Jan, R. v [2007] EWCA Crim 3223

Case No 2004/04030/B2

[2007] EWCA Crim 3223

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Thursday, 29th November 2007

Strand

London, WC2

B E F O R E:

LORD JUSTICE GAGE

MR JUSTICE UNDERHILL

SIR CHRISTOPHER HOLLAND

Between

R E G I N ACrown

-v-

Between

RICHARD JAN

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Mr K Khalil QC and Mr G Perrins appeared for Appellant

Mr O Pownall QC and Mr O Glasgow appeared for Crown

Judgment

LORD JUSTICE GAGE:

[1]On 10th June 2004 at the Crown Court at Middlesex Guildhall, following a trial, this appellant was convicted of causing a public nuisance (count 1) and arson with intent to endanger life (counts 2 and 5). No verdicts were entered on alternative counts. On 9th July 2004 he was sentenced to life imprisonment on each count to run concurrently. After considering the provisions of section 82A of the Powers of Criminal Courts (Sentencing) Act 2000, the judge concluded that because of the exceptional circumstances it would be inappropriate to assess any tariff period.

[2]Leave to appeal was granted against his convictions and also against sentence by the single judge.

[3]The Court of Appeal (Criminal Division), a differently constituted division, heard the appeal against conviction and gave judgment in that matter dismissing the appellant's appeal in a judgment, the neutral citation of which

[2006] EWCA Crim 2314

[4]We take the facts of this matter in summary from the judgment of the court dismissing the appellant's appeal against conviction, starting with paragraph 4:

"4. A comprehensive review of all the evidence in the case is not required. We shall provide a sufficient narrative to enable us to address the issues which arise in the appeal. In brief, as a result of an overwhelming sense of grievance, the appellant mounted a prolonged campaign against a very large number of individuals personally involved with the investigation into and assessment of his mental state, or connected with public or private bodies associated with their work. It is difficult to exaggerate the devastating impact of this campaign on many of those who were victims of it. It was conducted with great cunning, intelligence and ruthlessness, and, taken as a whole, it was unremitting and unrelenting. 5. In October 1996, after his mother had expressed concerns about the appellant's health, a social worker, a care manager employed by the London Borough of Ealing, Shauna Bailey, organised a Mental Health Act assessment. She attended the Jan family home together with a colleague, Dr Keen, and two police officers. While the mental health assessment was in progress, the appellant became upset and agitated, and began to make threats against those who were present. The conclusion was that although he was not mentally ill, he was suffering from a personality disorder of psychopathic type for which it was not appropriate to order his detention under the Mental Health Act. In order to prevent an immediate breach of the peace, the appellant was arrested, but released without charge on the following day. The assessment was confirmed by letter signed by Miss Bailey. 6. Shortly afterwards, in November 1996, the appellant wrote to Miss Bailey articulating what he perceived to have been a violation of his liberty, threatening that she would not 'get away with it'. He made an official complaint to her superior, referring to errors made in the assessment, saying 'I will not forgive or forget as long as I live'. This was the start of a series of official complaints were made against members of the assessing team and those who associated with or supported them. These individuals included employees of the London Borough of Ealing, and members of the Council, members of the West London Mental Health Trust, and eventually employees of Bevan Ashford, solicitors instructed by the West London Mental Health Trust in civil proceedings, members of the South London Maudsley National Health Trust and members of the National Schizophrenia Fellowship. 7. Over the next few years the appellant wrote over six thousand pages of documents of complaint to Social Services for Ealing. Mental health resource centres were flooded with telephone calls from him. There was direct evidence that a very large number of different individuals were made the subject of repeated acts of harassment and vandalism by the appellant. These individuals received silent as well as threatening and nuisance telephone calls to their homes and places of work, and correspondence of a threatening nature. Some were followed to their home addresses. Property belonging to them was damaged. Car tyres were slashed. Unwanted documents and services, purporting to have been ordered by them, were delivered to their homes. Tradesmen and taxi drivers were sent to a number of different homes. The appellant was careful to cover his tracks. He changed his identity, pretending to be people he was not, travelling in cars to which false registration plates had been attached, and changing addresses, in such a way that nobody could know precisely at any given moment where he could be found. If it were necessary to set out the appellant's behaviour throughout the period covered by count 1, this narrative would be virtually interminable."

[5]A social worker Keith Galloway's car was sent on fire twice, on 9th November 1997 and on 22nd January 1998. Shauna Bailey, a colleague of Keith Galloway, was assaulted in January 2001. She required hospital treatment. On discharge her car, which was parked outside her home, was set on fire. On 8th October 2001 a petrol bomb was thrown outside the drive of the home of Simon O'Dell, the centre and sector manager of the West London Healthcare Trust. Innumerable telephone calls were made to other officials and counsellors. One, Dr Elizabeth Brookes, became the victim of a serious arson attack on her home in November 2001. That is described in the judgment in the following terms:

"12. ... In the early hours of the morning of 30 November 2001, the danger very seriously escalated. Petrol was poured onto or through the front door of [Dr Elizabeth Brookes'] home, and ignited. It caused very serious damage to the property. By good fortune, she and her family were able to make their escape, but their house was uninhabitable for six months. In any event, following the outrage, they felt obliged for reasons of safety to leave their home."

We have seen photographs of the extent of the damage.

[6]The judgment continues at paragraph 13:

"13. To provide a more rounded picture of the links between the specific counts of arson and the more general count of public nuisance, we shall refer to three further individual victims. The council leader, Mr Cudmore, and his wife started to receive silent telephone calls in the middle of the night. They were of a threatening, angry nature. Mr Cudmore eventually received a call saying it was his last warning, that he should leave Ealing, and that the appellant could only foresee real tragedy for him. The appellant said, 'I will fucking put an end to you. You need 24 hour protection. Any more court proceedings against me and you will regret it…I am not putting up with your fucking fascism any more'. Following the fire at the home of Elizabeth Brookes, Mrs Cudmore received a telephone call in which the appellant said that he had 'got back his arson bag', with all his clothes and he asked for £75, saying, 'if I go to hell you are coming with me'."

[7]The threats to others continued. All those caused serious concern to the recipients.

[8]The appellant was arrested in February 2002 and again in February 2003. Two homes which he had occupied were searched, and a number of handwritten documents and notes seized. They categorised in three orders of culpability lists of those described as "the Grand Coalition" against him. The results of the search are summarised in paragraph 18 of the Court of Appeal judgment when dismissing the appeal against conviction.

[9]The appellant has one previous conviction for assault in 1999. He was conditionally discharged for 12 months.

[10]Before the sentencing judge there was a psychiatric report from Dr Cumming dated 9th July 2004. Dr Cumming recommended an interim hospital order, pursuant to section 38 of the Mental Health Act 1983. In an addendum to the report dated 3rd May 2005, Dr Cumming reported that the appellant was more compliant, but Dr Cumming still felt that he would benefit from an assessment in hospital.

[11]We turn to the sentencing remarks of the judge. Having outlined in strong terms the appellant's conduct and its effect on others,

the judge said:

"Some of your sentiments are unconscionable and you cunningly set out to unnerve and ruin people who you thought had crossed you. You targeted them and what you did was to try and make their lives as miserable as you found yours. You knew exactly how to do it. You made references to their homes, their children, you let them know you were following them. It defies belief that you were allowed to do it for as long as you were. Sadly you show absolutely no remorse and you have continued to threaten people, including the counsel in this case during the trial. After eight years of such single-minded obsession leading to the arson endangering the lives of the Brookes family and Shauna Bailey it is absolutely dreadful to read the impact statements in this case. It was a question of luck rather than judgement that Mrs Brookes happened to be downstairs when her house, in effect, was set alight and it was therefore through no judgement of yours but only quirk of fate that allowed them all to escape. I have no doubt that you are and will continue to be a risk to the public. On your own admission you embarked upon a campaign."

[12]At page 6 of the sentencing remarks,

the judge observed:

"In my judgement you represent a callous unconcern for the feelings of others. You have a gross and persistent attitude of irresponsibility in relation to the normal social rules. You have a very low tolerance to frustration and you demonstrate aggression. Your brother described your abnormality and some of the things that you said on oath in court. As I have said, you show no remorse. You have an incapacity to express guilt. So I ask as best I can, Mr Jan, what is the only appropriate sentence that can be passed in this case? I ask the following questions; do the offences [of] which you have been convicted amount to grave offences warranting a very long sentence and the answer is yes. In relation to each one of the Counts on this indictment I say that. That is 1, 2 and 5, that is the public nuisance and the two arsons with intent. I ask myself the question are you unstable and likely to commit offences in the future of your declared war, as you have said, which you will continue whilst you still have breath, you have said, in the trial. The answer to that is yes. I ask myself the question is your mental instability as identified of a kind that requires constant supervision and reassessment and would your commission of offences in the future have consequences to others which would be especially injurious and the answer I come to is yes. Over 100 witnesses, people who are on witness protection, people who were too frightened to come and face you and had to give evidence behind screens. You read the impact statements here. Bearing all those matters in mind there is only one sentence in my judgement here that fully protects the public and is consistent with my public duty and that is one of life imprisonment."

[13]There are six grounds of appeal. Grounds 1 to 3 criticise the judge for rejecting an application to adjourn sentence for preparation of a further psychiatric report. It is submitted that the judge could not properly consider sentence without the further report.

[14]So far as these grounds are concerned, whether or not the judge ought to have granted an adjournment, and we think he might have been wiser to have done so, any mischief caused by that decision has now been remedied by the further reports which are before this court.

[15]By grounds 4 and 5, the appellant contends that it was wrong in principle for the judge to pass sentences of life imprisonment on any of the three counts. This is the focus of the grounds of appeal in this case.

[16]Ground 6 criticised the judge for failing to make provision for a minimum term in respect of the sentences of life imprisonment. At the outset of the hearing, Mr Pownall QC, on behalf of the Crown, conceded that the judge ought to have set a minimum term.

[17]Mr Khalil QC, for the appellant, and Mr Pownall have referred to a number of authorities dealing with the principles relevant to this appeal. They are R v Hodgson

(1967) 52 Cr App R (S) 113

, R v Wilkinson

(1983) 5 Cr App R (S) 105

; Attorney-General's reference No 32 of 1996 (R v Whittaker)

[1997] 1 Cr App R (S) 261

; and R v Chapman

[2000] 1 Cr App R 77

[18]In considering the grounds of appeal we have considered the above authorities. We have also been supplied with the judgment of the Court of Appeal (Criminal Division), to which we have already referred, dismissing the appellant's appeal against conviction; the medical reports which were before the sentencing judge; witness statements from those who know the appellant, including his mother; and a report from the chaplaincy of the prison dated 7th November 2006. We add that the witness statements from those who know the appellant have been updated with more recent statements. We have also considered reports relating to the appellant's mental state.

[19]We propose to deal first with the authorities which are relevant to the principles on which the court should act when passing a discretionary life sentence. The starting point is the classic statement of principle in Hodgson. In the judgment of the court MacKenna J set out the three criteria which must be satisfied before a life sentence is passed. At page 114 MacKenna J said:

"When the following conditions are satisfied, a sentence of life imprisonment is in our opinion justified: (1) where the offence or offences are in themselves grave enough to require a very long sentence; (2) where it appears from the nature of the offences or from the defendant's history that he is a person of unstable character likely to commit such offences in the future; and (3) where if the offences are committed the consequences to others may be specially injurious, as in the case of sexual offences or crimes of violence."

[20]In Wilkinson Lord Lane CJ stressed that discretionary life sentences should only be passed in exceptional circumstances(page 108):

"It seems to us that the sentence of life imprisonment, other than for an offence where the sentence is obligatory, is rarely appropriate and must only be passed in the most exceptional circumstances. With a few exceptions, of which this case is not one, it is reserved, broadly speaking, as Lawton LJ pointed out, for offenders who for one reason or another cannot be dealt with under the provisions of the Mental Health Act, yet who are in a mental state which makes them dangerous to the life or limb of members of the public. It is sometimes impossible to say when that danger will subside, and therefore an indeterminate sentence is required, so that the prisoner's progress may be monitored by those who have him under their supervision in prison, and so that he will be kept in custody only so long as public safety may be jeopardised by his being let loose at large."

[21]Lord Bingham CJ in Attorney-General's Reference No 32 of 1996 (Whittaker) further explained the second and third criteria of the threefold test. Having referred to the passage in Hodgson to which we have just referred, Lord Bingham said:

"Counsel for the Attorney General submits that the principles formulated in that quotation [the quotation in Hodgson] do not as a matter of uniform practice require medical evidence but merely describe circumstances from which the necessary inference of continuing danger to the public can be drawn. So much, he suggests, is confirmed by R v De Havilland (1983) 5 Cr App R(S) 109, where a sentence of life imprisonment was upheld by this court, despite the fact that there was no medical evidence. In our judgment the learned judge was taking an unnecessarily narrow view of the circumstances in which a discretionary life sentence can be imposed. It appears to this court that the conditions may be put under two heads. The first is that the offender should have been convicted of a very serious offence. If he (or she) has not, then there can be no question of imposing a life sentence. But the second condition is that there should be good grounds for believing that the offender may remain a serious danger to the public for a period which cannot be reliably estimated at the date of sentence. By 'serious danger' the court has in mind particularly serious offences of violence and serious offences of a sexual nature. The grounds which may found such a belief will often relate to the mental condition of the offender. So much is made plain by R v Wilkinson (1983) 5 Cr App R(S) 105, in particular in the passage at page 108 where Lord Lane CJ cites the judgment of Lawton LJ in R v Pither (1979) 1 Cr App R(S) 209 and continues ..."

There then follows in Lord Bingham's judgment the passage to which we have just referred taken Whittaker, before Lord Bingham continues:

"It is therefore plain that evidence of an offender's mental state is often highly relevant, but the crucial question is whether on all the facts it appears that an offender is likely to represent a serious danger to the public for an indeterminate time."

This latter statement is in our judgment relevant and important to the issues that we have to consider in this appeal.

[22]Finally, we refer to a passage in Lord Bingham's judgment in Chapman:

"It is in our judgment plain, as the court has on occasion acknowledged, that there is an interrelationship between the gravity of the offence before the court, the likelihood of further offending, and the gravity of further offending should such occur. The more likely it is that an offender will offend again, and the more grave such offending is likely to be if it does occur, the less emphasis the court may lay on the gravity of the original offence. There is, however, in our judgment no ground for doubting the indispensability of the first condition laid down for imposition of an indeterminate life sentence in R v Hodgson, re-affirmed, as we say, in the more recent Attorney General's Reference No 32 of 1996 (R v Whittaker). It moreover seems to this court to be wrong in principle to water down that condition since a sentence of life imprisonment is now the most severe sentence that the court can impose, and it is not in our judgment one which should ever be imposed unless the circumstances are such as to call for a severe sentence based on the offence which the offender has committed."

[23]It follows from the above that there will often be an overlap in respect of the three criteria set out in Hodgson. Indeed, in Whittaker Lord Bingham appears to have elided the second and third criteria.

[24]We turn to the Practice Direction (Criminal Proceedings: Consolidation)

[2002] 1 WLR 2870

, which makes clear that, save in exceptional circumstances, the court should make an order under section 82A of the Powers of Criminal Courts (Sentencing) Act 2000, setting a minimum determinate term which the appellant must serve before being considered for parole. As we say, so much is conceded by the prosecution. It is conceded by Mr Pownall that the judge should have made such an order in this case.

[25]It is appropriate now to turn to the evidence relating to the appellant's mental state. Before the sentencing judge, there was a report from Dr Ian Cumming, a consultant psychiatrist, dated 9th July 2004 and an addendum to that report dated 3rd May 2005. Before this court there are three reports, two from Mr PBJ Schaapveld, a consultant clinical and forensic psychologist, and one from Dr David Jones, a consultant forensic psychiatrist. There is also a very short report dated 29th May 2007 from Dr Quinn, the prison psychiatrist, who states that he has no current concerns about the appellant's mental state.

[26]We should say at once that although the appellant was given the opportunity of obtaining a report from a psychiatrist, Dr Nayani, and one has been obtained, it is not before us. We draw no inferences from this fact, but it has had certain consequences to which we will refer later.

[27]Dr Cumming's report, dated 9th July 2004, refers to reports made by two other psychiatrists, which we have not seen. The latter two psychiatrists had treated the appellant over a period when the offences were being committed, up to and including 2001. Dr Cumming commented on the difficulties of making a diagnosis and providing disposal options to the court. At paragraph 90 of his report he referred to the appellant's behaviour as "most concerning and what this represents". He concluded that the appellant did not have a mental illness, but was not able to rule out reliably such an illness without assessment in hospital. He pointed to the possibility that the appellant had a long-standing bipolar disorder, which had expressed both hypomanic and depressive components. In his report of 3rd May 2005, following sentence, Dr Cumming referred to the appellant's obvious persecutory ideation about various parties. He made no recommendation, but stated that he was endeavouring to have him referred to a high-security unit.

[28]Mr Schaapveld has provided two reports. The first is dated 10th November 2006. The second is dated 26th November 2007, and is largely a critique of Dr James' report. In his first report Mr Schaapveld concluded that three main features in the appellant's life had caused him to suffer a mood disorder. The three main features were: abnormal parenting and destructive family relations in his formative years; the development of a mood disorder immediately before and exacerbated by a Mental Health Act assessment in 1996; and the pattern of behaviour embarked upon by the appellant in order to seek redress from perceived wrongs perpetrated against him by various statutory agencies in the aftermath of the Mental Health Act assessment. He described the appellant's condition following his Mental Health Act assessment as a development of abnormal psychological symptoms associated with formal psychiatric symptoms.

[29]Mr Schaapveld, following tests, concluded that at the time of the offences the appellant did not suffer a personality disorder, but had developed an acute mental illness. He described the appellant's current status as free of symptoms of acute mental disorder. He recommended further psychological and pharmacological treatment. He described the risk of a repetition of similar offences as low, as long as the appellant "stays free of acute mental illness. This will be the case if he continues [the treatment]." In his most recent report, Mr Schaapveld states, having seen Dr James' report and conducted further tests, that he sees no reason to change his opinion.

[30]Dr James' report is dated 11th March 2007. His report is based on documentary evidence. He has not examined the appellant, nor seen his inmate medical records because the appellant has refused to see Dr James and refused consent for him to see his inmate medical records.

[31]We do not propose to go into the reasons why the appellant refused to see Dr James. We are content to observe that it was unfortunate that he was unable to do so.

[32]Based on paperwork, Dr James' primary diagnosis was that the appellant suffered from a personality disorder of the paranoid type, with some features of dissocial personality disorder and emotionally unstable personality disorder. He was unable to exclude the possibility of the presence of a delusional disorder or mood disorder. As to the future, Dr James stated:

"7) The suggestion in Mr Schaapveld's report that Mr Jan's condition has suddenly resolved through the regular ingestion of an anti-depressant tablet of the sort that he was taking during most of his harassment campaign, would only be credible, if supported by firm and detailed evidence, which it is not. It may well be that incarceration and the limits that it has placed on Mr Jan's activities have resulted in his becoming less overtly disturbed and more able to contain his feelings of distress. However, what evidence is available to me does not suggest that there has been any underlying change in his beliefs or his self-justification for his actions. In other words, there is nothing in the documentation to indicate that he would behave in a different manner than previously, were he at liberty. As mentioned above, his campaigns are for the moment channelled into his appeal, as circumstances dictate. They have not ceased. The degree of dangerousness indicated by Mr Jan's previous actions speaks for itself. I can find no evidence in the material available to me that any effective intervention has occurred since to lower Mr Jan's dangerousness."

[33]Dr James recommended that the appellant continue to be treated, such treatment initially being pharmacological and then psychological treatment which would be likely to last some years. He envisages that such treatment can be carried out in prison, with the option of a referral to a DSPD unit.

[34]Mr Schaapveld and Dr James criticise each other's reports and conclusions. Mr Khalil suggests that Mr Schaapveld's report is to be preferred because he has had the opportunity of examining the appellant, whereas Dr James has not. Mr Pownall does not ask the court to prefer one of these two experts over the other. For ourselves, we find it very difficult to prefer the report of one to the other without hearing oral evidence from either of them, something which neither counsel asked us to do.

[35]Certain facts appear, however, to be common ground between the experts. There is evidence in Dr Cumming's report of the appellant's difficulties in his early life. Mr Schaapveld attributes one of the features relevant to the appellant's mood disorder as abnormal parenting and destructive family relations. Dr Cumming, who had presumably seen the appellant's medical reports, referred to treatment of the appellant provided by psychiatric services from 1996. This continued until 2001. Mr Schaapveld in his report states that at the time of the offences the appellant developed an acute mental illness. Neither Dr James nor Mr Schaapveld suggests that the appellant should be the subject of a medical disposal. Each states that he must continue to undergo treatment, consisting of pharmacology and psychological therapy.

[36]Against this background we approach the issues in this case. The first question which must be answered is whether the offences are so grave as to call for a very long sentence. Mr Khalil submits that they are not. He has referred us to a number of decisions of this court concerning offences of arson with intent to endanger life. He demonstrates by this means that the bracket for an offence of arson with intent to endanger life is in the region of 8 to 10 years, and in some cases lower. The facts in some of these cases are, he submits, far less serious than the facts of the offences of arson in this case.

[37]With respect to this submission, we are bound to say that we do not gain much assistance from these decisions. What none of them has is the appalling background to the offences of arson that exists in this case.

[38]In our judgment, on the information before him, the judge cannot be criticised for concluding that the first criterion for a determinate sentence was satisfied. These offences were very serious. We do not need to set out again the facts. We can do no better than refer to the factors set out in the respondent's skeleton argument. They are:(1) The appellant waged a war for almost 8 years against the four agencies with whom he came in contact;

(2) His campaign against them involved planning and deliberate targeting of large numbers of individuals and agencies, with whom he sought to air his grievances;

(3) A number of individuals were subjected to a terrifying ordeal of threats, violence and harassment, the impact of which was as devastating as it was intended to be;

(4) The individual acts of aggression ranged from silent and abusive telephone calls to acts of criminal damage directed at homes and property;

(5) The campaign or war culminated in two incidents of arson which posed a very real risk to the lives of any persons in the immediate vicinity;

(6) At the time of sentence the appellant had expressed no remorse for what he has done. Even now in a statement made by the appellant and placed before us today, the appellant's remorse and regret is expressed in unconvincing terms.

[39]We are quite satisfied that these offences are so serious that in themselves they justify a very long sentence. We are also satisfied that the combination of these offences passed the test of exceptionality. The judge's findings in relation to this question are in our view unassailable.

[40]The next question is whether the appellant continues to represent a serious danger to the public for a period which cannot reasonably be estimated. This is a question which must be answered based on the information now available to this court. In making this assessment we have very much in mind the facts of the offences and the judge's assessment of the appellant. Both these factors are particularly important in this case. We have already described the offences and set out some of the judge's sentencing remarks. We add that the judge found the appellant to be devious, manipulative and a bully.

[41]So far as the medical evidence is concerned, it is clear from Dr James' report that he regards the appellant as likely to pose a risk of serious harm to members of the public for some time to come. Mr Schaapveld takes a more optimistic view. He states that provided the appellant sticks to the treatment he recommends, the appellant will pose no real risk.

[42]As we have said, both experts agree that future treatment is required. Dr James, rightly in our view, draws attention to the fact that the appellant committed these offences at a time when he was receiving treatment. Mr Pownall draws attention to the fact that Mr Schaapveld has not explained in detail the pharmacological treatment currently being administered to the appellant. The appellant's inmate records have not been disclosed, and the absence of Dr Nayani means that there is before us no detail of that treatment.

[43]We have no doubt that Mr Schaapveld is right that at the time of the offences the appellant was suffering from an acute mental illness. It is neither necessary nor possible for us to identify the precise nature of that illness. The nature and gravity of the offences which he committed in our view show that at the time he represented a serious danger to the public. We are invited by Mr Khalil to conclude that there will either be no such risk in the future or, in Mr Schaapveld's words, a low risk "as long as Mr Jan stays free of acute mental illness." We are unable so to conclude. In our view, the length of the appellant's campaign and the seriousness of his conduct, together with the judge's assessment of him to which we have referred, lead to the conclusion that the danger to the public will remain for a period of time which it is impossible for us to predict. We would add that the two statements provided today to the court by the appellant give us no cause for reassurance on this issue.

The judge was in our view right to pass sentences of imprisonment for life on each of these counts.

[45]Having reached the above conclusions, pursuant to section 82A of the Powers of Criminal Courts (Sentencing) Act 2000, we must now set the time which the appellant must serve before which he will be eligible for parole. In doing so, Mr Khalil concedes (and section 82A(4) provides) that we must take into account the seriousness of the offences as a whole. We have regard to the decisions relating to offences of arson with intent, to which Mr Khalil referred. We have already pointed out that we have derived little help from them when dealing with what in our judgment is a quite exceptional case.

[46]The facts are set out at the outset of this judgment. We bear in mind that if a determinate sentence had been passed there is a likelihood that the sentences would have been consecutive.

[47]In our opinion the proper term to set in respect of the determinate element of each of these offences is 7½ years on each count, representing one half of a determinate sentence of 15 years. From the period of 7½ years there will be deducted the number of days spent on remand by the appellant before sentence.

[48]We would point out, for the benefit of the public, that this will not mean that the appellant will be released after that period has expired. It will mean that when he has served that period the Parole Board will decide whether it is safe for him to be released.

[49]To that extent, and for those reasons, this appeal is allowed.

[50]Now what is the period of --

[51]MR KHALIL: My Lord, I have done my best to calculate the days. I have worked it out at 519 days. But in accordance with the recent authority, the name of which I apologise has escaped me, I invite you to say that it be 519 days or such days as is the correct number.

LORD JUSTICE GAGE: I think if we say that, then if there is an error then it can be corrected by this court.

[53]MR KHALIL: It has been approved as a formula by this court on another occasion.

LORD JUSTICE GAGE: Anything else?

[55]MR KHALIL: Thank you very much.

LORD JUSTICE GAGE: I should just like to express our gratitude to both of you for the way you presented the case today, and particularly Mr Khalil to you and your solicitors and your client in co-operating with the court in taking part in the conference or consultation before court. Without that facility and without your co-operation, needless expense would have been incurred by, dare we say it, the very late supply of a report by Dr Nayani, for which nobody on your side of the fence is to blame. But it is very regrettable that that report was not available much, much sooner. He had ample time to do it and we would like to see that those remarks are conveyed to him. We hope it will not happen again.

[57]MR KHALIL: My Lord, I am sure we all agree with those latter sentiments.

[58]May I be allowed time with Mr Jan when the court rises?