No: 200100657/Z3
Neutral Citation Number: [2001] EWCA Crim 1751
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Monday 16th July 2001
B E F O R E :

LORD JUSTICE BUXTON

MR JUSTICE HOLMAN

and

THE COMMON SERJEANT
(His Honour Judge Beaumont QC)
(Sitting as a Judge of the Court of Appeal Criminal Division)

- - - - - - - - - - - - -

R E G I N A

‑ v ‑

Edward KELLY

- - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040   Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - -

MR J STURMAN appeared on behalf of the Appellant
MR B WARNER appeared on behalf of the Crown

- - - - - - - - - - - - -
JUDGMENT
16th July 2001
1.	LORD JUSTICE BUXTON: The appeal of Edward Michael Kelly is one of a number of appeals that have come before this court in recent months in the case of persons who had been sentenced to life imprisonment under the provisions of section 2 of the Crime (Sentences) Act 1997 (now 109(2) of the Powers of Criminal Courts (Sentencing) Act 2000). All those appeals have arisen largely because of the judgment of this court, Lord Woolf CJ, in the case of Offen [2001] 1 Cr App R 372. The basis for the appeals is that in that case this court adopted a different analysis of the requirements of section 2 from that which had previously attracted this court.
2.	This appeal is, however, unusual in that Mr Kelly's case has already been adjudicated on by a division of the court presided over by Lord Bingham CJ, and that judgment was the subject of scrutiny by this court in Offen. Because Mr Kelly's case has already been adjudicated on by this court, it reaches us again not through the normal process of appeal, but by reason of a reference by the Criminal Cases Review Commission, which has provided the court with a most helpful 18 page analysis of the issues that the Commission now thinks to arise, in particular because of the view of section 2 taken by this court in Offen. Because of those circumstances it is necessary for this court to address, in somewhat more detail than in other circumstances might be required, the legal structure upon which Mr Kelly now bases his appeal and the relationship between the decision of this court in Offen and the earlier decision of this court in Mr Kelly's own case: which is indeed the authority in which the original view of section 2 is most conveniently encapsulated. In so doing, we are conscious that we may, to some extent, be placed in the position of comparing and discussing the decision of this court in Offen, made by a constitution presided over by Lord Woolf CJ, and the decision of this court in Kelly, made by a constitution of this court presided over by Lord Bingham CJ, but we conceive it to be our duty to face that task as best we can.
3.	We turn to the facts of the case. Mr Kelly was convicted after a trial in the Crown Court at Middlesex Guildhall in March 1998 of one count of causing grievous bodily harm with intent under section 18 of the Offences Against the Person Act 1861. The assault that he committed was to be classified as a “serious offence” for the purposes of section 2 of the Crime (Sentences) Act 1997. He had also committed a previous offence falling under that category, though as long ago as March 1980. In that previous offence he had pleaded guilty to three counts of robbery and one count of attempted robbery. He received a serious sentence of 14 years' imprisonment.
4.	The offence was indeed serious, not only in the terms of the Crime (Sentences) Act but also in the normal connotation of that expression. The robberies were committed with the use of firearms and, indeed, on one occasion this appellant discharged such a firearm, injuring two members of the public. His main mitigation, and a matter that is urged on his behalf before us, is that he was then only 19 years of age. His other co‑accused were men of 38 and 28, and it was reasonable to think that, grave though his conduct had been, he had, to somewhat extent, been brought into the original situation by the two older men.
5.	Since then Mr Kelly, although having a number of problems to which shall have in due course to allude, had not committed offences of violence. He, however, committed the present offence, that is the offence for which he was sentenced at the Middlesex Guildhall, in the following circumstances.
6.	The incident happened at a railway station in London where the gentleman who was the victim of Mr Kelly, a Mr Humphrey, had intervened in an incident as a member of the public, very properly and public spiritedly, where a group of about six youths were bullying, or otherwise offensively treating, a girl. Mr Humphrey's intervention appears to have diverted their attention from her to him. When they threw stones at him, he picked up such a stone and apparently threw it back at the boys, hitting one of them. A distinctly unpleasant situation developed between Mr Humphrey and the six youths.
7.	Mr Kelly had been on the opposite platform waiting for a train. He saw what was going on, crossed to the tracks on the other side and, although his original posture appeared to be that of a peace maker, what he did was to take Mr Humphrey by the neck and the two of them fell to the floor. It appears that, and it was Mr Kelly's case, he had been told by one of the youths that Mr Humphrey had attacked one of them, it possibly being suggested by the youth that the attack was a gratuitous one: though we know now, of course, that that was not so. Mr Humphrey ended up on the ground. Mr Kelly sat astride him and threw a number of punches in his face. The other youths joined in. The appellant got up and kicked Mr Humphrey in the face on a number of occasions, again the other youths taking part. Mr Humphrey suffered significant injuries, including a fractured right cheek bone, blurred vision and headaches.
8.	As we have seen, Mr Kelly did not indicate appropriate remorse at the trial, in that he contested the trial on the basis, as we understand it, that Mr Humphrey had been the progenitor and that such injuries as he had suffered had been caused by the group of youths. By their verdict the jury did not believe that account.
9.	The learned judge, Judge Fabian Evans (who, of course, had had the benefit of hearing the trial and then forming an accurate view of what had occurred) took the view, as he put it, that:
“In the circumstance the law requires me to pass a life sentence in accordance with the Crime (Sentences) Acts.
He said, and in the judgement of this court rightly said, that what are sometimes described as the Hodgson criteria, that is to say the criteria for the imposition of a discretionary life sentence identified by this court in the case of Hodgson 52 Cr App R 113, did not apply to a case covered by section 2. This case was prima facie covered by section 2 because Mr Kelly had committed two relevant serious offences, and only if there were exceptional circumstances could he not be sentenced to a period of life imprisonment. The learned trial judge said that Mr Kelly should serve at least four years, the specified period before the case could be considered by the parole board, that implying, though he did not specifically say this: that the appropriate determinate sentence, had Mr Kelly not been subject to the life sentence regime, would have been a period of six years' imprisonment.
We remind ourselves of the terms of section 2 of the 1997 Act which provides that when a person has been convicted of two serious offences, that is the case of Mr Kelly, the court shall impose a life sentence:
“Unless the court is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so.”
10.	Mr Kelly's original appeal to this court is reported in [1999] 2 Cr App R(S) 176, a tribunal presided over, as we have said, by Lord Bingham CJ. The matters that appear to have been urged on that court, in considering that there were in the case exceptional circumstances, were the youth of the offender when he committed the original offence, the gap between that offence and the index offence, and the difference in nature between the index nature and the previous offence: the present offence, serious though it was, being one to some extent entered into on the spur of moment and not for ulterior criminal motives, the previous offence being an organised calculated offence of robbery.
11.	It is clear that in considering whether exceptional circumstances existed to permit the court not to impose a life sentence Lord Bingham applied the test of exceptional circumstances, which was indeed adopted and accepted as correct by this court in the later case of Offen. In respect of that test Lord Woolf said this at paragraph 69 of the report:
“The leading authority as to the interpretation of section 2 prior to the coming into force of the 1998 Act is the decision of this court in R v Kelly. In that case the then Chief Justice, Lord Bingham, gave a construction of 'exceptional' which has been followed in later cases. He said:
'We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.'“
12.	Lord Woolf continued:
“No criticism of 'exceptional' was made by any of the counsel appearing in the appeals, and we consider that the issues which arise on the appeals do not cast any reflection upon its appropriateness now that the European Convention on Human Rights is part of our law. We therefore gratefully adopt it.
Lord Bingham then went on to explain that:
'To relieve the court of its duty to impose a life sentence under section 2(2), however, circumstances must not only be exceptional but such as, in the opinion of the court, justify it not imposing a life sentence, and in forming that opinion that Court must have regard to the purpose of Parliament in enacting the section as derived from the Act itself and the White Paper ...'“
13.	Lord Bingham in Kelly did not consider the matters to which we have referred to be exceptional. He pointed out that serious offences are unhappily often committed by young people, and there was nothing in the section to suggest that a distinction between the nature of the offending made a difference to the application or to the relevance of the section. He went on to say that he readily accepted that, but for the enactment of section 2, a life sentence would not have been imposed in Mr Kelly's case, but he continued:
“We must, however, accept ... that the object of section 2 was to alter the existing law by extending the power and imposing a duty to impose a life sentence.”
14.	From the material before the court the court added that it could not regard Mr Kelly as a man who, on the evidence available, presented no continuing threat or danger to the public. 
15.	We have to say, with respect, that we are not clear by any means that this court regarded the latter factor in that case as dispositive. As it seems to us, Mr Kelly was seen as a person who, by reason of the terms of the section alone, that is to say the two serious offences, qualified for a life sentence and indeed imposed on the court a duty to impose a life sentence, and only exceptional circumstances, none of which were present in the case as Lord Bingham so found, would permit that course not to be followed.
16.	That decision, and more particularly the decision in the case of Mr Kelly, and in other cases that thereafter followed it, gave rise to some criticism in academic circles, which we do not need to descend into. We do not need to do so because the matter was looked at afresh by this court in the case of Offen. In that case Lord Woolf CJ criticised the judgment of Lord Bingham CJ in Kelly in one particular respect. The court in Offen accepted, as we have seen, the definition of “exceptional circumstances” adopted by the court in Kelly, but it went on to say this at paragraph 72:
“Lord Bingham did not apply his reasoning, that it is necessary to have regard to the purposes of Parliament when considering whether there are exceptional circumstances. He applied it to the subsequent question of whether, assuming there are exceptional circumstances, they justify not imposing a life sentence. This has in some of the cases where section 2 has been applied accentuated the difficulties created by the section. We draw attention to this, since when deciding whether a situation is exceptional, we regard it as being of the greatest importance to have in mind the policy already identified which reflects the intention of Parliament. That is the rationale spelt out by Lord Bingham in the case of Buckland.”
17.	That rationale, spelt out by Lord Bingham in the case of Buckland, was adopted by this court in Offen. Lord Woolf at paragraph 3 of the judgment in Offen said this:
“In Buckland [2000] 1 WLR 1262 Lord Bingham of Cornhill CJ described the rationale of section 2 in these terms:
'The section is founded on an assumption that those who have been convicted of two qualifying serious offences present such a serious and continuing danger to the safety of the public that they should be liable indefinitely to recall to prison. In any case where on all the evidence it appears that such a danger does or may exist, it is hard to see how the court can consider itself justified in not imposing the statutory penalty, even if exceptional circumstances are found to exist. But if exceptional circumstances are found, and the evidence suggests that an offender does not present a serious and continuing danger to the safety of the public, the court may be justified in imposing a lesser penalty.'“
18.	The elements of that rationale are in our judgement (and we do no more than repeat what has been said by both Lord Bingham and Lord Woolf): (1) it is assumed by the statute that persons who are convicted of two qualifying offences present such a serious and continuing danger to the public that they should be liable to indefinite incarceration; (2) however, the court can impose a different penalty from a life sentence in such circumstances if (a) exceptional circumstances are found and (b) the evidence suggests that the offender does not present a serious and continuing danger to the public. That explanation, as it seemed to us, tracks and gives respect to the wording of section 2(2), which says that the court shall impose a life sentence in a qualifying case, unless there are exceptional circumstances relating to either of the offences or to the offender (our emphases).
19.	It is not, however, easy to see how in that exercise one does apply the rationale of the section as was set out by Lord Bingham in Buckland. As Lord Bingham there said, it is very difficult to see, for instance, that the fact that the index and the previous offence were committed a long period apart is
20.	“exceptional” in the terms of the definition adopted both in Kelly and in Offen. That factor, which we take simply as an example, is not, or at least is not obviously, exceptional in the case of offenders generally, or of offenders caught by the terms of section 2(2). So to hold would properly require an enquiry as to whether within either of those general categories that pattern of offending was not regularly, or routinely, or normally, encountered. Nor can it easily be seen to be a circumstance relating either to either of the offences, or to the offender. And, as it respectfully seems to us, that was the difficulty perceived by this court in the original appeal in Kelly.
21.	This difficulty was, however, confronted and solved by this court in the case of Offen, when, at paragraph 79 of the judgment, it expressed the test for exceptional circumstances identified by Lord Bingham in Buckland, to be not merely a justification for not acting on the assumption of liability to a life sentence required by section 2(2) to be drawn from the two qualifying offences; but also as a test or basis for not making the statutory assumption at all. The court said this:
“We would suggest that quite apart from the impact of the Human Rights Act [of 1998], the rationale of the section should be highly relevant in deciding whether or not exceptional circumstances exist. The question of whether circumstances are appropriately regarded as exceptional must surely be influenced by the context in which the question is being asked.
The policy and intention of Parliament was to protect the public against a person who had committed two serious offences. It therefore can be assumed the section was not intended to apply to someone in relation to whom it was established there would be no need for protection in the future. In other words, if the facts showed the statutory assumption was misplaced then this, in the statutory context was not the normal situation and in consequence, for the purposes of the section, the position was exceptional.”
22.	On this view the “exceptional circumstance” of the offender being someone in relation to whom it is shown there would be no need for protection in future is not merely something that in the words of section 2(2) justifies the court in not imposing a life sentence, which would seem to leave it open to the court nonetheless to impose a life sentence if so minded; but rather is seen by this court in Offen as a fact that prevents the section from applying at all: so that in those circumstances the court has no vires to impose a mandatory sentence.
23.	It is, however, important to emphasise the limits, as it respectfully seems to us, of the interpretation of section 2(2) adopted in Offen. (1) The statutory presumption that flows from the existence of two qualifying offences remains in place and has to be displaced in any given case. That is plain, and said in terms, in paragraph 99 of the judgment in Offen. (2) The burden of displacing the assumption is on the appellant. (3) That displacement may be achieved in a number of ways, including scrutiny of the offending and behaviour pattern, or positive psychiatric or other similar evidence. The latter category of evidence is likely to be required if the court is to be persuaded that the statutory presumption cannot apply. The criterion to be established is:
“No need to protect the public in the future.” (Offen paragraph 79). 
24.	Which is the same as:
“No significant risk to the public.”(Offen paragraph 103).
25.	We have to say in that context, and with appropriate deference, that in our judgement the Criminal Cases Review Commission has misunderstood one passage in Offen. In paragraph 10.16 of its statement of reasons the Commission says this:
“The Commission notes that the Court of Appeal has now expressed the view that 'whatever a person is convicted of an offence, there is always some risk that he or she may offend again. Equally, there are a significant number of cases in which two serious offences will have been committed where the risk is not of a degree which can justify a life sentence ... if in fact, taking account all of the circumstances relating to a particular offender, he does not create an unacceptable risk to the public, he is an exception to this norm.' This is in contrast with the approach adopted by the Court of Appeal in Kelly, where it was stated 'we cannot regard the appellant as a man who, on the evidence available when he was sentenced, presented no continuing threat or danger to the public'. (Commission's emphasis)” 
26.	Those quotations, and the emphasis of them, are taken not from what we might term the main part of the judgment in Offen, but from paragraphs 95 to 97 of that judgment. At that point of its judgment this court was addressing Articles 3 and 5 of the European Convention on Human Rights and in that context was considering solely the coherence of those Articles with what it described as the “norm” established by section 2. In describing how that norm should operate the court was plainly, in the passages emphasised by the Criminal Cases Review Commission, referring back to its previous analysis of the proper application of section 2 which was in the terms which we have already set out. In particular if, by its emphasis on “risk of a degree that can justify a life sentence” the Criminal Cases Review Commission is referring to the degree of risk that can justify the imposition of a discretionary life sentence, then that is, in our judgement, not a correct reading of Offen: as paragraph 99 in Lord Woolf's judgment in Offen demonstrates.
27.	We quite agree that the “no significant risk” formulation in Offen is in verbal terms more stringent a test than “no continuing threat or danger to the public” adopted in Kelly. But in our judgement that change does not have the significant weight or implication that the Commission may have ascribed to it.
28.	All that said however, it is our judgement that we are plainly bound to follow the judgment of this court in Offen, insofar as it takes a different view of the section from the view taken by the court in Kelly. We are faced with inconsistent decisions of previous courts. The second decision was not in any way per incuriam of the first, but contains a reasoned and careful critique of it; and, in any event, the second court in Offen was justified in departing from a previous decision if, in so departing, it was acting in favour of the liberty of the accused and his interests. That is the view taken in this court, for instance, in the case of Taylor [1950] 2 KB 368, per Lord Goddard CJ. And that is despite the singular fact that this court in Offen does not appear to us to have said in terms that Kelly was wrongly decided.
29.	We say by way of footnote that in his well‑judged submissions to us this morning Mr Sturman did not ask us either to rely on the further observations in Offen about the impact of the European Convention upon the construction of the statute, a matter that might have placed him in some difficulty in view of the date of Mr Kelly's conviction and the recent speeches in the House of Lords in the case of Lambert. Nor was it suggested that this court should revisit for itself the coherence of section 2(2) with the European Convention on Human Rights. That was a correct approach because Lord Woolf in Offen has already addressed in detailed terms that question and we are of course bound, so far as that is a matter of the terms of the European Convention relevant to this question, in the normal form by his conclusions. If there is any doubt about that approach we would refer with respect to the judgment in the Divisional Court in the case of Bright v Central Criminal Court [2001] 1 WLR at 682D‑G per Judge LJ, a decision that was cited with approval by the Civil Division of this court in the court of Kaya v The Haringay London Borough Council (unreported) 1st May 2001.
30.	With that lengthy introduction, which we have thought it appropriate to engage in both because of the previous decision of this court and also because of the valuable intervention of the Criminal Cases Review Commission, we turn at last to the present case in the light of the guidance given in Offen.
31.	Following the passage that we have already cited from Lord Woolf's judgment at paragraph 79 in Offen, Lord Woolf continued as follows:
“The time that elapsed between the two serious offences could, but would not necessarily reflect, on whether, after the second serious offence was committed, there was any danger against which the public would need protection. The same is true of two differing offences, and the age of the offender. These are all circumstances which could give to the conclusion that what could be normal and not exceptional in a different context was exceptional in this context.”
32.	We revisit then the circumstances of this case.
33.	We regard a gap between the two offences of the length of time, some 18 years as occurred in this case, as certainly being a potentially exceptional circumstance in the terms adopted by Lord Woolf. We also think it is of some relevance that the offences were of a different nature and that the second offence, deplorable though it was, did not have the element of planning and of professional criminality that characterised the first offence. Those factors taken on their own point in the direction, in our judgement, of Mr Kelly not qualifying as someone from whom the public needs protection in the future. That, however, is not necessarily sufficient, bearing in mind that this is something that has to be demonstrated on Mr Kelly's part.
34.	We ask ourselves what is the impact of the psychiatric evidence that we and the court below were shown? In the submissions to us and to the Criminal Cases Review Commission, but again not emphasised in Mr Sturman's submissions this morning, was the fact that there was available to the court below, that is to say to Judge Fabian Evans and potentially to the Court of Appeal, but not, because of administrative mistakes, in their hands, a further report from a Dr Brown who had examined Mr Kelly really for the purpose of a routine, as far as we can see, pre‑sentence report before he appeared at Middlesex Guildhall. He said this:
“This man is not mentally ill. His past history contains one single serious offence for which he served a long sentence. I do not think he qualifies to be categorised as a personality disorder/psychopathic disorder. He would appear to have had quite a serious drink problem, though not perhaps reaching the level of alcoholism. It would not seem that alcohol was a major factor in this offence. He does not abuse drugs. His present mental state does not warrant any particular psychiatric intervention. He is fit to cope with any punishment awarded by court.”
35.	It is suggested that had that report been available it might have had a significant impact on the court's assessment of Mr Kelly's situation under section 2(2). We do not agree. It is no criticism of Dr Brown to say that his report was written, as he says, without any knowledge of the nature of the offence, or of the history of the offending, or indeed of anything else about Mr Kelly, save for that which Mr Kelly told him. It was not written to address the present issue. We would say in general terms that when a report is sought to be relied on for the purpose of seeking to persuade the court that an otherwise qualifying offender should not be dealt with under section 2(2) it is very important that the person writing that report should be able to engage in a careful analysis of the offending behaviour and of the appellant's history drawn from original sources; because although we do not in this case wish to suggest that Mr Kelly did in fact saying anything to Dr Brown that was not accurate, in such a circumstance and because of the importance of the issues it is essential that the reporting physician, or whomsoever else it might be, has scrutinised the basic documents and information about the case.
36.	That was something that was done by the author of the report that was before the court below and was referred to by Lord Bingham, Dr Kennedy of the Chase Farm Hospital. He had the great benefit of having had dealings with Mr Kelly prior to his unfortunately coming before him in respect of his most recent offence. He also carefully read the witness statements and other material that was going to be before the court. That, if we may say so with due deference, was exactly the sort of basis that the court is likely to find helpful in a report of this sort.
37.	We have already said that in Mr Kelly's original appeal Lord Bingham and the other members of the court came to the conclusion on the basis of Dr Kennedy's report, that they could not be satisfied that Mr Kelly is a person who presented no continuing threat or danger to the public.
38.	Quite apart from the fact that, at least marginally, that may have placed the test too high, as we have already said, it is clear to us from the general structure of the judgment that that was not the basis upon which that court decided the matter, but rather referred to those considerations as some sort of support, or additional comfort, for the construction that they had already reached on the section and the implications of the two qualifying offences.
39.	For that reason it would not, in our judgement, be appropriate to enter upon a detailed analysis of what this court previously said about Dr Kennedy's view. What we have to do, in the light of the guidance given by Lord Woolf, is to look at the matter again for ourselves. We have considered the pre‑sentence report that was before the court which said that Mr Kelly was not an on‑going danger. Looking carefully at Dr Kennedy's report, he rightly draws attention to Mr Kelly's history of alcohol abuse, something it will be remembered that Dr Brown appreciated, but Dr Kennedy's view was that those bouts and also his tendency towards panic or agoraphobic attacks, which Mr Kelly unfortunately also suffers from, or did suffer from, did not have a psychiatric, and therefore a causal, connection with any rage or violence that Mr Kelly might have manifested. It is also the case that Dr Kennedy recognised that there had been domestic difficulties in Mr Kelly's life, but made the fair point, generally and from the medical point of view, that he had not resorted to violence, or at least there was no sign of him resorting to violence, in his domestic situation.
40.	The important point, so far as Dr Kennedy was concerned, was whether he was capable of controlling future addiction to alcohol and future difficulties by way of guidance and help that he sought. Dr Kennedy was no doubt impressed by the fact that Mr Kelly had indeed responsibly sought such help when he had had the advantage of advice from Dr Kennedy in 1993, not caused by any referral by the courts but through normal medical processes. Dr Kennedy's view was:
“From a psychiatric point of view, Mr Kelly could not be regarded as having a propensity for dangerous behaviour which is not amenable to treatment.”
41.	This court in the previous case of Kelly cited that sentence. It seems to us, with respect, that it is helpful to Mr Kelly, and not something that should cause the court concern. There is no enduring tendency towards violence in Dr Kennedy's view, and the condition in his view can be treatable and is likely to be treatable in view of Mr Kelly's good response to treatment in the past and the sensible way he has behaved in the face of relapses.
42.	We place considerable weight on Dr Kennedy's report, not just because of the informed basis upon which it is written, but because of his previous knowledge of the case, and, more particularly, of Mr Kelly's ability to control such difficulties as he has to prevent them manifesting themselves in violence. In so far as the index offence is concerned, although Mr Kelly had taken some amount of drink that day, there is no reason to think that it was precipitated by substance or alcohol abuse on his part.
43.	Therefore this is a case where the court is persuaded that, in the terms of the judgment of Offen, there is no need for incarceration to protect the public in the future, and that there is no significant risk to the public. Granted that we come to those conclusions, in the light of the guidance given in Offen we no longer have vires to impose a life sentence. We, therefore, allow this appeal and quash the life sentence. Our reasons for not imposing a life sentence as we are required to give by the statute are those that we have set out.
44.	The question then arises as to what should now happen. His Honour Judge Fabian Evans, although not giving a detailed judgment on the matter, imposed a minimum term that implied that a sentence of six years would have been imposed had this not been a life sentence case. This was a serious offence. Although some point is made that Mr Kelly did not start the incident, it is undoubtedly the case that he gratuitously joined in a situation where the victim was already under pressure from a gang of people behaving disgracefully in a public place, in circumstances in which his presence would have given them aid and comfort. It was, therefore, a very serious lapse on his part. It has caused severe injuries. It involved, in particular, kicking a man on the ground, which is something that this court particularly deplores because it can lead to very serious injuries as this case demonstrates. He does not have the benefit of a guilty plea, which undoubtedly would have assisted him in this case. Therefore it is understandable why the learned trial judge, who had heard the trial, thought that the matter must be marked with a degree of seriousness.
45.	However, taking all the considerations into account, and giving some weight to the fact that Mr Kelly has for a long period of time been under the shadow of a sentence of life imprisonment, which is of course now quashed, we think that the correct sentence of a determinate nature in this case is that which Mr Sturman in his cogent skeleton asks us to impose, that is to say one of five years' imprisonment. We therefore allow the appeal to the extent of quashing the life sentence and substituting for it a sentence of five years' imprisonment.
46.	We understand that that may have the effect of Mr Kelly's immediate, or nearly immediate, release, but that is not a consideration that has weighed with the court.