Life in crime

Section 225 of the Criminal Justice Act 2003 requires courts to pass life sentences or indeterminate sentences for public protection (IPPs) for a large number of 'specified' sexual and violent offences: almost all the offences in the Sexual Offences Act 2003, and almost all violent offences from assault occasioning actual bodily harm upwards. If an offender falls to be sentenced for an offence to which Section 225 applies, the court is obliged to pass either a life sentence or an IPP if in the court's view the offender is 'dangerous'. They are dangerous for these purposes if the court finds that there is a substantial risk that they will cause serious harm to the public by committing another offence in future that itself would attract a life sentence or IPP. The calculus is stark and simple: if 'dangerous' as defined by the CJA, the offender must receive either life or IPP.

Only set minimum term

Criminal practitioners have become familiar with this type of sentence, and so have those responsible for the management of our grossly overcrowded prisons. We all know that when the judge passes an IPP they can only set the minimum term that the offender has to serve in prison. When that time is up, the offender is not released until the National Offender Management Service (NOMS) decides he has stopped being dangerous.

Just before Section 225 came into force, the Court of Appeal heard argument in Goodyear [2005] 1 WLR 2532. Again, criminal practitioners will recognise this case as authorising judges to give indications on sentence. Having spent many years losing a battle to discourage judges from giving informal indications, the court through Lord Woolf as lord chief justice instead decided to rationalise and formalise the procedure. In an appropriate case, a judge may give an indication of what he considers the maximum sentence for the offence in question on the basis of an anticipated guilty plea. There has to be a factual basis for the proposed plea, notionally agreed with the Crown. If the defendant does not like the indicated sentence, he is free to continue with his not guilty plea and take his chances at a trial, but if he does, the judge is not bound by the indication and may pass whatever sentence he thinks appropriate if the defendant is convicted. But if the defendant changes his plea on the basis of the indication, the judge must honour it.

Now here's the rub. The IPP passed in court gives the minimum; the Goodyear indication tells the defendant the maximum sentence. What to do when an indication is sought for an offence which attracts an IPP or life sentence? The defendant seeking the indication has not pleaded guilty '“ he wants an indication to help decide if he should. So there has been no pre-sentence report, and most pertinently no assessment of future risk of offending.

'I've had a fight in pub, I punch someone who bangs his head and gets a cut. They charge me with affray and ABH. I can't remember much about it, because the incident took place at my wedding but I think one of the wife's relatives said something about my mother. Unfortunately, I've got a couple of previous for fighting in pubs. I don't know if the complainant will turn up to court. I'm hoping to receive community service and I want to know what's on the cards.

'But the judge knows I am contemplating a plea to an offence that attracts an IPP and so the court must assess dangerousness when deciding what to do with me. What if he agrees to give an indication before getting the background on me in a pre-sentence report? I plead guilty, he adjourns for a report, and the report says I am dangerous?'

Something like this happened in Cardiff Crown Court in December 2005, in a case called Kulah ([2007] EWCA Crim 1701). In fact in May 2007 Court of Appeal quashed the IPP however, it gave the following important guidance in IPP cases where Goodyear indications are sought. First, the prospect of an IPP being passed does not prevent a Goodyear indication being given. But in those circumstances the judge must make it clear that:

• The offence is a 'specified offence' bringing into operation the 'dangerous offender' provisions of the CJA.
• The information for the assessment of future risk is not available and the assessment remains to be conducted.
• If the defendant is later assessed as 'dangerous', the sentences mandated by the provisions - an indeterminate or extended sentence - will be imposed.
• If the defendant is not later assessed as 'dangerous', the indication relates in the ordinary way to the maximum determinate sentence which will be imposed.
• If the offender is later assessed as 'dangerous', the indication can only relate to the notional determinate term which will be used in the calculation of the minimum specified period the offender would have to serve before he may apply to the parole board to direct his release.
• If an indeterminate sentence is passed, the actual amount of time the offender will spend in custody is not within the control of the sentencing judge, only its minimum.

It also emphasised that where a case is transferred to another judge post-indication, the second judge has to be satisfied a dangerousness assessment has been carried out.

'The court has tried to square the IPP-Goodyear circle, but the result is possibly not helpful to me after my wedding fight. I want to know what I'm going to get. It's not much help to be told I'll get 18 months unless I'm found to be dangerous in which case whatever the judge gives me is notional and depends on the view that NOMS take of me in the future. I'll take my chances with a trial.'

You cannot readily reconcile the giving of open-ended prison sentences and indications of maximum sentences. If the principle of Goodyear was to allow defendants to make informed decisions, and thus to gently encourage guilty pleas, the IPP regime is almost certain to do the opposite. It is rational to prefer to chance an acquittal when a judge tells you he cannnot tell you how long you will be in prison if you plead guilty. It may be that judges will be more reluctant not less to give indications in IPP cases.