Abduction in Sexual Assault Sentencing and the Near‑Mandatory Use of Pre‑Sentence Reports in Dangerousness Assessments: Commentary on R v Thompson [2025] EWCA Crim 1462

1. Introduction

The decision of the Court of Appeal (Criminal Division) in R v Thompson [2025] EWCA Crim 1462 is an Attorney General’s Reference concerning an allegedly unduly lenient sentence imposed for serious sexual offences, including rape. Although the court ultimately declined to increase the sentence, the judgment is doctrinally important for at least three reasons:

It clarifies that driving a complainant, contrary to her wishes, to a secluded location for a sexual assault constitutes “abduction” for the purposes of the Sexual Assault Sentencing Guideline, thereby elevating harm to Category 1.
It strongly re‑affirms and sharpens the requirement under s.30 of the Sentencing Act 2020 to obtain a pre‑sentence report before deciding that an offender convicted of rape is not dangerous, particularly where there is a history of specified violent offending.
It articulates a clear prosecutorial duty to intervene where a sentencing judge proposes to decide dangerousness in such cases without the benefit of a pre‑sentence report, describing that as an error of law.

The case concerns the sentencing of Cory Thompson, then aged 29, who was convicted after multiple trials of:

Sexual assault of a 17‑year‑old complainant (V1) on 4 July 2021 (count 4); and
Vaginal rape of a 23‑year‑old student (V2) on 5 March 2022 (count 6).

The Solicitor General sought leave to refer the sentence as unduly lenient under s.36 Criminal Justice Act 1988. The Court of Appeal (Edis LJ giving the judgment) granted leave but dismissed the reference.

2. Summary of the Judgment

2.1 The offences and sentence at first instance

At Derby Crown Court on 19 December 2024, His Honour Judge James Carter sentenced Thompson as follows:

Count 6 (rape of V2): 8 years’ imprisonment.
Count 4 (sexual assault of V1): 1 year and 3 months’ imprisonment, consecutive.

The total term was therefore 9 years and 3 months’ imprisonment. Consequential orders (such as notification requirements and restraining orders) were made but were uncontroversial and left undisturbed.

Key facts:

V1 (sexual assault): Thompson misrepresented himself as a lift home, pressured her to drink, then drove her to a secluded lakeside car park, pushed her against the car window, grabbed her face/neck and forcefully kissed her. He then sent threatening messages when she rejected further contact.
V2 (rape): After consensual social contact in her university accommodation, Thompson persisted in demanding sex despite repeated refusals. When she hit him to make him stop, he laughed and hit her back “twice as hard” to the face, then carried her to the bedroom, pulled down her clothing and raped her without a condom. She later made a delayed report after seeing media coverage of other charges against him.

At the time of the rape, Thompson:

Was on bail for dangerous driving; and
Knew he was already under police investigation for multiple sexual offences, including the offence against V1.

He had substantial prior convictions, notably serious robberies involving an imitation firearm in 2013–2014, for which he had received 84 months’ detention and a lengthy post‑custodial licence period that had concluded only relatively recently before the sexual offending.

2.2 The Solicitor General’s grounds

The Solicitor General, represented by Mr Bishop, advanced four principal criticisms:

Misclassification of the sexual assault (count 4): Both prosecution and defence had agreed that this was a Category 1 harm case (with debate only as to whether it was 1A or 1B). The judge, however, categorised it as Category 2B, leading to a lower starting point.
Inadequate treatment of aggravating and mitigating factors: It was said the judge under‑weighted serious aggravating features (particularly offending while on bail/under investigation and the violence used) and gave disproportionate weight to mitigation.
Failure to order a pre‑sentence report and flawed dangerousness assessment: In a rape case involving a defendant with specified violent offending, the judge should have obtained a pre‑sentence report (PSR) under s.30 Sentencing Act 2020 before concluding that Thompson was not dangerous and imposing standard sentences.
Totality error: The total sentence of 9 years 3 months was said not to be just and proportionate to the overall criminality against two separate victims.

2.3 The Court of Appeal’s key conclusions

The Court’s core findings were:

Rape categorisation (count 6): Categorisation as Category 2B under the Rape Guideline (severe psychological harm and additional violence) was within the reasonable range open to the judge. No error of principle.
Sexual assault categorisation (count 4):
- The judge did err by treating this as Category 2B. The conduct plainly involved “abduction” for guideline purposes, requiring classification as Category 1 harm.
- However, it was open to him to conclude that alcohol did not facilitate the offence in the guideline sense, so Category 1B (not 1A) was correct.
Effect of the miscategorisation and totality: On a correct approach, the starting point for count 4 would have been 2½ years (Category 1B). After aggregation and a holistic totality review, the overall term of 9 years 3 months was lenient but not unduly lenient. The Court declined to interfere.
Dangerousness and pre‑sentence reports:
- A PSR ought to have been ordered; the judge’s approach of looking only at the index facts (and ignoring further exploration of risk via probation) was flawed.
- Nonetheless, on the material actually available to the judge, the conclusion that Thompson was not dangerous remained within the range of lawful outcomes. Therefore, no basis for holding the sentence unduly lenient on this ground.
Prosecutorial duty: Where a judge proposes to sentence a defendant convicted of rape, with relevant previous specified offences, without obtaining a PSR before determining dangerousness, that is an error of law. Prosecutors are under a positive obligation to draw s.30 Sentencing Act 2020 and the relevant authorities to the judge’s attention.
Scope of the Court of Appeal’s review: In an unduly lenient sentence (ULS) reference, the Court is largely confined to the material before the sentencing judge and cannot cure such an error by relying on a fresh PSR unless it has already concluded the sentence is unduly lenient.

Accordingly, the Court:

Granted leave to bring the reference; but
Refused to increase the sentence, leaving the terms imposed at first instance intact.

3. Detailed Analysis

3.1 Precedents and statutory framework

3.1.1 Section 36 Criminal Justice Act 1988 – Unduly Lenient Sentences

The case arises under s.36 CJA 1988, which permits the Attorney General (or Solicitor General acting on his behalf) to refer sentences to the Court of Appeal if they appear unduly lenient. The threshold is high: the question is not whether the sentence is merely lenient or whether the Court might have imposed a longer term. It must be so lenient as to fall outside the range of sentences which a reasonable judge, properly directing himself, could impose.

Edis LJ’s observation at para 43 is emblematic:

“In our judgment, the term at which the judge arrived for these two offences of nine years and three months’ imprisonment is not an unduly lenient sentence… It is lenient, but not to such an extent that we should increase it.”

This preserves the long‑standing approach that the AG’s Reference jurisdiction is corrective, not appellate in the broad sense; the Court does not simply substitute what it considers the “right” sentence.

3.1.2 Sentencing Act 2020 s.30 – Pre‑sentence reports and dangerousness

Section 30 of the Sentencing Act 2020 provides that, where dealing with an offender who may be considered for certain serious sentencing regimes (including extended determinate sentences for dangerous offenders), the court must obtain and consider a pre‑sentence report unless, in the circumstances, it considers this unnecessary.

The Court underlines that this requirement applies with particular force in dangerousness assessments:

“…requires the court to obtain and consider a pre-sentence report before forming an opinion on the subject of dangerousness, unless in the circumstances of the case it considers that it is unnecessary to obtain such a report.” (para 25, emphasis added)

The judgment criticises the sentencing judge for neither:

Formally stating that he considered a report unnecessary; nor
Explaining why he felt able to proceed without one (para 26).

The judgment therefore links s.30 with earlier leading cases, emphasising that for sexual offences the default position is that the court generally does need probation input before concluding that an offender is not dangerous.

3.1.3 Attorney General’s Reference No 145 of 2006 [2007] EWCA Crim 692

The Court cites this case (para 27) for the proposition that:

“At each extreme of the spectrum of sexual offending, it may be that the answer to the question of risk is so clear that no report need be obtained. However, in most cases the court will need help from the Probation Service…”

Thus, in most sexual cases, and certainly in serious ones such as rape, the default approach is that a pre‑sentence report will be required for an informed dangerousness assessment. Only in obvious “extreme” cases (for example, manifestly low‑risk, one‑off offending on unique facts, or conversely, plainly predatory offenders with catastrophic risk profiles) may the court safely dispense with such assistance.

3.1.4 Attorney General’s Reference (R v O’Rourke) [2021] EWCA Crim 1064; [2022] 1 Cr App R (S) 29

O’Rourke is central to the Court’s reasoning (para 28). It stresses:

The “critical significance” of a pre‑sentence report before forming an opinion that a serious sexual offender is not dangerous.
That while sometimes the facts alone will “speak for themselves” to justify a finding that an offender is dangerous, the opposite conclusion generally requires careful investigation.
The difficulty this creates on AG’s References: the Court of Appeal must decide whether the original sentence was unduly lenient on the material before the judge. Fresh evidence (such as a later report) is normally only admissible at the stage of re‑sentencing after a finding of undue leniency.

Thompson reinforces and applies these principles, underscoring that:

“…the opposite conclusion, namely that an offender is not dangerous, should in the judgment of the court there and in our judgment today, only be reached following proper and careful investigation.” (para 28)

Edis LJ uses this framework to criticise the failure to order a report and to explain why the appellate court is institutionally constrained from remedying that omission in the context of a ULS reference.

3.2 The Court’s legal reasoning

3.2.1 Dangerousness and the role of pre‑sentence reports

The dangerousness assessment lies at the heart of the judgment’s doctrinal contribution. Thompson had:

Been convicted of rape and sexual assault – both “specified offences” for dangerousness purposes;
A prior history of serious violent offending, including robbery with an imitation firearm; and
Committed the rape whilst under active investigation and shortly after the expiry of licence from a substantial custodial term.

Despite this, the sentencing judge concluded that he could not be satisfied that the dangerousness test was met and imposed standard determinate sentences. He said (para 29):

“I have not ordered a pre-sentence report specifically to address that risk, but in my assessment of this case overall, looking at the convictions that were secured… I cannot be satisfied that the test… is met.”

The Court of Appeal characterises this as a flawed process for three reasons:

Failure to gather necessary material. The judge did not obtain a PSR despite the gravity of the offences, the prior specified violence, and the availability of up‑to‑date probation information from the recent licence period (paras 20–22, 45).
Misuse of discretion under s.30. While s.30 allows the court to forego a PSR where “unnecessary”, that exception was clearly inapplicable. The court notes that O’Rourke and AG’s Ref No 145 of 2006 made the importance of reports in such contexts “clear” and binding (paras 27–28, 44–46).
Over‑reliance on the visible trial facts. The judge effectively confined himself to the bare trial evidence and the convictions, ignoring the structured risk assessment and broader information a PSR would bring. Edis LJ calls that “a flawed approach” (para 44).

Nonetheless, the Court does not conclude that the judge’s non‑dangerousness finding was itself unduly lenient. This is because on an AG’s Reference the Court:

Must assume the sentence is the benchmark, and
Can only overturn it if, on the material the judge actually had, no reasonable judge could have declined to find dangerousness.

The Court’s reasoning is nuanced:

It explicitly recognises that, had a PSR been obtained, it might well have supported a finding of dangerousness (para 50).
However, it emphasises the sentencing judge’s experiential advantage of having observed Thompson at trial and in the witness box (para 50).
Balancing these factors, the Court stops just short of saying the non‑dangerousness finding was wrong in principle, concluding:
“…on the material which he had available to him, the determination which the judge made was one which was open to him.” (para 50)

This is a careful exercise in judicial restraint, reflecting the Court’s limited review role under s.36 CJA 1988.

3.2.2 Prosecutorial duty to ensure lawful sentencing procedure

A notable development in Thompson is the Court’s articulation of a positive duty on the Crown to intervene where the judge proposes to conduct a dangerousness assessment without a PSR in a rape case with serious previous convictions.

At para 46, the Court states:

“[T]he prosecution has an obligation to ensure that courts do not proceed in a way which is legally flawed… where a judge proposes to sentence somebody who has been convicted of an offence of rape, and to make a determination as to dangerousness without seeking a pre-sentence report, particularly where that person has relevant previous convictions… it is an error of law which arises.”

The Court accepts that prosecutors do not ordinarily argue whether an offender is or is not dangerous in a discretionary sense, but draws a clear line:

Substantive argument (e.g. “this offender is dangerous”): still largely for the court’s judgment.
Procedural legality (e.g. “you must have a PSR in these circumstances unless it is clearly unnecessary”): the prosecution is obliged to assist by citing s.30 and the relevant authorities.

This moves prosecutorial practice beyond mere neutrality and into a more active role in ensuring that the sentencing process complies with statutory and case‑law requirements. In effect, it transforms what might previously have been seen as “best practice” into an articulated expectation, at least in this class of case.

3.2.3 Sentencing guidelines: rape and sexual assault

(a) Rape (count 6)

The Court endorses the judge’s categorisation of the rape as Category 2B under the Sentencing Council’s Rape Guideline (para 39). The judge had found:

Harm: Severe psychological harm (supported by a detailed victim personal statement from V2, with which the Court agreed: para 15).
Culpability: Violence beyond that inherent in the rape, notably the significant blow to the victim’s face when she tried to resist (para 10).

Although the Solicitor General argued that aggravating factors were under‑reflected, the Court considered the categorisation and starting point to be within the wide band of reasonable judicial discretion.

(b) Sexual assault and “abduction” (count 4)

This is where the judgment makes a substantive new contribution to guideline interpretation. The Sexual Assault Guideline treats “abduction” as a factor indicative of Category 1 harm. Both counsel at first instance agreed that this was a Category 1 case, because Thompson had:

Offered a lift home;
Then driven V1, against her wishes, to a secluded spot to sexually assault her.

The judge disagreed, reasoning that he could not be “satisfied” there was abduction, apparently influenced by the absence of facts supporting a separate charge of kidnap or false imprisonment (para 34). He therefore placed the case in Category 2B, with a starting point of 1 year.

The Court of Appeal firmly corrects this:

“It is not possible to describe an act of driving someone who wants to go home, instead to a secluded car park near a lake so that they can be sexually assaulted. That is as clear an act of abduction as it is possible to contemplate.” (para 40)

Key points from this passage:

For guideline purposes, “abduction” is a functional, not technical, concept. It does not require conduct severe enough to support an independent count of kidnap or false imprisonment.
The relevant question is whether the offender knowingly caused the victim to be taken or kept in a place (or situation) they did not want to be in, for the purpose of committing the sexual assault.
This factual matrix plainly engages Category 1 harm, even if the overall criminality falls short of what might justify a separate kidnapping charge.

The Court nonetheless rejects the Solicitor General’s contention that the case should have been treated as Category 1A. That turns on the role of alcohol:

“The sexual offence was not facilitated by alcohol in the sense that it secured the victim's compliance or inability to resist. The sexual offence occurred because she had been abducted.” (para 41)

Therefore:

Correct classification: Category 1B, with a 2½ year starting point (para 42);
Misclassification as Category 2B was an error of law, but did not, in the final analysis, render the overall sentence unduly lenient after applying totality (paras 42–43).

3.2.4 Offending while on bail or “release under investigation”

An interesting and practically significant point arises at para 5: the Court holds that offending while on “release under investigation” (RUI) is, in substance, equivalent to offending while on bail for aggravation and dangerousness purposes.

“…offending while on bail is an aggravating factor, and the same applies, in our judgment, to offending while subject to an investigation, having been released on those terms… Whether the offender… is on bail or… released under investigation for present purposes is a difference without substance.”

Given the prevalence of RUI in modern policing practice, this clarification is important. The court:

Closes a potential loophole where offenders might argue that guideline “on bail” aggravation does not strictly apply to RUI;
Signals that courts should treat offending under active investigation as a serious indicator of risk and disregard for the law.

3.2.5 Delay and time spent on remand

There was significant delay between the offences and sentence due to multiple inconclusive trials and a second retrial. Thompson had been in custody since June 2022, whereas the offences dated back to mid‑2021 and early 2022.

The Court:

Acknowledges delay as a factor to be considered (para 6);
Notes that custody time limits offered only limited protection and that Thompson effectively served a long period on remand before conviction; but
Holds that in the context of an inevitable long custodial term for rape, this delay does not amount to a “substantial mitigating factor”, particularly since it was not due to fault by the court or prosecution but to jury disagreements (para 6).

This is consistent with the principle that delay may mitigate, but its force is context‑specific and diminishes where the offender faces an unavoidable lengthy term in any event.

3.2.6 Totality and the final sentence

The totality principle requires the court, where imposing consecutive sentences for multiple offences, to “stand back” and ensure that the aggregate term is just and proportionate to the overall criminality.

Here:

The judge:
- Initially assessed the rape at 8 years 3 months (Category 2B with aggravation/mitigation adjustments);
- Assessed the sexual assault provisionally at 1 year 9 months (based on his erroneous Category 2B classification);
- Then reduced each to 8 years and 1 year 3 months respectively to achieve a totality‑adjusted term of 9 years 3 months (paras 33–37).
The Court of Appeal re‑works the exercise on the basis of the correct Category 1B classification (starting point 2½ years) but emphasises:
“In our judgment, there is no scientific calculation involved in a totality calculation… It is a matter of standing back and looking at the overall criminality and imposing an appropriate term to reflect it.” (para 43)

On that holistic assessment, 9 years 3 months remained within the permissible range, even from a higher starting point on count 4. That is why the misclassification, although a clear error, was not outcome‑determinative in the ULS context.

4. Impact and Significance

4.1 Clarifying “abduction” in the Sexual Assault Guideline

Thompson is likely to be cited in future as a leading authority on the meaning of “abduction” within the Sexual Assault Guideline. It makes clear that:

Any deliberate movement of the victim to a location they do not want to go, for the purpose of committing a sexual assault, will generally suffice to engage Category 1 harm.
Courts should not narrow “abduction” by reference to the technical requirements for kidnapping or false imprisonment charges.
Sentencers should give significant weight to the abusive manipulation of a victim’s control over location or movement, particularly where a false pretext (such as a lift home) is abused.

This will likely lead to:

More cases being placed in Category 1 where offenders divert or detain victims under false pretences; and
Higher custodial starting points in such cases, subject to totality.

4.2 Strengthening the near‑mandatory nature of PSRs in serious sexual cases

Building on O’Rourke and AG’s Ref No 145 of 2006, Thompson pushes practice further towards a presumption that:

In serious sexual cases (particularly rape), involving:
- Specified prior violent offending; and/or
- Complex risk indicators (e.g. offending under investigation, repeated allegations),
The court should obtain a PSR before certifying that an offender is not dangerous.

While s.30 retains a formal discretion, Thompson renders the circumstances in which that discretion may properly be exercised not to obtain a PSR much narrower. It will now be difficult to justify skipping a PSR in any but the clearest low‑risk or high‑risk extremes.

4.3 Prosecutorial practice and ethical obligations

From a systemic perspective, the most important practical innovation is the court’s express statement that prosecutors bear an obligation to ensure the judge does not proceed in a legally flawed way in dangerousness cases involving rape and previous specified violence.

Consequences for practice include:

Prosecutorial training: Crown advocates will need to be alert to s.30 and the dangerousness provisions whenever serious specified offences are before the court.
Standard submissions: It may become routine, particularly in rape cases with prior convictions, for prosecutors to:
- Flag the need for a PSR;
- Expressly refer to O’Rourke and Thompson; and
- Record their submissions on the court file to guard against later ULS references.
Judicial dialogue: Judges who intend to proceed without a PSR will now be expected to:
- Explain on the record why they consider a report unnecessary; and
- Demonstrate that they are aware of and have applied the guidance in O’Rourke and Thompson.

4.4 Unduly lenient sentence references: limits of appellate intervention

Thompson re‑emphasises the structural limits of the AG’s Reference jurisdiction:

The Court of Appeal cannot treat a sentencing hearing as a complete re‑sentencing exercise whenever it detects legal error; it must ask whether the result is unduly lenient, not whether the reasons were flawless.
The inability to rely on fresh material (such as a post‑appeal PSR) unless undue leniency is first established can leave apparent errors unremedied in individual cases.

This may appear unsatisfactory in a case like Thompson’s, where the Court frankly acknowledges:

“[T]he truth of it may be that, after proper investigation, it might have emerged that the offender is indeed dangerous.” (para 50)

However, it reflects a conscious policy choice: maintaining a high threshold for state appeals against sentence and protecting finality, even at the cost of occasionally tolerating arguably lenient but lawful outcomes.

4.5 Treatment of offending on investigation as equivalent to offending on bail

The holding that offending while “released under investigation” is to be treated as analogous to offending on bail for aggravation and dangerousness purposes has obvious practical impact. It:

Ensures consistency of aggravation regardless of the procedural label used by the police;
Signals that “release under investigation” is not a soft landing: offenders remain under judicial scrutiny for further criminality; and
May influence future guideline revisions or commentary to make this equivalence explicit.

5. Complex Concepts Explained Simply

5.1 “Unduly lenient sentence”

A sentence is “unduly lenient” if:

It falls substantially outside the range of sentences that any reasonable judge, properly applying the law and guidelines, could impose; and
Not merely because another judge might legitimately have gone higher.

Lenient but defensible sentences are not interfered with on an AG’s Reference. The Court intervenes only when the sentence is so low that it constitutes a clear error of judgment in outcome, not just process.

5.2 Dangerousness and extended determinate sentences

Under the Sentencing Act 2020, an offender convicted of specified violent or sexual offences (such as rape) can receive an “extended determinate sentence” (EDS) if:

They present a significant risk of serious harm to the public; and
Certain statutory thresholds are met (relating to the seriousness of the offence and previous convictions).

An EDS has:

A normal custodial term (the time spent in prison) plus;
An “extension” period on licence (supervision), which can be very long.

A finding that an offender is “dangerous” triggers these more onerous sentencing powers. A finding that they are “not dangerous” confines the court to standard determinate sentences.

5.3 Pre‑sentence report (PSR)

A PSR is a report prepared by the Probation Service, giving:

Background on the offender (personal history, previous offending, family and employment circumstances);
An assessment of risk to the public; and
Recommendations on the suitability of different sentencing options and risk‑management strategies.

In serious sexual cases, a PSR often includes structured risk‑assessment tools, making it vital in deciding whether someone is dangerous and in designing appropriate licence conditions.

5.4 “Abduction” in the Sexual Offences Guidelines

In the context of sexual assault sentencing, “abduction” means making or keeping the victim somewhere they do not want to be so that a sexual offence can be committed. It is not confined to full‑blown kidnap scenarios.

Examples include:

Offering a lift home and then driving to a secluded area for sexual assault;
Preventing a victim from leaving a room to carry out or continue an assault; or
Steering a heavily intoxicated victim away from friends and into a more vulnerable setting to exploit them.

In such cases, harm will usually be treated as Category 1, leading to a higher sentencing starting point.

5.5 “Release under investigation” vs bail

“Release under investigation” (RUI) is a police practice where:

A suspect is released from custody without formal bail conditions;
The police continue investigating, and the suspect may be re‑interviewed or charged later.

In Thompson, the Court makes clear that for sentencing:

Offending while RUI should be treated in the same way as offending on bail.
It shows contempt for the criminal process and is a powerful aggravating factor.

6. Conclusion

R v Thompson [2025] EWCA Crim 1462 is a significant sentencing authority despite the Court’s decision not to increase the sentence. Its main contributions are:

Guideline interpretation: It strongly affirms that driving a complainant, against her expressed wishes, to a secluded place for sexual assault constitutes “abduction” for guideline purposes, mandating Category 1 harm. This will influence categorisation in many sexual assault cases where offenders abuse control over victims’ movements.
Dangerousness and PSRs: It reinforces and intensifies the principle that the court should almost always obtain a pre‑sentence report before concluding that a rape offender with relevant prior violence is not dangerous. The discretion under s.30 to forgo a report is narrow and must be explicitly justified.
Prosecutorial duty: It articulates a clear expectation that prosecutors must intervene when a judge proposes to conduct a dangerousness assessment in such cases without a PSR, framing the omission as an error of law and citing s.30 and the key authorities.
Scope of appellate review: It demonstrates the Court of Appeal’s commitment to the strict confines of the AG’s Reference jurisdiction: legal errors do not automatically translate into increased sentences unless the outcome is truly unduly lenient.
Aggravation for offending under investigation: It equates RUI status with being on bail for aggravation and dangerousness purposes, ensuring offenders cannot exploit procedural distinctions in police practice.

In the broader legal landscape, Thompson sits alongside O’Rourke and AG’s Ref No 145 of 2006 as a key authority on dangerousness assessments in sexual cases. It is also likely to be frequently cited in sentencing appeals and references involving:

Sexual assault categorisation where the victim has been moved or detained; and
Challenges to the adequacy of pre‑sentence risk assessment in rape and other serious sexual offences.

While Thompson himself retains a lenient but lawful sentence, the judgment’s legacy will lie in tightening sentencing practice and prosecutorial vigilance in future cases involving dangerous sexual offenders.