CRIMEAutomatic life sentence - second serious offence - defendant's lack of risk to public amounting to exceptional circumstanceR v Offen; R v McGilliard; R v McKeown; R v Okwuegbunam; R v S: CA (Lord Woolf CJ, Steel and Richards JJ): 9 November 2000In the first four cases, the defendants were sentenced to life imprisonment pursuant to s.2 of the Crime (Sentences) Act 1997 following conviction of a second serious offence, the judge having found that there were no exceptional circumstances justifying not imposing such a sentence.

In the fifth case, the defendant was convicted of a second serious offence within s.2 but was sentenced to 12 years' imprisonment on the ground that there was an exceptional circumstance justifying not imposing a life sentence since the second offence fell into a totally different category from the first.

Each defendant appealed against sentence and, in the fifth case, the Attorney-General sought leave to refer the sentence to the court under s.36 of the Criminal Justice Act 1988 as being unduly lenient.Edward Fitzgerald QC and Phillippa Kaufmann (instructed by Moss & Co) for the defendant in the first case.

Joel Bennathan (assigned by the Registrar of Criminal Appeals) for the defendant in the second case.

Christopher Knox (assigned by the Registrar of Criminal Appeals) for the defendant in the third case.

Edward Fitzgerald QC and Daniel Friedman (instructed by Bindman & Partners) for the defendant in the fourth case.

Alastair Edie (instructed by Tyndallwoods, Birmingham) for the defendant in the fifth case.

David Perry (instructed by Crown Prosecution Service Headquarters) for the Crown.Held, allowing the appeals in the first and third cases, dismissing the other appeals and substituting a life sentence in the fifth case, that s.2 of the 1997 Act did not breach art.7(1) of the Convention for the Protection of Human Rights, as incorporated into domestic law by the Human Rights Act 1998, by retrospectively aggravating the penalty for a first serious offence committed before the Act came into force since the penalty of the automatic life sentence was imposed for the second serious offence and the penalty imposed for the first offence remained the same; that the imposition of a life sentence under s.2 could contravene arts 3 and 5 of the Convention if it were wholly disproportionate to impose such a sentence in order to protect the public; that s.2 would not breach the Convention if it were applied so as to give effect to the intention of Parliament that the public should be protected from those who committed two serious offences; that therefore, if, taking into account all the circumstances, a particular defendant did not constitute a significant risk to the public, that was an exceptional circumstance justifying not imposing a life sentence; and that, accordingly, the fact that the offences were of a different kind, or that a long period had elapsed between them during which the defendant had not committed other offences, or the defendant's age, could be relevant in assessing the degree of risk posed by a defendant (WLR).