| Crime — Sentence — Imprisonment for Public Protection — Offences straddling commencement date of new sentencing provisions — Determination of day when offence committed — Principles applicable — Criminal Justice Act 2003, ss 224-228, 229, 234
R v Harries and others
CA: Sir Igor Judge P, Field and Treacy JJ: 6 June 2007
A term of imprisonment for public protection should not be imposed for an offence which was committed over a period of two or more days which straddled the coming into force of the dangerous offender provisions where it was not clear when the offence was actually committed.
The Court of Appeal, Criminal Division, so held when allowing an appeal by TS and refusing applications for leave to appeal by RS, LB and KF against sentences of imprisonment for public protection on their convictions of various offences of possessing, making and/or taking indecent photographs of children and or/sexual activity with a child.
TS’s sentence of imprisonment for public protection with a minimum specified period of 15 months was reduced to a determinate sentence of 30 months’ imprisonment. Michael John Harries, who pleaded guilty to making indecent photographs of children and engaging in sexual activity with a child, was sentenced under s 227 of the Criminal Justice Act 2003 to an extended sentence comprising a custodial term of three years’ imprisonment and an extended period of licence of three years. His sentence was reduced to a total of two years’ imprisonment and a Sexual Offences Prevention Order was made.
SIR IGOR JUDGE P, giving the judgment of the court, said that the five cases raised questions about the application of the sentencing provisions in ss 224-229 and 234 of the Criminal Justice Act 2003, in relation to dangerous offenders, where the offences straddled 4 April 2005, the commencement date of those provisions. The starting point was that where changes in the law brought into effect more severe sentences and where a number of offences had taken place over a period of time straddling the commencement date but the exact dates of the offences could not be identified the lower maximum should apply: R v S (1992) 13 Cr App R (S) 306. Did the provisions of the 2003 Act and subordinate legislation means that those broad principles should be disapplied? S 234 provided that where an offence had been committed over a period of two or more days it should be taken, for the purposes of s 229, to have been committed on the last of those days. S 229 was concerned with the assessment of dangerousness. S 234 did not refer and in the statute was not linked to ss 225-228. Reference had been made to the commentary of Dr David Thomas in R v Howe [2006] EWCA Crim 3147; [2007] Crim LR 395 who suggested that a mistake had been made in the drafting of s 234 which in Dr Thomas’s opinion should have referred to ss 225-228 and not s 229. Their Lordships could not construe a statute which created the power to impose a sentence of imprisonment for public protection other than strictly and it would be inappropriate to treat the draughtsman of s 234 as having suffered from a Homeric nod. Having now had the assistance of counsel in the cases before the court their Lordships adhered to the views expressed in R v Howe. The net result was that where a count spanned the commencement date of the provisions of Chapter 5 of the 2003 Act, ss 224–229 should not apply unless the relevant count in the indictment specified that at least one offence was committed after that date. Nevertheless, even if the sentencing court was unsure if a qualifying offence had been committed after the commencement date offences before that date did not cease to be relevant and might have some bearing on the question of dangerousness and the minimum term to be specified. Some care needed to be taken with the drafting of the appropriate counts in the indictment and where possible they should be drafted so as to reflect the relevance of 4 April 2005.
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