Supreme Court Clarifies Law in Relation to IPPs

Tim Barnes QC was leading counsel for the Appellant in the recent Supreme Court case of R v Smith [2011] UKSC 37. The issue in the case was whether a defendant already subject to the licence recall provisions under an existing life sentence could be sentenced to imprisonment for public protection, “an IPP”, for offences committed while at liberty on licence.

Tim argued that the qualifying condition for an IPP was not satisfied in that it could not be said that there was ‘a significant risk to members of the public of serious harm occasioned by him of further specified offences’, (the criterion under section 225(1)(b) of the Criminal Justice Act 2003.) There was no risk to the public, so it was argued, in that the defendant would remain in custody pursuant to the licence recall provisions until the Parole Board decided it was safe to release him. Alternatively it was contended that the sentencing judge should not have exercised his discretion under section 225(3) of the 2003 Act to impose an IPP in a case where the defendant was subject to a life sentence recall as it would therefore achieve no additional purpose.

Despite “advancing the Appellant’s grounds with admirable clarity” (as per Lord Phillips), the arguments did not succeed. The Supreme Court ruled that, “it is implicit that the question posed by section 225(1)(b) must be answered on the premise that the defendant is at large. It is at that moment that the judge must decide whether, on that premise, the defendant poses a significant risk of causing serious harm to members of the public.” On the ‘discretion’ ground, the court expressed “some sympathy with this submission”, noting that it would not be sensible to impose a sentence of IPP in circumstances where it will achieve no benefit, but ultimately it did not feel that it could condemn the sentence imposed in this case.

The case is reported in today's Times. You can read the full judgment here.