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IPP sentences can be replaced with life, Lord Chief Justice rules

6 October 2009

The Lord Chief Justice, Lord Judge, has ruled that indeterminate sentences for public protection (IPPs) can be replaced with life sentences in “exceptional” cases.

Giving judgment on behalf of the Court of Appeal in R v Bennett [2009] EWCA Crim 1925, Lord Judge said that life imprisonment remained “the ultimate sentence”, to be reserved for the most serious and grave cases.

“Where a reasonable judgment is that the sentence arguably does not reach or does not quite reach that level of seriousness, an IPP would not be unduly lenient,” he said.

“Where, however, the case is plainly so serious that a sentence of life imprisonment is indeed required, then it is in our judgment unduly lenient for any lesser sentence (including an IPP) to be imposed.

“Given the delicacy and difficulty of making the necessary judgment, we accept that these cases will be exceptional.

“Nevertheless where the only realistic conclusion is that a discretionary sentence of life imprisonment should have been imposed, then this court will interfere even with an IPP and replace it with life imprisonment.”

Lord Judge described Bennett as a “dangerous predatory paedophile”. The court heard that his convictions include indecent assault on an 11-year-old boy, rape of a 13-year-old boy and taking away another child without lawful authority.

His latest victim was a boy, aged 12, who was not only raped but strangled until he became unconscious.

“Thinking that he had killed him, the offender left the boy for dead,” Lord Judge said. “In an interview the victim said ‘if it would have been an extra ten seconds of him doing that, I would have ended up dead’. That was not an exaggeration.”

Lord Judge said Bennett’s previous record demonstrated not merely a total failure to respond to previous sentences, but that he was a “merciless offender”, whose crimes were escalating in seriousness.

“On this occasion the boy’s survival was a matter of good fortune.”

The case was referred to the Court of Appeal by the Attorney General under section 36 of the Criminal Justice Act 1988, on the grounds that it was “unduly lenient”.

The judge at first instance concluded that the offences were not sufficiently serious to justify a life sentence, and imposed an IPP sentence with a minimum specified period of ten years.

In a further group of cases including R v Wilkinson, heard at the same time as R v Bennett, Lord Judge said it was clear as a matter of principle that discretionary life sentences should continue to be reserved for offences “of the utmost gravity”.

He went on: “Without being prescriptive, we suggest that the sentence should come into contemplation when the judgment of the court is that the seriousness is such that the life sentence would have what Lord Bingham observed in Lichniak [2003] 1 AC 903, would be a ‘denunciatory’ value, reflective of public abhorrence of the offence, and where, because of its seriousness, the notional determinate sentence would be very long, measured in very many years.”

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