January 1999 which was the subject of count 17. On that occasion, the offender became angry with L when he found that an alarm clock he had recently bought her had been broken. He pulled her off her bed, threw her against a wardrobe, punched her in the stomach and hit her head against the bed. A little later, during breakfast, he punched her in the eye, pushed her against the wall and struck her back. The violence was witnessed in part by her mother who then sought protection for herself and L and subsequently moved into a refuge. When arrested in relation to the physical assault, the offender denied any violence towards L. While L was at the refuge, however, she revealed a history of sexual abuse by the offender which resulted in his re-arrest. Shortly afterwards, C revealed that he had abused her too from an early age.

[65]The offender married T in 1983. After the birth of C, he began a relationship with K. They married in March 1989 after L had been born and the offender and T had divorced. The offender was granted custody of C. Three further children were born to the offender and K in 1993, 1995 and 1997. The family lived first at Brentford, then in Carshalton and latterly in Hamworth.

[66]The substance of the allegations made by the daughters was as follows. The offences against C began with indecent assaults when she was aged 5 or 6, and moved to attempted rape and rape when she was aged between about 8 and 12. Sexual contact was very frequent and involved digital penetration, oral sex against her and by her, and full sexual intercourse without contraception. On one occasion, he persuaded L to commit an indecent assault on C. C was very frightened of him and witnessed violence from him against her step-mother, as well as being frequently on the receiving end herself. He said that if she told anyone he would shoot her, all the family and then himself. He also said that the conduct was normal and an acceptable family practice. She knew that it was not normal but was too frightened of him to say anything. He said he would continue doing it even after she had a boyfriend and was married. In the months before his arrest, he had begun inserting his finger in her anus, and on at least one occasion he inserted his penis about half way, saying that when she was older he could insert it all the way. Medical examination of C confirmed the existence of two hymenal tears indicative of penetration of her vagina by an object, but not capable of showing what that object was or when penetration occurred. It was not established that full penile penetration had taken place. There were no injuries indicative of anal penetration, but it was possible for such penetration to have occurred without leaving signs of injury.

[67]The offences against L started when she was five years old. The offender came to her during the night naked and took her pyjamas off, saying he wanted a cuddle. He touched her private parts and put her hand on his penis. This first happened when her mother was in hospital giving birth to one of her brothers in August 1995. Thereafter there were numerous assaults when her mother was out of the house at work. The offender would lie on top of her, both of them naked, trying to penetrate her vagina. He said that until her "hole" was a bit bigger it would carry on like that and that she was better at sex than her mother. When she was nine years old the abuse progressed to rape as well as indecent assault. It continued until just before she and her mother left home in January 1999. She had also seen the offender commit offences with C when she had been looking into the room, and there had been one occasion when he had got her to touch C's vagina. The offender made various threats as to what would happen to her if she told anyone about his conduct. He would generally be nice to her when he had sex with her, but would beat her and other members of the family at other times.

[68]At trial, evidence for the prosecution was given by both daughters and their mothers. There was also medical evidence. The appellant gave evidence in his own defence, denying the offences and saying that the girls and one or both of their mothers had conspired to make false charges against him.

[69]The offender has a large number of previous convictions, mainly for driving offences but also including offences of dishonesty, the supply of drugs, criminal damage, threatening behaviour, possession of an offensive weapon and violence. The offences of violence include common assault, assault on the police, assault occasioning actual bodily harm, causing grievous bodily harm and causing grievous bodily harm with intent. Most important is an offence of causing grievous bodily harm with intent, for which he was sentenced in November 1993 initially to 240 hours of community service. On an Attorney General's reference, a sentence of 18 months imprisonment was substituted: see Attorney General's Reference No 30 of 1993

(1995) 16 Cr App R(S) 318

. That offence involved an unprovoked attack with a pool cue in a public house, which left the victim with a permanent scar to his forehead. The Court of Appeal indicated that a sentence of the order of three years would have been appropriate at first instance.

[70]The grounds of appeal against conviction have been settled by the offender himself. The original grounds have been supplemented by additional material supplied to this court after refusal of leave by the single judge. In summary, it is contended that the convictions are unsafe because offences are alleged to have been committed on dates or at times or at places when or where they could not have been committed. There are inconsistencies between the verdicts on the various counts, or between the judge's directions on various counts. The convictions are also said to have been unsafe because the jury was told that he had been in prison before. Matters are raised as to the credibility of witnesses, as to the unsatisfactory nature of the medical evidence and as to other aspects of the evidence at trial. It is said that the summing-up was confused and unclear. Complaints are made about the conduct of the offender's legal team, both in relation to witnesses called and questions asked and as regards other matters. In view of those complaints, the comments of the offender's counsel were obtained after a waiver of privilege. We have taken those comments into account in reaching our decision.

[71]After careful consideration of all the matters raised by the offender, we have reached the clear conclusion that there is no arguable case as regards appeal against conviction. We adopt the reasons given by the single judge in refusing leave: "The grounds relating to dates and allegedly inconsistent verdicts are not made out; inevitably after such a lapse of time dates would be uncertain and the jury was entitled to convict as they did. The learned judge dealt properly with the evidence of bad character that had been introduced. The verdicts were not inconsistent with the medical evidence, which was placed before the jury in a form as favourable to you as could have been arranged. There is nothing in the point you make about the cross-examination or alleged failure to cross-examine. As to the summing up, that was at times lacking in clarity, but the agreed summary placed before the jury at the end sufficiently remedied any deficiencies. The convictions are not unsafe".

[72]Nothing in the additional material supplied to the court by the offender since the refusal of leave by the single judge affects the validity of those reasons or raises new points of substance. Accordingly, the renewed application for leave to appeal against conviction is refused.

[73]We turn to consider issues that arise in relation to sentence. In passing sentence, the judge referred to the fact that there had been no plea of guilty and the girls had had to give evidence and relive what had happened to them. There had been a gross breach of trust. The offences occurred over a long period and the offender had set out to corrupt the girls. The offences and their effect on the girls had grown more serious as the girls grew older. The offender did not have a good character. It was in those circumstances that the judge was passing an overall sentence of 12 years.

[74]After the judge had passed sentence, his attention was drawn by counsel to section 2 of the 1997 Act and to the existence of the section 18 offence in 1993 which, in conjunction with the recent offences, engaged the provisions of that section. The judge ruled that an automatic life sentence need not be passed because there were exceptional circumstances, namely that the offender had been found guilty on this occasion of offences falling into a totally different category from the offence in 1993. Had the sexual offences been a repetition of earlier sexual offences, then a life sentence would have followed. Because they were entirely different from the earlier offence, it was not necessary to pass a life sentence.

[75]In his reference to this court, for which we have given leave, the Attorney General submits that the sentence passed was unduly lenient, in that the judge ought to have imposed a life sentence under section 2 of the 1997 Act. The judge erred in principle in forming the opinion that the difference in type between the relevant serious offences amounted to exceptional circumstances within the meaning of section 2(2) of the Act: see R v Kelly (Edward )

[2000] QB 198

,209.

[76]Mr Edie, for the offender, resists the submissions made on behalf of the Attorney General, contending that the judge was entitled to pass a determinate sentence in the circumstances of this case. He contends further that the sentence of 12 years imprisonment was itself manifestly excessive.

[77]The Law

[78]The leading authority as to the interpretation of section 2 prior to the coming into force of the 1998 Act is the decision of this court in R v Kelly . In that case the then Chief Justice, Lord Bingham, gave a construction of 'exceptional' which has been followed in later cases. He said:

"We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered."

[79]No criticism of 'exceptional' was made by any of the counsel appearing in the appeals, and we consider that the issues which arise on the appeals do not cast any reflection upon its appropriateness now that the European Convention on Human Rights is part of our law. We therefore gratefully adopt it.

Lord Bingham then went on to explain that:

"To relieve the Court of its duty to impose a life sentence under section 2(2), however, circumstances must not only be exceptional but such as, in the opinion of the Court, justify it not imposing a life sentence, and in forming that opinion the Court must have regard to the purpose of Parliament in enacting the section as derived from the Act itself and the White Paper . . ."

[81]Lord Bingham did not apply his reasoning, that it is necessary to have regard to the purposes of Parliament when considering whether there are exceptional circumstances. He applied it to the subsequent question of whether, assuming there are exceptional circumstances, they justify not imposing a life sentence. This has in some of the cases where section 2 has been applied accentuated the difficulties created by the section. We draw attention to this, since when deciding whether a situation is exceptional, we regard it as being of the greatest importance to have in mind the policy already identified which reflects the intention of Parliament. That is the rationale spelt out by Lord Bingham in the case of Buckland .

[82]In Kelly , Lord Bingham, having identified the approach to section 2, went on to consider features contended in that case to establish exceptional circumstances. The first was the youth of the Appellant when committing the first "serious offence". That was not regarded as being unusual in that case, because the offender was then already very experienced and, as Lord Bingham said, "the unhappy fact is that many very serious crimes are committed by very youthful offenders". It was also stated that the time which intervened between the offences could also not be regarded as exceptional. Attention was drawn to the fact that Parliament had not required the two qualifying offences to be committed within a specified period. Again, it was suggested that the fact that the "serious offences" were of different kinds was not exceptional because "the section lumped all these offences together and there is nothing to suggest that the imposition of a life sentence should depend on whether the offender has repeated the same 'serious offence' or committed another. It is scarcely unusual for a defendant convicted of robbery involving the use of firearms on one occasion to be convicted of causing grievous bodily harm with intent on another."

[83]Finally, Lord Bingham stated that the court could not "regard the appellant as a man who, on the evidence available when he was sentenced, presented no continuing threat or danger to the public." This last statement of Lord Bingham is important, because, it seems to us for reasons we will explain later, to go to the heart of the issue with which the court in that case was faced.

[84]Later in his judgment, Lord Bingham made two further points to which we should draw attention. First of all, he made it clear that that was a case which apart from section 2 would not have resulted in a life sentence. The other point was in relation to the argument which was advanced relying on articles 3 and 5 of the European Convention. Lord Bingham declined to address that argument because at that time the Convention could only be used as an aid to construction when an ambiguity existed and the court thought there was no ambiguity as to the interpretation of section 2. However, Lord Bingham added:

"in any event, as already pointed out, we do not find it possible to regard the appellant as a man who is shown not to represent a continuing danger to the public."

[85]The approach adopted as to the application of section 2 in Kelly has naturally been followed in the subsequent cases. It has however, been subject to academic criticism as an unduly narrow approach to "exceptional circumstances". In view of that criticism, it is convenient to refer next to the decision of Buckland , from which we have already made a citation. The facts of Buckland were very similar to the facts in the appeal of Offen which is before us. Lord Bingham described it as "an almost farcical caricature of a professional bank hold-up. Although obviously distressing to the staff of the bank". In deciding whether or not the court was required to impose a life sentence, the court, as Lord Bingham made clear, had looked at various reports and then come to a judgment that: (i)these were exceptional circumstances and (ii)these circumstances justified not imposing a life sentence.

[86]Lord Bingham stated that "on all the evidence, it is safe to conclude that the appellant does not present a serious and continuing danger to the public such as could justify the imposition of a life sentence".

[87]Buckland was regarded by Mr Perry, who appeared on behalf of the Crown and for whose help we are most grateful, as representing a more flexible approach than had been adopted in the earlier authorities, and he accepted that it reflected the approach that should be adopted in the future if his submissions were accepted by this court. He also conceded that if the decision in Buckland had been available when Offen came before the Court of Appeal on the original appeal against sentence, the Court of Appeal would probably have taken a different view from that which they did.

[88]Before leaving Buckland , and turning to the decision in Offen , we should point out that we regard it as a striking feature of the reasoning in Buckland , as in the case of Kelly , that the court regarded the rationale of the section as being relevant when the court had already come to its conclusion that there are exceptional circumstances and not as to whether the exceptional circumstances exist. We would suggest that quite apart from the impact of the Human Rights Act, the rationale of the section should be highly relevant in deciding whether or not exceptional circumstances exist. The question of whether circumstances are appropriately regarded as exceptional must surely be influenced by the context in which the question is being asked. The policy and intention of Parliament was to protect the public against a person who had committed two serious offences. It therefore can be assumed the section was not intended to apply to someone in relation to whom it was established there would be no need for protection in the future. In other words, if the facts showed the statutory assumption was misplaced, then this, in the statutory context was not the normal situation and in consequence, for the purposes of the section, the position was exceptional. The time that elapsed between the two serious offences could, but would not necessarily reflect, on whether, after the second serious offence was committed, there was any danger against which the public would need protection. The same is true of two differing offences, and the age of the offender. These are all circumstances which could give rise to the conclusion that what could be normal and not exceptional in a different context was exceptional in this context. If this approach is not adopted, then in the case of the serious offences listed in the section, the gravity of which can vary very greatly, the approach to exceptional circumstances could be unduly restrictive. This is illustrated by the extensive range of situations which can constitute the offence of manslaughter.

[89]Turning to the decision of this court on the initial appeal by Offen, we find this very point being made by the court as a justification for saying that there are no exceptional circumstances. Judge J, when giving the judgment of the court, indicated that robberies vary greatly in their seriousness. He then went on to say that it is clear that a robbery cannot be regarded as exceptional merely because it is at the lower end of the scale of gravity. He then turned to Offen himself and considered his characteristics without considering whether Offen would give rise to any danger in the future. We suggest that, if the policy behind the section had been taken into account, the approach would have been different.

[90]In a case which again has a resemblance to the case of Offen, R v Williams [2000] Crim LR 597, the court were prepared in the light of Buckland to regard the circumstances of the offence as being exceptional, however, having considered the pre-sentence report and the 47 previous convictions of the appellant, the court decided that the appellant did represent a serious danger to the safety of the public and in those circumstances a life sentence under section 2 was justified.

[91]The other case to which it is necessary to refer before turning to the 1998 Act, is the case of R v Turner (The Times, 4 April 2000). That was a case where the appellant was convicted of an offence under section 18 of the Offences Against the Person Act 1868 as a consequence of his being involved in a brawl during the course of which he lost his temper and continued to strike the victim after he was on the ground. This was a serious offence for the purposes of section 2. Unfortunately, 22 years before, the offender had also been convicted of manslaughter and sentenced to three years imprisonment. During the intervening period, he had only been convicted of one motoring offence. This court came to the conclusion that section 2 has the consequence that a judge can be compelled to pass a sentence of life imprisonment notwithstanding the fact that it offends his sense of justice. The court therefore loyally gave effect to the earlier authorities and decided that they had no alternative but to uphold the sentence of life imprisonment under section 2. This decision underlines why, notwithstanding the more flexible approach of this court in Buckland endorsed by Mr Perry, each of the appellants strongly relies upon the 1998 Act.

[92]

The Human Rights Act 1998

[93]The appellants contend that as previously applied, section 2 of the 1997 Act is incompatible with Articles 3, 5, 7 and 8 of the Convention.

[94]Article 7

[95]As the argument as to Article 7 is discrete, it is convenient to start with that Article. It is Article 7.1 which is relevant. It provides:

"No one shall be held guilty of any criminal offence on account of any actual omission which did not constitute a criminal offence under national or international law at the time it was committed. Nor shall a heavier penalty be imposed than one that was applicable at the time the criminal offence was committed."

[96]The arguments advanced by Mr Fitzgerald QC on behalf of Offen and Okwuegbunam and advanced by Mr Bennathan on behalf of McGilliard differed. The difference, however, is as to whether it is possible to remedy the breach of Article 7 which they allege section 2 of the 1997 Act involves by a process of interpretation relying on section 3 of the 1998 Act, or whether it is necessary for the court to make a declaration of incompatibility under section 4 of the 1998 Act. Fortunately, it is not necessary to resolve this issue, because we do not consider that section 2 involves a contravention of Article 7.

[97]Mr Fitzgerald advances the argument, which is adopted by all appellants, that there is a contravention. He submits that the argument has two aspects. Both involve changing the consequences of a conviction of the first serious offence after the date of the offence and after the sentence for which it was imposed. It is submitted that after a punishment for the first serious offence had been imposed, the subsequent coming into force of section 2 increased the penalty for the initial offence since the offender then became liable, if he committed a further serious offence, to be automatically sentenced to life imprisonment. It is also submitted that section 2 itself increased the penalty for the first serious offence since on conviction of the second serious offence a life sentence would be imposed, in reality, in respect of both offences.

[98]Mr Fitzgerald's argument was well illustrated by the practice in Association Football of sending off a player who is shown two yellow cards. If the rule which brings this about was to be imposed after one yellow card had been shown this would give greater significance to the first yellow card than was the case when it was shown. It could adversely effect a player since if a player knew he would be sent off if he had two yellow cards, he would make greater efforts to avoid being shown even the first yellow card.

[99]This attractive argument depends upon treating the life sentence as being imposed at least in part for both offences. This is not, however, the manner in which, in our judgment, section 2 works. Section 2 imposes the penalty of the automatic life sentence for the second offence above. The imposition of the automatic life sentence is, however, subject to certain conditions. Those are that the offender was 18 or over and that he had been previously convicted of another serious offence. The language of section 2(1) makes this clear. The sentence is not being imposed in relation to the earlier offence. The position is similar to that considered by this court in R v Taylor

[1996] 2 Cr App R 64

and by the European Commission of Human Rights in Taylor v UK [1998] EHRLR 90 which arose out of the changes in making confiscation orders introduced by the Drug Trafficking Offences Act 1986.

[100]Although the 1986 Act allowed the court to make a confiscation order in respect of "benefits" which accrued before the 1986 Act came into force, the offence which triggered the confiscation order was committed after the 1986 Act came into force. That decision is not inconsistent with Welch v United Kingdom

(1995) 20 EHRR 247

para. 28. The distinction between Taylor and Welch is that in Welch the confiscation order had been made in relation to a criminal offence committed before the relevant legislation, the Drug Trafficking Offences Act 1986, came into force. In Taylor the triggering offence was committed after the Act came into force. Accordingly in Taylor it was in order, as a matter of domestic law, to make a confiscation order to recover benefits from drug trafficking which accrued to Taylor before the Act came into force. It was the date of the offence which was critical. It was when and because he committed the trigger offence that he became liable to have his earlier benefits from drug trafficking confiscated. Although Taylor was decided by this court under domestic law, Article 7 was examined and the reasoning was endorsed by the European Commission, which found Taylor's application manifestly ill-founded. Mr Bennathan, on behalf of Mr McGilliard, and Mr Edie, in his submissions on behalf of S, contend that Taylor is distinguishable from the position here. Clearly, the statutory provisions differ but the reasoning is the same. Mr Edie also refers to the recent decision of the Inner House in Scotland in McIntosh v HM Advocate (13 October 2000). However, the issue in that case turned on Article 6(2) and not Article 7 and we do not find it assists here.

[101]The serious offences are, as we have already pointed out, all sentences in relation to which the court can pass a life sentence quite apart from section 2. Before imposing a discretionary life sentence, the court would pay the greatest regard to the previous record of the offender. The fact that the previous record influenced the court into imposing a life sentence would not mean that the offender was being sentenced or having his sentence increased for the earlier offences. Here, the first offence and the penalty imposed for it remain the same after the coming into force of section 2 of the 1997 Act; it is the penalty for the trigger offence which section 2 changes.

[102]Articles 3 and 5

[103]The relevant provisions of Article 3 and Article 5 are as follows:

"Article 3: Prohibition of torture No one shall be subjected to torture or to inhuman or degrading treatment or punishment. Article 5: Right to Liberty and Security 1.Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a)the lawful detention of a person after conviction by a competent court. 4.Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

[104]In approaching these articles, it is important to recognise that the 1998 Act is a constitutional instrument introducing into domestic law the relevant articles of the Convention. The consequence of section 3 is that legislation which affects human rights is required to be construed in a manner which conforms with the Convention wherever this is possible. In support of his contention that there is no need for a change in the construction of section 2 of the 1997 Act, Mr Perry relies upon the more flexible approach adopted to section 2 in the more recent authorities, and in Buckland in particular. In addition, he refers to the consequences of the imposition of an automatic life sentence. He reminds the court of the present practice as to the setting of a tariff and the independent review by the Parole Board which follows the expiry of the tariff. If the Parole Board are of the view that a prisoner should be released, the Home Secretary must release him. Although this may not have been the position in the past, the present arrangements for the review of those subject to an automatic or discretionary life sentence, he submits, are now Convention compliant. The aim of section 2 is not to increase the time offenders spend in prison as a punishment for the offence they have committed, but to provide for an assessment to be made to see whether the offender poses a real risk to the public, in which event his release is deferred. He argues that this regime is not one which contravenes either Article 3 or Article 5. He submits that there is no question of the automatic life sentence amounting to torture or inhuman or degrading treatment or punishment which would contravene Article 3.

[105]As to Article 5, Mr Perry accepts that the overall purpose of the Article is to ensure that no one is deprived of his liberty in an "arbitrary fashion" ( Quinn v France

(1996) 21 EHRR 529

para. 42.) He relies in particular on Weeks v United Kingdom

(1988) 10 EHRR 293

. The significance of that decision was that the court considered the appellant's renewed detention after being released on licence was lawful and that the rehabilitation of offenders was a legitimate aim. (This country fell foul of Article 5(4) because of the absence at that time of any procedure by which the lawfulness of the offender's detention could be determined by a properly constituted independent board. That defect has since been remedied.)

[106]Not surprisingly, Mr Fitzgerald takes a very different view of the relationship between section 2 and Articles 3 and 5. He stresses that life imprisonment is the most serious punishment that the courts in this jurisdiction can impose. It means that although a prisoner may be released, he still remains liable to be recalled. That liability is a permanent one. In addition, he contrasts the position of a life sentence prisoner with that of a prisoner sentenced to a determinate sentence. When a determinate sentence has been served, release is automatic. In the case of a life sentence prisoner, he will not be released after the end of the tariff period unless the Parole Board can be satisfied that he does not constitute a risk to the public for the future. This is the very object section 2 was designed to achieve in relation to those who would not be sentenced to life imprisonment before that section came into force. It is clear that as a result of section 2, offenders are now being sentenced to life imprisonment when there is no objective justification for that sentence. Such a result can be categorised as being arbitrary and not proportionate.

[107]In his speech in The Governor of Brockhill Prison ex parte Evans (No.2 )

[2000] 3 WLR 843

at p.858, Lord Hope considered the relationship between

Article 5 of the Convention

and our domestic law. In the course of doing so, he recognised that the question would arise as to whether, "assuming that the detention is lawful under domestic law", it is nevertheless open to criticism on the ground that it is arbitrary because, for example, it was resorted to in bad faith or was not proportionate". Here no question of bad faith arises. In addition, we recognise that there have been, and will be, cases where section 2 of the 1997 Act has, and will, operate in a proportionate manner. However, as the section has hitherto been interpreted, it can clearly operate in a disproportionate manner. It is easy to find examples of situations where two offences could be committed which were categorised as serious by the section but where it would be wholly disproportionate to impose a life sentence to protect the public. Whenever a person is convicted of an offence, there is always some risk that he or she may offend again. Equally, there are a significant number of cases in which two serious offences will have been committed where the risk is not of a degree which can justify a life sentence. We refer again to the very wide span of manslaughter, which is a serious offence within the Act. An unjustified push can result in someone falling, hitting his head and suffering fatal injuries. The offence is manslaughter. The offender may have committed another serious offence when a young man. A life sentence in such circumstances may well be arbitrary and disproportionate and contravene Article 5. It could also be a punishment which contravenes Article 3.

[108]The problem arises because of the restrictive approach which has so far been adopted to the interpretation of exceptional circumstances in section 2. If exceptional circumstances are construed in a manner which accords with the policy of Parliament in passing section 2, the problem disappears.

[109]Section 2 establishes a norm. The norm is that those who commit two serious offences are a danger or risk to the public. If in fact, taking into account all the circumstances relating to a particular offender, he does not create an unacceptable risk to the public, he is an exception to this norm. If the offences are of a different kind, or if there is a long period which elapses between the offences during which the offender has not committed other offences, that may be a very relevant indicator as to the degree of risk to the public that he constitutes. Construing section 2 in accordance with the duty imposed upon us by section 3 of the 1998 Act, and taking into account the rationale of the section as identified by Lord Bingham gives content to exceptional circumstances. In our judgment, section 2 will not contravene Convention rights if courts apply the section so that it does not result in offenders being sentenced to life imprisonment when they do not constitute a significant risk to the public. Whether there is significant risk will depend on the evidence which is before the court. If the offender is a significant risk, the court can impose a life sentence under section 2 without contravening the Convention. Either there will be no exceptional circumstances, or despite the exceptional circumstances the facts will justify imposing a life sentence.

[110]Under section 2 it will be part of the responsibility of judges to assess the risk to the public that offenders constitute. In many cases the degree of risk that an offender constitutes will be established by his record, with or without the assistance of assessments made in reports which are available to the court. If a court needs further assistance, they can call for it. The courts have traditionally had to make a similar assessment when deciding whether a discretionary life sentence should be imposed. There should be no undue difficulty in making a similar assessment when considering whether the court is required to impose an automatic life sentence, although the task will not be straightforward, because of the lack of information as to the first serious offence which will sometimes exist because of the passage of time.

[111]This does not mean that we are approaching the passing of an automatic life sentence as though it is no different from the imposition of a discretionary life sentence. Notwithstanding the interpretation resulting from the application of section 3(1) of the 1998 Act suggested, section 2 will still give effect to the intention of Parliament. It will do so, however, in a more just, less arbitrary and more proportionate manner. Section 2 will still mean that a judge is obliged to pass a life sentence in accordance with its terms unless, in all the circumstances, the offender poses no significant risk to the public. There is no such obligation in cases where section 2 does not apply. In addition, if the judge decides not to impose a life sentence under section 2, he will have to give reasons as required by section 2(3). Furthermore, the issue of dangerousness will have to be addressed in every case and a decision made as to whether or not to impose a life sentence.

[112]The objective of the legislature, identified by Lord Bingham, will be achieved, because it will be mandatory to impose a life sentence in situations where the offender constitutes a significant risk to the public. Section 2 therefore provides a good example of how the 1998 Act can have a beneficial effect on the administration of justice, without defeating the policy which Parliament was seeking to implement.

[113]In view of our conclusions as to the impact of Articles 3 and 5, it is not necessary to consider Article 8.

[114]We now turn to consider the consequences of our conclusions as to the law on the individual cases which are before us.

[115]CONCLUSIONS

[116]Offen

[117]In order to decide whether this is a case where exceptional circumstances apply for the purpose of section 2, we have considered whether the material supports the existence of a finding of significant risk to the public. Apart from the two relevant convictions, the appellant has two convictions of theft recorded against him in 1990. The pre-sentence report and the medical reports do not support such a finding. We conclude that the appellant is not to be regarded as presenting a significant risk to the public. This is a case where, in our judgement, exceptional circumstances do exist and a life sentence is inappropriate. We therefore allow this appeal, set aside the life sentence and substitute for it a determinate sentence of three years imprisonment.

[118]McKeown

[119]In our judgment and, taking into account the findings of the judge, the circumstances of this offence, although a serious offence, are not such as to warrant a substantial prison sentence. The determinate sentence fixed by the judge was appropriate. Further there is here no material from which it could be concluded that the appellant presents a significant risk to the public. In this case, therefore, we conclude that exceptional circumstances exist and that the case does not fall within the rationale of section 2. We allow the appeal, set aside the life sentence and substitute a sentence of three years imprisonment.

[120]McGilliard

[121]In our judgment, the matters set out properly lead us to conclude: (i)That on 4 December 1998 the appellant committed a grave offence sufficient to warrant a substantial prison sentence. (ii)That the appellant presents a serious and continuing danger to the public.

[122]The appellant's antecedent record for unlawful violence and the circumstances of the present offence, the pre-sentence reports and the medical reports clearly indicate that there are here no exceptional circumstances which would permit a court not to pass a life sentence under section 2. We confirm the notional determinate sentence of seven years as entirely appropriate for the offence which the appellant admitted and dismiss the appeal.

[123]Okwuegbunam

[124]No finding as to dangerousness was made by the sentencing judge. We have considered the question for ourselves, in order to decide whether exceptional circumstances exist in this case. Our assessment has been made on the basis of the antecedents and the circumstances of the offences themselves, to the extent that they are known. There is no pre-sentence or medical report to assist us.

[125]As regards the trigger offence of manslaughter, we take account of the fact that death resulted unexpectedly from two blows inflicted without an intention to cause serious harm. On the other hand, for the reasons given by the judge in his sentencing remarks, this was an offence of some gravity. In our view, the notional determinate sentence of six years was generous to the appellant and the figure could have been higher. The appellant had received a substantial custodial sentence in 1990 for an offence of violence on the same victim, though account must of course be taken of the lapse of time and the absence of any further offences of violence during the intervening period. As to the offence of rape for which he received a sentence of five years imprisonment in 1990, we bear in mind what the appellant says about the circumstances of the offence, as communicated to us in oral and written submissions on his behalf. We give him the benefit of the doubt on those matters, since the material now available does not disclose whether his account was accepted at the time or not. The fact remains that it was a very serious offence committed against a young girl.

[126]We have not found this an easy case to decide. It is close to the borderline. Taking everything into account, however, we have come to the conclusion that the appellant constitutes a significant risk to the public. The case therefore falls within the rationale of section 2, exceptional circumstances do not exist, and a life sentence was rightly imposed. Accordingly, we dismiss the appeal itself.

[127]Stephen Peter S

[128]The judge was, in our view, wrong to treat the difference in type between the earlier section 18 offence and the new sexual offences as amounting to exceptional circumstances. That difference is a relevant consideration but is not sufficient to justify such a conclusion. We have considered whether exceptional circumstances exist in this case in the light of the principles laid down in this judgment. There was no finding by the judge on the question of dangerousness. The matter was not covered by any reports before the court. In our judgment, however, the long history of offending, including numerous offences of violence, together with the detailed circumstances of the sexual offences and violence towards the offender's own daughters (in relation to whom he showed no remorse in his stance at trial), warrants the conclusion that he does pose a significant risk to the public. This case falls within the rationale of section 2 of the 1997 Act. We hold that there are no exceptional circumstances. The Attorney General's reference succeeds and a life sentence under section 2 will be substituted for the determinate sentence of 12 years. It follows that the renewed application to appeal against sentence fails, though the points of substance raised in it are considered below in the context of tariff.

[129]We must also specify a period for the purposes of section 28 of the 1997 Act. We take as our starting point a notional determinate sentence of 12 years, corresponding to the sentence passed by the judge below. Mr Edie submitted that 12 years was manifestly excessive and drew our attention to a number of authorities in support of that submission. We are satisfied, however, that 12 years was an entirely appropriate sentence for these terrible offences against the offender's own daughters. In specifying the period under section 28, we make an appropriate deduction from that notional determinate sentence and a further reduction to take account of the fact that the offender spent 11 months and 11 days on remand in custody before sentence was passed. Taking everything into account, we specify a period of five and a half years to commence from the date the judge passed sentence.

[130]The following was certified as a point of law of general public importance:

"Whether in accordance with Article 7 of the European Convention on Human Rights and section 3 of the HRA 1998, section 2(1)(b) of the Crime (Sentences) Act 1997 must be read to mean 'at the time when that offence was committed, he was 18 or over and had been convicted after the date on which this section came into force , in any part of the United Kingdom of another serious offence'. In other words, whether it is necessary to read into the section the phrase ' after the date on which this section came into force ' in order to prevent a retrospective aggravation of the penalty that was applicable for the original offence at the time it was committed."

[131]Leave to appeal to the House of Lords was refused.

Cited in 26 later judgments

and 17 more of the most senior