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On appeal from:  [2010] EWCA Crim 530

The issue was whether it was appropriate to impose a sentence of imprisonment for public protection (a ‘SIPP’) upon a defendant who had been recalled upon a life sentence. The appellant, Mr Smith, had a number of convictions for robbery. On 24 January 2000 he received a mandatory sentence of life imprisonment upon further such convictions, with a minimum term of four years. He satisfied the Parole Board that he should be released on 25 September 2004 but was arrested in 2008 on suspicion of having committed eight armed robberies between 2006 and 2007. His arrest resulted in his recall to prison under his life sentence for breach of his licence conditions. He pleaded guilty to the offences and was sentenced on 10 October 2008 to a SIPP with a minimum term to be served of six years.

Mr Smith appealed against the imposition of the SIPP on two alternative grounds. The first was that it was unlawful because the judge could not have been satisfied for the purposes of the Criminal Justice Act 2003, s 225 that he represented a significant risk to the public, given that he had been recalled to prison under his life sentence and would have to satisfy the requirements of the Parole Board before he could be released. The second was that the judge should not have exercised his discretion under s 225 to impose the SIPP when it would achieve no additional benefit.

The Supreme Court unanimously dismissed the appeal. It held that the imposition of the SIPP on Mr Smith was both lawful and open to the sentencing judge in the exercise of his discretion. Lord Phillips ruled that according to the wording of s 225 (1) (b) the judge had to assess the risk on the premise that the defendant was at large the moment the sentence was passed. It would be unrealistic to require the judge to form of a view of the position at the end of the minimum term of imprisonment. Regarding the exercise of discretion, although it was not sensible to impose a SIPP in the circumstances, it enabled the sentencing court to express its finding that Mr. Smith satisfied the dangerousness provisions of the Criminal Justice Act 2003.

For judgment, please download: [2011] UKSC 37
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII