Neutral Citation Number: [2007] EWCA Crim 1166
Case No:2006/05398/A5 (1) 
2006/05842/A6(2)
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT NORTHAMPTON (1)
HIS HONOUR JUDGE ALEXANDER QC
THE CROWN COURT AT PORTSMOUTH (2)
HIS HONOUR JUDGE HETHERINGTON

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 6th June 2007
Before :

THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
LORD JUSTICE GAGE
MR JUSTICE GOLDRING
MRS JUSTICE RAFFERTY
and
MRS JUSTICE SWIFT
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Between :

	R
-v-
Considine (1)

R
-v-
Davis (2)		

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Mr M Maynard  for the Appellant (1) 
Rt Hon Lord Goldsmith QC, HM Attorney-General,
Mr Nicholas Hilliard and Nigel Povoas for the Crown

Miss E.B Bussey-Jones for the Applicant (2)
Rt Hon Lord Goldsmith QC, HM Attorney-General, 
Mr Nicholas Hilliard and Nigel Povoas.
 for the Crown   

Hearing dates : 3rd May 2007
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Judgment
President of the Queen's Bench Division :
1.	These cases came before the full court as renewed applications for leave to appeal against sentence, following refusal by the single judge.  An issue of principle arose which justified the grant of leave to Considine.  Having heard the argument on 3rd May 2007, we dismissed Considine’s appeal, and refused Davis’ renewed application for leave to appeal.  These are our reasons.
Lawrence Philip Considine 
2.	Lawrence Considine is now thirty eight years old.  He has twelve previous convictions for twenty four offences, including offences of violence. 
3.	On 23rd August 2006 in the Crown Court at Northampton before His Honour Judge Alexander QC and a jury he was convicted on two counts of making a threat to kill and one count of unlawful possession of an article with a blade or point.  He was acquitted of assault occasioning actual bodily harm, on the basis that no actual bodily harm was sustained by his victim, and also acquitted of criminal damage, on the basis that no property was in fact damaged.  Two further counts were ordered to remain in the file on the usual terms, and no evidence was offered in respect of an additional count of possession of an article with a blade or point.  A not guilty verdict was entered under section 17 of the Criminal Justice Act 1967.
4.	On 12th October 2006, Considine was sentenced on the two counts of making a threat to kill to imprisonment for public protection under section 225 of the Criminal Justice Act 2003 ( the 2003 Act), with a minimum term fixed at two years 159 days, account having been taken of 206 days spent in custody on remand.  The sentences were concurrent, and a further concurrent sentence of two years imprisonment was imposed for possession of an article with a blade or point.
5.	The facts of the case can be taken shortly.  The appellant had been involved in a long term relationship with the complainant, Jennifer Brown, which was marked with incidents of threats and violence.  After they separated, arrangements were made for the applicant to see his thirteen year old daughter at the weekends.  The precise arrangements do not matter, but the hand over arrangements were completed in a car park in Northampton.  On 10th September 2005, during the course of the exchange, an argument developed between the appellant and the complainant which arose from a letter received by him from solicitors in relation to an unconnected matter.
6.	The appellant lost his temper with the complainant.  During the course of the fracas which followed he threatened her, saying, “that’s it, now you are dead.  I am going to kill you”.  He returned to his car, and got into the passenger seat.  He then left the car carrying a lock knife in his hand.  He pointed the knife at her stomach.  He continued to shout at her, and he then started making threats to her brother Constantine, saying words to the effect that he would kill him.  Then while marking her neck with his index finger, he said “I am going to kill your brother.  Do you want to see how quick I can get hold of a gun.  Go and open my car boot and see the gun I have got in there”.  The complainant fled the scene, and entered a nearby store and asked for the police to be called.  The incident had been picked up on security cameras. 
7.	In due course the appellant was arrested.  He was found to be in possession of two knives, including a lock knife.  In interview he admitted that an argument had taken place, but said that any comments had been made in the heat of the moment.  There had been no violence.  He carried the knife because he was a carpenter and it was a tool which he used in the course of his normal work.
8.	During the course of the trial evidence was admitted under what we may describe compendiously as the “bad character” provisions of the 2003 Act.  The complainant gave evidence which revealed a pattern of violence by the appellant throughout the relationship.  She described a number of specific such incidents which had not resulted in criminal convictions.  In his sentencing remarks Judge Alexander explained that leave was given to the Crown under section 101 of the 2003 Act to adduce evidence from the complainant “of a history of violence towards her during her long relationship with the defendant”.  Her evidence “was of serious violence towards her going back many years,” which if made the subject of trial and convictions would have filled those ten years with “specified offences”.  It was submitted to the judge that all these matter were “unsubstantiated”.  They had not resulted in the “finality” of convictions.  The court should “steer clear” of attaching any weight to them, or of putting “too much weight” on them.  The same arguments were addressed to us by Mr Maynard.
9.	The judge adjourned overnight to consider the submission.  He explained that he had heard the evidence of the complainant and the defendant.  In the absence of any finding by the jury about specific incidents, but in the context of their verdict at trial, he made his own judgment.  He concluded that the complainant was a truthful witness, who did not seek to exaggerate her evidence, and showed no signs of antagonism towards the appellant.  The judge considered “the reverse to be the case” of the appellant, who appeared to be a “potentially very dangerous man”, particularly in the course of his “dealings” with the complainant and anyone who crossed him.  The judge reminded himself that he should be extremely careful when making such judgments, and that he would not base any final conclusions exclusively on his own assessment of the evidence.  
10.	The judge reflected on the appellant’s previous record.  His convictions go back some years.  In 1992 he was convicted of threats to kill.  In 1994 he was convicted of assault occasioning actual bodily harm, an incident in the course of a dwelling house burglary in which the householder sustained a broken arm.  In 2004 he was convicted of assault occasioning actual bodily harm and using threatening abusive or insulting words or behaviour with intent to cause fear or provoke violence.  On this occasion he was carrying a piece of fence wood as a weapon.  He was however granted a conditional discharge.  
11.	The pre-sentence report concluded that the appellant was at medium to high risk of re-offending and “high risk of harm”.  The risks would be reduced if he were able to control his intake of alcohol and address what were described as “anger issues”.  The writer of the report believed that “much work” was needed to address these matters, but added that the appellant had reported to him that since his remand in custody he had indeed taken measures to address them.
12.	The sentence of imprisonment for public protection was based on a number of features, which the judge explained with meticulous care.  First, he addressed the facts of the offences of which the appellant was convicted.  He then considered the appellant’s previous convictions, and the concession, rightly made, that section 229 (3) of the Act presented him with a statutory assumption of dangerousness.  He then took account of the evidence from the complainant of the violent incidents which were described by her as part of the history of the relationship.  He considered his own assessment of the defendant.  He reflected on the pre-sentence report which supported his own assessment of the risk he posed. He concluded that it would be wholly unreasonable to disapply the statutory presumption of dangerousness, but even without the statutory assumption he would still have concluded that the necessary criteria justifying the order were “well established”.
Jay Davis
13.	Jay Davis was born in August 1989.  He has nine previous convictions for eleven offences.  
14.	On 2nd October 2006 in the Crown Court at Portsmouth, he pleaded guilty to possessing a firearm with intent to cause fear or violence.  On 20th October he was sentenced by His Honour Judge Hetherington to detention in a young offender institution for public protection pursuant to section 226 of the 2003 Act, with a minimum term of nine months, less 25 days remand time to be served.  An appropriate order was made for forfeiture of the firearm.  
15.	The facts can be taken very shortly.  The applicant discovered that one of his friends, Billy, had formed a relationship with a young woman, with whom he had had a relationship, and by whom he had had a child.  One day in September 2006 he visited her home, where he spoke to her sister.  When he was told that she was not there, he left with a parting message for Billy that he was “dead”.   He then crossed the road to Billy’s home, and asked to see him.  Billy’s mother answered the door, and when she asked why he wanted to see her son, he said “don’t matter, he is going to get this”.  He then showed her, or allowed her to see a black hand gun.  He then left the scene, and fearing for her son’s safety, and indeed her own safety, she reported the incident to the police.  
16.	At about 5.30 on the same day, the applicant was arrested.  When his home was searched a ball bearing rifle and a black hand gun, which the applicant said was a pellet gun, together with ammunition for both weapons, were found. In interview he asserted that he had been carrying only his mobile telephone with him.  He also confirmed that he was annoyed and “pissed off” because his ex-girlfriend was seeing Billy.
17.	The applicant pleaded guilty on the basis that he went round to both addresses, as alleged, carrying the pellet gun with him, but that he did not use it.  He told Billy’s mother that he was looking for him, or words to that effect.  At the time the gun was visible, and he was sentenced on the basis that although he took the handgun from his clothing, he did not specifically point the weapon at anyone, and did not use it.
18.	The applicant’s previous convictions included one offence each of possessing an offensive weapon, threatening behaviour, assaulting a police constable, criminal damage and harassment.  The pre-sentence report noted admissions by the applicant that after he left Billy’s mother, he fired two shots into the air.  He acknowledged that she “went white and was probably scared”, and he “showed a minimum understanding of the effect” upon her.
19.	The appellant informed the writer of the pre-sentence report that he had had an interest in guns since he was a child, and concern was expressed that the applicant believed that he lived in a “gangster type” of culture in which  threats and violence were common. He accepted that he had a problem with his temper.  The use of cocaine and cannabis was an almost daily occurrence with him, and the instant offences occurred after he had taken drugs and alcohol.  He was also prescribed Ritalin as a treatment for his ADHD.  
20.	The assessment was that there was a high likelihood of re-offending, and the risk of harm to the public was also assessed as high.  The risk would be likely to come from the threat of violence or actual violence.  Reference was also made to evidence which suggested a suicide risk.
21.	In addition to the pre-sentence report, the judge was provided with medical reports which addressed the ADHD problem.    
22.	In his sentencing remarks, the judge reviewed the facts of the offence, and his approach to it, reflecting on the impact of the offence on the victim.  He recorded that two of the previous convictions involved the use of weapons, one when the applicant chased someone with a knife after a fight in the street, threatening to stab them, and the second when a sword was removed from its sheath, and used to make a threat.  He referred to the contents of the pre-sentence report, including the applicant’s early interest in guns, and the concerns of the probation officer that the applicant’s perspective of his own life was that he lived in a “gangster type” culture and that he had no wish for change.  The judge also referred to the observations about the applicant’s problems with his temper.  He referred to the applicant’s medical records, and the indications that he would act impulsively.  Although the judge acknowledged that to date the applicant had not in fact caused serious harm, his concern was the risk for the future, and he concluded that the applicant represented “a significant risk of causing serious harm to members of the public”.  An order for detention for public protection was appropriate.  
Discussion
23.	The question in each of these cases is whether the assessment of “dangerousness” for the purposes of section 225-229 of the Act was based on inadmissible material.  The analysis must begin with section 229 of the Act which sets out express statutory guidance by which the process of assessment should be governed.
24.	S229 (2) is concerned with the offender who is either under eighteen years, or without previous convictions.  S229(3) relates to the offender aged over eighteen years with one or more convictions for relevant offences, as defined in s 229(4).  When making the assessment for the purposes of s229(2) the court
“(a) must take into account all such information as is available to it about the nature and circumstances of the offence,
(b) may take into account any information which is before it about any pattern of behaviour of which the offence forms part, and
(c) may take into account any information about the offender which is before it.”
25.	When making the same assessment for the purposes of s 229(3) the court is required to take into account
“(a) all such information as is available to it about the nature and circumstances of each of the offences
(b) where appropriate, any information which is before it about any pattern of behaviour of which any of the offences forms part, and
(c) any information about the offender which is before it…..”
26.	In both sections, the critical, recurring, word is “information”.  In any criminal statute, but in this criminal statute in particular, when evidence in the strict legal sense is what is meant, the word “evidence” is used.  An obvious example is section 98 of the Act which addresses “evidence” of “bad character”.  Subject to differences in the precise language used in section 229(2) and section 229 (3) which are irrelevant for the present purposes, the breadth of the material which may be used to enable the court to make the assessment is emphasised by reference to “all” the information available to the court about the offence and its circumstances, and “any” information about the offender and “any “information about “any pattern of behaviour” of which the offence forms part.
27.	On any view, an assessment based on “information” is not restricted to “evidence”, and the information to be taken into account when making the assessment is not limited to the offender’s previous convictions or a pattern of behaviour established by them, or indeed information about the offender which is limited to them.  If it were otherwise, section 229 (2) (b) and (c) would not have been made to apply to the offender without previous convictions.  Accordingly, as a matter of statutory construction, relevant information bearing on the assessment of dangerousness may take the form of material adverse to the offender which is not substantiated or proved by criminal convictions.  
28.	The language of section 229 is unequivocal, and indeed this was the approach to it adopted in Johnson [2006] EWCA Crim 2486, where the court observed:
“ ….this provision adds nothing to the approach which the sentencer would normally take, that is, to consider all the information available to the court.  …it is difficult to see how any sentencer, properly forming his judgment, would fail to take all matters of possible relevance into account.  What section 229(2) highlights, however, is that it is not a pre-requisite to the finding of dangerousness that the offender should be an individual with previous convictions.  A man of good character may properly qualify for this sentence”.
The problem which arises is whether a decision of this court reached after Johnson, but without apparent reference to it, should produce the result that a criminal conviction is a necessary pre-requisite to the admissibility of criminal behaviour in the assessment of dangerousness.
29.	In  Farrar [2006] EWCA Crim 3261 the defendant pleaded guilty to abducting  and sexually assaulting a six year old child.  He persuaded the child to return with him to his flat.  He placed the child on his knee and masturbated himself to ejaculation.  The child left the flat, and the defendant’s semen was later found on the child’s clothing.  The defendant was a young man of good character.  The pre-sentence report referred to an allegation of an incident with similar features involving a seven year old child roughly nine months earlier.  Following a police investigation the defendant disputed the allegation, and he was not charged.  That denial was maintained when the defendant came to be sentenced for the offences to which he had pleaded guilty.  The earlier incident was of obvious potential relevance to the assessment of dangerousness.  The judge decided that he would determine the issue, in effect as a form of Newton hearing.  Having heard evidence from the complainant, the investigating officer and the defendant himself, the judge was in effect satisfied that the earlier incident had indeed taken place, and that it formed part of the information before him about a relevant pattern of behaviour for the purposes of section 229(2) (b) as well as providing relevant information about the defendant, and his abnormal interest in children for the purposes of section 229(2) (c).
30.	The argument advanced on Farrar’s behalf was that it was not open to the judge to conclude that he had committed the earlier assault, and that it could therefore not be taken into account when he was making the “dangerousness” assessment.  The court applied the observation of Lord Bingham CJ in Canavan [1998] 1CAR (s) 243 that
“A defendant is not to be convicted of any offence with which he is charged unless and until his guilt is proved… he may be sentenced only for an offence proved against him (by admission or verdict) or which he has admitted and asked the court to take into consideration when passing sentence… it is not easy to see how a defendant can lawfully be punished for offences for which he has not been indicted and which he has denied or declined to admit”.
Lord Bingham continued by analysing the provisions of the Criminal Justice Act 1991, and concluded that there was no relevant legislative provision which legitimated the practice of sentencing for unindicted, unadmitted offences.  Canavan resolved a problem in relation to sample counts and specimen charges, and conflicting decisions of this court in Clarke [1996] 2 CAR (S) 351 and Bradshaw [1997] 2 CAR (S) 128, and the correct approach to sentencing decisions where the prosecution alleged that the count or counts on the indictment were representative of criminal conduct of the same nature.  The court concluded that the punitive element of the sentence could not be increased unless the defendant admitted the offences or asked for them to be taken into consideration.
31.	Giving the judgment of the court in Farrar, Mitting J was unable to find any statutory provision in the 2003 Act which overrode the principle in Canavan.  Accordingly the exercise undertaken by the judge, which in effect amounted to trial by judge alone, was wrong.  However the court further suggested that the principle did not apply in two particular circumstances, one specific to sexual offences involving children, the second more general in its impact.  This was concerned with a trial in which evidence of similar conduct to that alleged against the defendant was adduced and properly to be regarded as accepted by the jury.  Where such evidence was given, “whether in relation to the same or another complainant”, the judge was not “prevented from taking such behaviour into account” when assessing dangerousness.  Thus it was plainly recognised that in making the assessment the court was entitled to take account of behaviour of a similar criminal nature to that charged when it formed part of the evidence before the jury. Accordingly Farrar itself does not provide authority for the proposition that the court must ignore “information” about criminal behaviour by the offender unless it has resulted in appropriate convictions.  
32.	Thereafter the court in Farrar went on to consider information contained in a psychiatric report prepared after sentence for the purposes of the appeal.  In it the defendant was reported to have described his sexual feelings for the small boy involved in the earlier incidence.  By taking this information into account the court highlighted that a criminal conviction is not a necessary pre-requisite to using this material in the context of assessing the future risk, if any, posed by the defendant.
33.	Lord Goldsmith submitted that the assessment of dangerousness did not represent or involve punishment for the offender.  The punitive element of the sentence was largely reflected in the tariff or determinate custodial period fixed by the judge.  The assessment of dangerousness for the purposes of a public protection order addressed the future risk represented by the offender.  We were reminded of the observation in Johnson where, referring to imprisonment for public protection, the court observed:
“Although punitive in its effect….strictly speaking, it does not represent punishment for past offending…the decision is not directed to the past, but to the future, and the future protection of the public”.
34.	We entertain reservations whether the full ambit of the principle in Canavan, which was concerned with the process of establishing guilt, applies to the assessment of dangerousness for the purposes of section 229.  What Farrar, consistently with Canavan prohibits, is the introduction of a hybrid arrangement into the criminal justice system, in effect the possibility of conviction, or effective conviction, of a serious criminal offence after trial by judge alone in the course of a sentencing decision. The court was concerned that section 229 should not be construed so as to allow the defendant to be deprived of his right to trial by jury, or in some way or other, be fixed with the consequences of guilt of a criminal offence without due process.  A Newton hearing is not an acceptable form of trial for a criminal offence.  It is after all a precondition to the Newton hearing that guilt of the offence is admitted by the defendant.  It is therefore inappropriate to embark on a Newton hearing to decide whether or not the defendant has committed a discrete, but similar offence to those already before the court, solely for the purpose of making the assessment of dangerousness.
35.	These considerations are consistent with the comment in Johnson that when reaching a conclusion adverse to the defendant, the judge should not rely on a disputed fact unless it could be resolved “fairly” to him.  One example of unfairness would arise if, not- withstanding the availability of evidence to justify prosecution for a serious offence, the defendant was undercharged on the basis that if convicted of the less serious offence, the prosecution could then supply the court with all the “information” relating to the more serious offence.  If the defendant were then treated as if he had been convicted of the offence, that would be unfair to him just because he might end up convicted, or effectively convicted in the course of the sentencing decision, in effect, without due process.   
36.	In our judgment what Farrar clearly did not decide is that, absent a conviction, the court making the section 229 decision is precluded from considering evidence of previous misconduct which would amount to a criminal offence.   Arguments advanced on the basis that it did so decide are ill-founded. The contrary is true, and in Farrar, the end result was that material directly related to the earlier incident did in fact contribute to the conclusion that Farrar himself should properly be assessed as dangerous.  For this purpose no conviction was necessary. Provided the judge could resolve the issue fairly, it was sufficient for the information to be contained in a psychiatric report.    Moreover, if the court could rely on information provided in circumstances like these, it is difficult to see how evidence admitted under the bad character provisions of the 2003 Act for consideration by the jury determining the defendant’s guilt of the charge in the indictment could be ignored when the assessment of dangerousness was being made.  Evidence tending to demonstrate to the jury that the defendant was guilty of the charge may plainly provide information relevant to dangerousness, and if admissible for the purpose of proving guilt would, if relevant, fall within the ambit of “information” as defined in section 229. If such evidence would have been admitted for this purpose, the defendant could not legitimately circumvent the deployment of the same information by pleading guilty. Equally, if the judge were to exclude such evidence from the trial, either on the basis that it was of insufficient relevance, or that, for whatever reason, it would be unfair for it to be admitted, the same conclusion would follow.   In short, we accept Lord Goldsmith’s submission  that there can be no logical reason for distinguishing between formal evidence, adduced before a jury, and evidence or information which comes before the court through some different route.  It would be quite inconsistent to adopt different approaches to such information on the basis of its source, or to exclude it from consideration because it formed no part of the material before the jury, or was not properly to be described as “evidence” at all.
37.	We have deliberately declined to lay down any hard and fast rules about how the court should approach the resolution of disputed facts when making the section 229 assessment.  In reality, there will be very few cases in which a fair analysis of all the information in the papers prepared by the prosecution, events at the trial, if there has been one, the judicial assessment of the defendant’s character and personality (always a critical feature in the assessment), the material in mitigation drawn to the attention of the court by the defendant’s advocate, the contents of the pre-sentence report, and any psychiatric or psychological assessment prepared on behalf of the defendant, or at the behest of the court itself, should not provide the judge with sufficient  appropriate information on which to form the necessary judgment in relation to dangerousness. 
38.	In this context, we draw particular attention to section 156(3) of the 2003 Act.  It is of course open to the court to conclude that a pre-sentence report is unnecessary, but the starting point is a requirement that such a pre-sentence report should be obtained, not only in relation to the offender aged under eighteen (as provided in section 156(5)) but for adult offenders both with and without previous convictions.  Our experience is that the often difficult assessment of dangerousness is greatly assisted by the pre-sentence report, both in the context of disputed facts, and in the assessment itself.
Conclusion in Considine and Davis
Considine
39.	Judge Alexander was fully justified in taking into account the evidence of the defendant’s pattern of behaviour towards his former partner which was before the jury, in the context in which he did, and he was equally entitled, indeed required, to reflect on his own assessment of the defendant as he observed him throughout the trial.  The assessment that the appellant was dangerous cannot be faulted.  The determinate sentence, although severe, was not wrong in principle or manifestly excessive.  If it had not been for the issue of principle raised by Lord Goldsmith, leave to appeal would have been refused on the basis of the reasons given by the single judge, Davis J.
“The applicant has a significant record of relevant offences of violence, starting in 1987 and continuing (with intervals) over the years.  That perhaps may not be enough to justify a sentence of IPP: but then there are the actual circumstances of these present offences coupled with the PSR (which indicated dangerousness and a significant risk of serious harm).  Further, I consider that the trial judge – who had heard the evidence of the complainant and the applicant – was entitled to make a factual assessment that there had been serious violence inflicted by the applicant on the complainant over the years; the judge was not basing himself solely on unsubstantiated contents in the bad character application.  Overall, I think the judge, applying Lang, justifiably concluded that the s229 presumption was not displaced. As to the notional determinate terms, given the circumstances (and given there could be no mitigation for a plea) I do not think a sentence of six years, even if can be said to be severe, can be said to be excessive”.
40.	We agree.
Davis
41.	The issue of principle arising from Farrar having been resolved as it has in  Considine, no issue of principle arises.  It was strongly argued before us that much of the content of the pre-sentence report amounted to little more than vain glorious boasting, perhaps to be expected of a young man with this applicant’s background and intelligence.  The judge took a different view.  We can see no reason for interfering with his conclusion.  Again, we shall repeat the observations of the single judge, Tugendhat J refusing permission to appeal:
“It is certainly striking that as a nineteen year old you have been sentenced to which is for practical purposes the same as a life sentence for an offence for which the determinate sentence has been fixed at eighteen months imprisonment.  But the judge found the statutory criteria to be fulfilled, and he gave his reasons in detail.  There can be no question but that, on the facts he sets out, he was correctly applying the statute in accordance with the guidance in Lang and Johnson ….the administrative problems that may follow from such a sentence are referred in Johnson in para 12.  But, as stated at para 11, “this court will not normally interfere with the conclusion reached by the sentencer who has accurately identified the relevant principles, and applied his mind to the relevant facts”.
42.	Again, we agree.