“Exceptional Departure”: When Severe Mental Ill-Health Justifies a Community Order for s.278 Sexual Offences – Commentary on IAG, R. v [2025] EWCA Crim 1087

1. Introduction

IAG, R. v ([2025] EWCA Crim 1087) is a Court of Appeal (Criminal Division) decision that grapples with the boundary between public protection, retribution and rehabilitative justice when an offender’s severe psychotic illness is directly causative of grave sexual offending. The case arose from a reference by the Solicitor-General, contending that a series of community orders for child sexual offences was “unduly lenient”. The Court rejected the reference and, in doing so, articulated fresh guidance on the exceptional circumstances in which:

a court can depart beyond the Guideline range for s.6 Sexual Offences Act 2003 (assault of a child under 13 by penetration),
impose a non-custodial sentence even though the offence is one that ordinarily attracts a “special custodial sentence for offenders of particular concern” (s.278 Sentencing Code), and
withstand a reference for perceived leniency under s.36 Criminal Justice Act 1988.

At its core, the judgment underscores that markedly reduced culpability attributable to a diagnosed and untreated psychotic/manic episode can justify a community-based disposal, notwithstanding the seriousness of the index offence.

2. Summary of the Judgment

Lord Justice Holroyde (Vice-President CA(Crim)) refused the Solicitor-General’s application, finding the sentence “lenient, but not unduly so.” The Court held that:

The trial judge’s primary finding that the offender’s schizoaffective disorder “greatly reduced” his culpability was open to her on the uncontested expert evidence.
Given that reduction, the judge was entitled to move outside the default guideline starting point (6 years) and to substitute concurrent two-year community orders with rehabilitation activity requirements (RAR). The community order was viewed as offering a better rehabilitative prospect while preserving powers to resentence in the event of breach.
Although s.278 creates a presumption of a special custodial sentence for assault by penetration of a child, the Court accepted that a non-custodial outcome can be imposed “on rare occasions”. This was one of those rare cases.
Accordingly, leave to refer was granted (because the case raised important issues) but the substantive application to increase the sentence was refused.

3. Analysis

3.1 Precedents Cited

R v John (Ben) [2022] EWCA Crim 54
Reaffirms that suspending the “special custodial sentence” under s.278 is only permissible where the custodial term does not exceed 12 months. Holroyde LJ reminded practitioners of this authority, criticising its earlier omission before the trial judge.
Sentencing Council Guidelines
• “Assault of a child under 13 – penetration” (definitive)
• “Sexual offences – Sentencing offenders with mental disorders” (2019)
• “Imposition of Community and Custodial Sentences” (Imposition Guideline)
While no earlier unduly lenient authorities are expressly cited, the Court implicitly applies the classic test in Attorney-General’s Reference (Nos 14 & 15 of 2006): the sentence must be “outside the range within which the judge could reasonably have imposed it.”

3.2 Legal Reasoning

The Court’s reasoning proceeds in three linked stages:

Establishing Culpability Reduction
Dr Bose’s psychiatric evidence demonstrated a causal link between the severe manic episode and the disinhibited sexual acts. Applied within paragraph 15 of the Sentencing Council’s mental disorder guideline, each of the suggested questions—diagnosis, impairment, link, genuine condition—was answered in the affirmative. This justified a substantial downward shift in culpability.
Applying the Guideline Flexibly
Starting from Category 3A (6 years), the judge:

moved to the “very lowest end” because the penetrative act was brief and without additional aggravators,
gave a further exceptional reduction for mental disorder, and
took account of 7½ months’ remand time (treated as time served).

Choosing Sentence Type
The Imposition Guideline directs sentencing courts first to consider whether a community order can achieve the aims of sentencing. The judge concluded it could: rehabilitation would be advanced through mandatory engagement, public protection maintained by SHPO and restraining order, and punitive weight partly satisfied by prior remand, curfew, and the stigma of conviction. The Court of Appeal found no error in that evaluative decision.

Importantly, Holroyde LJ distinguished between:

an “exceptional circumstance” justifying suspension of a s.278 sentence (generally discouraged by John), and
an “exceptional case” where the offender’s culpability is so reduced that even the baseline custodial threshold is not required. The instant case falls into the latter category.

3.3 Impact and Future Significance

This decision will resonate across three domains:

Sentencing Practice for Mentally Ill Defendants
The judgment supplies an authoritative example of how far the courts may depart from guidelines when there is a direct causal nexus between serious mental illness and offending. It signals that community-based disposals remain an option, even for inherently serious, Schedule 18B offences.
s.278 “Special Custodial Sentences”
While John limited the suspension of such sentences, IAG clarifies that the court can instead impose an alternative non-custodial penalty ab initio, provided the custodial threshold itself is not crossed due to reduced culpability.
Unduly Lenient References
Prosecuting authorities are cautioned that a sentence which appears lenient on its face may nevertheless survive review if it is the product of a properly reasoned excursus through the mental disorder guideline.

4. Complex Concepts Simplified

Section 278 Sentencing Code – Creates a “special custodial sentence for offenders of particular concern” (SCPOPC). For certain child sex offences, the court must impose (a) a custodial term + (b) an additional 12-month licence unless an alternative is lawfully chosen in wholly exceptional circumstances.
Community Order – A non-custodial sentence with one or more requirements (e.g., Rehabilitation Activity Requirement, unpaid work, curfew). Breach can result in re-sentencing, including custody.
Rehabilitation Activity Requirement (RAR) – A flexible provision empowering probation to direct the offender to attend treatment, programmes or mentoring up to the specified maximum days.
Schizoaffective Disorder, manic type – A psychiatric condition featuring mood disorder (mania) plus psychotic symptoms (hallucinations/delusions). Manic phases can entail risky, disinhibited conduct.
Unduly Lenient Sentence (ULS) Reference – Under s.36 Criminal Justice Act 1988 the Attorney/Solicitor-General may invite the Court of Appeal to increase a Crown Court sentence that falls outside the reasonable range of sentences.

5. Conclusion

IAG, R. v is not a carte-blanche for avoiding imprisonment where s.278 applies. It is, however, a landmark confirmation that culpability, not merely harm, drives sentence selection. Where psychiatric evidence incontrovertibly links a severe mental disorder to an otherwise grave offence, the sentencing judge may:

depart below the guideline range;
eschew an immediate custodial term; and
survive an unduly-lenient challenge,

provided that the reasoning is transparent, evidence-based, and proportionate. For advocates, the case doubles as a salutary reminder to cite relevant authority at first instance, especially on the intricacies of the Sentencing Code. For sentencing judges, it re-emphasises the balancing act between public confidence and the rehabilitative imperative where profound mental illness is at play.