Practice and Procedure


PUBLISHED February 20, 2003

A discretionary life sentence would be imposed where an offence was grave and merited a long sentence for the protection of the public.Application by the Attorney-General to refer a sentence under s.36 Criminal Justice Act 1988. On 5 September 2002 at Preston Crown Court before HH Judge Bradley the defendant ('H') pleaded guilty to two offences of arson and being reckless as to whether life was endangered. On 14 October 2002 HH Judge Proctor sentenced H to 5 years imprisonment and ordered him to serve 12 months of an unexpired portion of a previous sentence for arson. That offence occurred in 1998. H lived with his wife, a lodger and a three-year-old child they cared for. H was an alcoholic. Following a row with his wife, he set fire to the ground floor of the property. Noone was injured as the lodger managed to rescue the child. On 21 December 2001, H was released from prison after serving part of his sentence. On 15 June 2002, a fire was reported in H's flat. The fire brigade attended and it was discovered that the fire was started deliberately. Noone was hurt but an 81-year-old woman who lived in the top floor flat might have been. H did not call the fire brigade, but claimed that he had told the police who did not take him seriously. On 16 June 2002, another fire was reported. The fire brigade discovered it had, again, been started deliberately in the bedroom. Two people had to be evacuated and were treated for smoke inhalation. H did not call the fire brigade but told the police and said that he wanted to go back to prison. The sentencing judge had psychiatric reports which stated that he had intended to cause harm and wanted to go back to prison. H had 34 previous convictions for 54 offences dating back to 1974 and had spent the majority of his adult life in prison. The Attorney-General referred the sentence on the ground that the judge should have imposed a discretionary life sentence commensurate to powers under s.80(2)(b) Powers of Criminal Court Sentencing Act 2000 as H was likely to commit further offences and was a danger to the public.HELD: (1) In Attorney-General's Reference (No.32 of 1996) sub nom R v Whittaker (1997) 1 CAR(S) 261 the then Lord Chief Justice, Lord Bingham, set out the necessary conditions for the courts to impose life imprisonment where a mandatory life sentence was not available. (2) Those conditions were present in this case. There was no doubt that the offence was potentially dangerous and grave meriting a long term and it was necessary to protect the public. (3) The court would exercise its powers and substitute a life sentence for each offence. The determinative portion of each sentence was always somewhat less than in cases where life was not imposed to take into account the effect of a life sentence. The determinative period would therefore be seven years.Application allowed.