No: 200102523/Z3
Neutral Citation Number: [2001] EWCA Crim 2918
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Thursday 13th December 2001
B E F O R E :

LORD JUSTICE MAY

MR JUSTICE GOLDRING

and

MR JUSTICE GROSS

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R E G I N A

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Ian TURNER

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
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MR E FITZGERALD QC appeared on behalf of the Appellant

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JUDGMENT
13th December 2001
1.	MR JUSTICE GROSS: This matter comes to this court by way of a reference from the Criminal Cases Review Commission (“CCAC”) pursuant to its powers under the Criminal Appeal Act 1995.
2.	The circumstances are these. On 20th December 1997 the appellant was involved in an incident with a Mr Newbould. On 14th July 1999 the appellant was convicted by a jury, following a trial in the Crown Court at Sheffield before His Honour Judge Swanson, of a single offence of wounding Mr Newbould with intent contrary to section 18 of the Offences Against the Person Act 1861. The appellant was then 54 years old.
3.	As it apparent from the sentencing remarks of the learned trial judge, had matters rested there the appellant would have received a sentence of three and a half years' imprisonment. Unfortunately for the appellant, as Rougier J put it when this matter was previously before the Court of Appeal:
“This conviction represented a disaster for the applicant by reason of the fact that in February 1967, when he was only 22 years old, he had been convicted of manslaughter and sentenced to three years' imprisonment. ...
Despite the fact that, apart from one immaterial motoring conviction in the intervening period, the applicant had committed no other offence, he nevertheless was liable to a mandatory sentence of life imprisonment [in respect of this offence] by virtue of section 2 of the Crime (Sentences) Act 1997.” 
4.	Such a mandatory life sentence was indeed imposed by the learned trial judge on 16th September 1999.
5.	Section 2 of the 1997 Act, now section 109 of the Powers of Criminal Courts (Sentencing) Act 2000, provides as follows:
“(1) This section applies where --
(a) a person is convicted of a serious offence committed after the commencement of this section; and
(b) at the time when that offence was committed, he was 18 or over and had been convicted in any part of the United Kingdom of another serious offence.
(2) 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.”
6.	It is not in dispute that both the 1967 manslaughter and the 1997 section 18 wounding fell within the definition of serious offence. We shall turn to the present understanding of the law in a moment.
7.	On the then existing state of the authorities both the learned trial judge in September 1999 and this court, when dealing with the appellant's renewal of his application for leave in March 2000, regarded a mandatory life sentence as inescapable. Both courts found this prospect distasteful. In the Court of Appeal Rougier J said this:
“in the result, we feel constrained to hold that the facts of this case do not reveal any special circumstances within the restricted ambit of that phrase suggested by the statute and the authorities. This is a conclusion that we reach with every bit as much distaste as did the trial judge. This seems to us to be a prime example of the type of injustice which the Act can bring about.”
8.	Underlying this disquiet was not simply the need to impose a mandatory life sentence in circumstances when a discretionary life sentence would not have been imposed. In addition, the courts drew attention to the fact that section 2 of the 1997 Act, unlike section 3 and 4 of that Act, dealing respectively with mandatory sentences for class A drug trafficking offences and domestic burglary, contained no exception for the prescribed penalty being unjust in all the circumstances. As Rougier J observed:
“Faced with this manifest distinction between successive sections in an Act of Parliament, it is difficult, if not impossible, to avoid the conclusion that Parliament must have realised, and even intended that a judge might be compelled by the terms of section 2 to pass a sentence which would offend his sense of justice. Since the statute has no application outside the criminal courts, this must surely be a remarkable state of affairs ...”
9.	In the event the Court of Appeal was constrained to refuse the present appellant leave to appeal. There the matter would have had to rest but for developments in the case law and the intervention of the CCRC.
10.	As to the case law on section 2 it discloses an evolution from what must now be regarded as an unduly narrow approach to the meaning of “exceptional circumstances” to a more flexible approach aimed at ensuring that section 2 operates in a proportionate manner.
11.	The progression has involved the interpretation, or re-interpretation, of Kelly [2000] QB 198 and subsequent authorities commencing with Buckland [2000] 1 WLR 1262 and to be found in particular in Offen [2000] 1 Cr App R 372, itself applied in McDonald [2001] Crim LR 497. It is noteworthy that the decision in Kelly itself was revisited by this court in 2001 EWCA/1751, which we refer to hereafter as Kelly 2, and the mandatory life sentence quashed following the reference by the CCRC. Additionally, Kelly 2 contains a further and, if we may say so, helpful analysis of the previous authority: see, too, Archbold 2002 paragraph 5-222. The upshot in a nutshell is that the mandatory life sentence in this case, inevitable in the light of the first Kelly, requires reconsideration.
12.	For our purposes we take the law on section 2 as now being settled by Offen and Kelly 2 which we propose and are bound to follow. In these circumstances, it is unnecessary for us to do more than furnish a short working summary as follows.
1. The rationale of section 2 is 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 to indefinite imprisonment. That is indeed the norm. The aim is not to increase the time offenders spend in prison as a punishment for the offences they have committed, but to provide for an assessment to be made to see whether the offender poses a real risk to the public in which event his release is deferred.
2. This rationale of section 2 is relevant as to both (i) whether exceptional circumstances exist, and (ii), if so, whether they justify not imposing a life sentence.
3. Accordingly, if, on all the facts the statutory assumption is misplaced because there is no need for protection from the offender in the future, then the position is “exceptional”. Put another way, it follows that if the offender is someone in relation to whom it is shown that there would be no need for protection in the future then section 2 has no application.
4. The position with regard to section 2 is not equated with that pertaining to the consideration of discretionary life sentences. The statutory presumption found in section 2 remains in place. The burden of displacing it rests on the appellant. Whether that burden is satisfied depends on all the facts and the evidence.
5. The fact that there is a long time interval between the two qualifying offences is capable of constituting exceptional circumstances but will not, of course, necessarily do so.
6. Approached in this way the intention of Parliament is given effect through the statutory norm, or presumption, contained in section 2 but this flexible interpretation of “exceptional circumstances” permits the section to be operated in a proportionate manner, compatible with the Human Rights Act 1998.
13.	Against this background the CCRC has helpfully referred the sentence in the present case to this court. The relevant facts are these. 
1. As to the 1967 conviction for manslaughter much of the paperwork has been lost. What remains discloses the following circumstances relating to that offence as summarised by the CCRC Statement Of Reasons paragraph 1.6:
“In 1967, when he was 22 years old, Mr Turner had been convicted of manslaughter and sentenced to three years' imprisonment. The Commission understands that the papers relating to this conviction have been lost, but according to the Court of Appeal judgment, there is a handwritten note on Mr Turner's antecedent record, author unknown, to the effect that the conviction resulted from a street punch-up.
The note reads: 'accused pushed by other youths; he ran after two youths, knocked one down and then knocked down the other 20 years old youth and kicked him in the head, causing serious injuries'.” 
14.	Tragically those injuries caused death.
2. So far as the 1997 offence is concerned, we again take the facts from the helpful summary in the CCRC's Statement of Reasons paragraphs 1.1 to 1.2:
“During the afternoon of 20th December 1997, Mr Turner was at the Meltham Liberal Club [there is some doubt in the evidence whether it was the Liberal Conservative Club but it matters not] when he got into a heated amount over a trifling sum of money with a Mr Newbould. As soon as Mr Turner became abusive, Mr Newbould went home. He had not been there long when Mr Turner arrived at the kitchen door, anxious to continue the argument. Mr Newbould told him to return when he was sober and went to close the door, whereupon Mr Turner struck him in the face, knocking Mr Newbould's glasses off. The prosecution case was that, as Mr Newbould put his hands out to steady himself, he happened upon a kitchen knife. Without his glasses, it appeared to him that Mr Turner was coming towards him. Mr Newbould lashed out at Mr Turner with the knife, pushing him back into the garden. This caused Mr Turner to lose his temper, and he struck Mr Newbould on the head several times, knocking him to the grounds, whereupon he continued to strike him with a piece of wood.
1.2. The 7 cm laceration to Mr Newbould's head required ten stitches. He suffered further lacerations to his ear and nose, and he suffered considerable swelling and abrasions to his face, arms and hands.”
15.	The defence was self-defence which failed for whatever reason and notwithstanding that Mr Newbould's knife had inflicted a cut to the appellant's face.
3. In the intervening period of some 30 years between the 1967 and 1997 offences, apart from a motoring conviction described by the Court of Appeal on the last occasion as “immaterial”, the appellant had committed no other offences.
4. The pre-sentence report talked of the appellant's regret. It spoke to him being popular in the village and sometimes taken advantage of. Whatever the background between him and the victim, there had not been problems subsequent to the incident when prior to the appellant's imprisonment both had remained in the same village.
16.	The probation officer stated his assessment in the following terms: 
“... Mr Turner is unlikely to offend in the future and although there was a high level of violence used there is nothing to suggest that he presents as a danger to the community. On the contrary his friends view him as an easy going and gentle person.”
5. The pre-sentence report's assessment of the appellant's popularity in the village is supported by the number of character references before the court speaking warmly of him.
6. When sentencing the appellant the trial judge dealt with him in the following terms:
“I sentence you on the basis that you are not a dangerous man. Over 30 years have elapsed since the two serious offences. I sentence you on the basis that there is no evidence that you would be likely to reoffend. I sentence you on the basis that if it were not for the Crime Sentences Act I would treat you as a man effectively of good character, and I sentence you on the basis that you are a popular man in your village, you are locally considered to be a decent man, and indeed the victim in this case had previously and far more recently than you, been convicted of a serious offence.”
17.	Having weighed all the circumstances, the learned judge said, as we have already mentioned, that the sentence he would have imposed on the appellant, but for the provisions of section 2, would have been three years and six months' imprisonment. The period to be served before the appellant could be considered for release by the parole board was specified as 21 months. 
7. Finally we have been helpfully and properly supplied with a psychiatric report dated 4th November 2001 prepared by Dr Adrian Grounds of the University of Cambridge, Institute of Criminology. He interviewed the appellant in prison on 14th September 2001 and from his careful list of source materials clearly had the relevant issues well in mind. Dr Grounds' conclusion was succinctly expressed:
“... I do not think Mr Turner posed a significant risk to others at the time he was sentenced, and he does not pose a significant risk to others currently.”
18.	We do not in any way seek to diminish the seriousness of the 1997 offence, or, for that matter, the 1967 manslaughter. The 1997 offence plainly merited a substantial sentence of imprisonment, as the judge made clear. That said, we are persuaded by the facts to which we have referred that, however precisely the test is formulated, the appellant neither presents a significant risk to the public in the future, nor a continuing threat or danger to the public. In coming to this conclusion we have taken into account all the circumstances, including the time interval of some 30 years between the two qualifying offences, a period free of any material criminal conduct. 
19.	Accordingly, there are here exceptional circumstances, as that wording is now to be understood. It follows that the appellant has succeeded in displacing the statutory assumption contained in section 2. It follows, further, that the appeal is allowed and the mandatory life sentence is quashed. In compliance with section 2(3) of the 1997 Act we state that we are of the opinion that a life sentence should not be imposed. The exceptional circumstances have already been identified. In place of the mandatory life sentence we impose the sentence that the trial judge regarded as just and would have imposed had he been free to do so, namely three years and six months' imprisonment.