Age and Maturity as Mandatory Considerations in Historic IPP/DPP Sentencing: Indeterminate Sentences as Last Resort

1. Introduction

The Court of Appeal heard together six unconnected cases in which each appellant had received an indeterminate sentence (IPP/DPP/DYPP) under the former “dangerous offenders” provisions of the Criminal Justice Act 2003. The cases spanned: (i) the first iteration (4 April 2005 to 13 July 2008), when IPP/DYPP could be mandatory for adults upon a dangerousness finding in “serious offences” and a rebuttable assumption of dangerousness could apply to adults with relevant prior convictions; and (ii) the second iteration (14 July 2008 to 2 December 2012), amended by the Criminal Justice and Immigration Act 2008, when the assumption was removed, IPP/DPP ceased to be mandatory, and additional statutory thresholds were introduced (including a minimum tariff condition).

The appeals raised two recurring legal questions:

• How should youth/young adulthood affect the dangerousness assessment? (i.e., the predictive evaluation of “significant risk of serious harm” under s.229 CJA 2003)
• Where indeterminate sentencing was discretionary, what was required of sentencers in considering alternatives? In particular, must the court explicitly consider (and give reasons for rejecting) extended/determinate sentences as part of the “total protective sentencing package”?

The Court allowed the appeals of five appellants, quashing indeterminate sentences and substituting determinate or extended sentences, and adjourned one appeal for possible Mental Health Act disposal evidence.

2. Summary of the Judgment

2.1 Outcomes

• Davis: dangerousness finding held unsustainable given youth/maturity considerations; DPP quashed; substituted 18 months’ imprisonment.
• Tolbert: first-iteration child wrongly treated as subject to adult assumptions/mandatory framework; DPP quashed; substituted 5 years’ detention under s.91 Powers of Criminal Courts (Sentencing) Act 2000.
• McLaren: dangerousness upheld, but second-iteration discretion not properly exercised/explained; IPP quashed; substituted extended sentence (custodial 7 years + extended licence 5 years).
• Webster: dangerousness plainly made out, but failure to consider/justify extended alternative and flawed approach to age in setting tariff; DPP quashed; substituted extended sentence (custodial 5 years + extended licence 8 years).
• O’Neill: dangerousness upheld, but sentencing judge failed to engage with second-iteration discretion/alternatives and did not properly weigh young age; DPP quashed; substituted extended sentence (custodial 8 years + extended licence 8 years).
• Hibbert: adjourned to permit psychiatric evidence on whether a Mental Health Act 1983 disposal should be substituted; directions given for any application under s.23 Criminal Appeal Act 1968.

2.2 The Court’s approach

Applying R v Roberts [2016] 2 Cr App R (S) 14, the Court emphasised that late challenges to IPP/DPP sentences succeed only where an error of law is shown in the sentencing process as it should have been conducted at the time. The Court scrutinised the sentencing remarks to see whether the sentencer truly:

• kept age, maturity, and potential for change at the centre of risk assessment; and
• where discretion existed, considered the least severe adequate option and explained why extended/determinate measures would not suffice.

3. Analysis

3.1 Statutory framework and the “two iterations” problem

The judgment’s legal architecture is built around the shifting statutory scheme:

• First iteration (2005–2008):
  • Adults: for “serious offences” and a dangerousness finding, IPP/DYPP was mandatory (unless life sentence justified). A rebuttable assumption of dangerousness could apply under s.229(3) where there were relevant prior convictions.
  • Children: no assumption; and crucially, even for serious offences, DPP was not automatic. The court had to ask whether an extended sentence would be adequate; only if not, DPP followed (s.226(3)).
• Second iteration (2008–2012):
  • assumption of dangerousness removed;
  • IPP/DPP became discretionary even after dangerousness;
  • additional statutory thresholds, including the two-year notional minimum term condition for IPP/DPP (and related conditions for extended sentences).

A central theme is practical: historic sentencers sometimes proceeded as though the “old” rule still applied (e.g., treating IPP/DPP as the inevitable next step once dangerousness was found), or—most starkly—treated a child as though adult assumptions/mandatory rules applied. The Court characterised such failures as serious because they short-circuited the statutory sequencing and the required evaluative judgment.

3.2 Precedents cited and how they shaped the decision

A. Foundational interpretation of dangerousness: R v Lang [2005] EWCA Crim 2864; [2006] 2 Cr App R (S) 3

Lang is treated as the “critical decision” for these appeals. The Court relied especially on:

• the meaning of “significant” risk (more than a mere possibility); and the requirement to assess not only risk of future specified offending but risk of serious harm;
• the caution against assuming serious harm merely because the foreseen offence is “serious”;
• the structured approach to information sources (PSRs, antecedents, medical reports) and fairness if departing from report assessments;
• and, crucially for this judgment, Lang at [17(vi)]: when sentencing young offenders, courts must bear in mind that within a shorter time than adults they may change and develop, which may be highly pertinent to future risk.

The Court used Lang not as an abstract checklist but as a legal yardstick to test the lawfulness of the historic reasoning: whether sentencers treated immaturity and impulsivity only as aggravating risk factors, rather than also as indicators of capacity for change.

B. Clarifying future-risk focus and appellate restraint: R v Johnson [2006] EWCA Crim 2486; [2007] 1 WLR 585

Johnson reinforced that dangerousness is a forward-looking evaluation aimed at public protection. It also supplies procedural discipline (disputed facts) and appellate restraint where principles are correctly applied. In this case, Johnson mattered because the Court distinguished:

• proper deference where the sentencer has genuinely applied the correct framework; versus
• intervention where the sentencing remarks show misdirection (e.g., failure to appreciate discretion; failure to consider alternatives; failure to integrate age/maturity into the risk assessment).

C. Youth and indeterminate sentencing as exceptional: R v JW [2009] 2 Cr. App. R. (S.) 94, R v W [2009] EWCA Crim 2858, R v SS [2012] EWCA Crim 1706, R v RL and TR [2011] EWCA Crim 1862

The Court synthesised these authorities to support a strong proposition: for children, indeterminate detention should be a last resort, because youth is inherently associated with developmental change and hence a moving risk picture.

• R v JW is used to explain that youth affects both culpability and risk prediction, and that indeterminate sentences may be unnecessary except in cases of very grave risk.
• R v W is invoked for the “important principle” that even with an appalling record, a young offender’s age remains central because change can occur over a shorter period.
• R v SS encapsulates the point: before imposing indeterminate loss of liberty on youth, the court must be satisfied it is “the only way.”
• R v RL and TR demonstrates that even where dangerousness is upheld for serious violence, DPP may still be replaced by an extended sentence because DPP is a last resort “only when no lesser alternative will suffice.”

D. Second-iteration discretion and the “total protective sentencing package”: Attorney-General's Reference No. 55 of 2008) (R v C) [2008] EWCA Crim 2790; [2009] 2 Cr App R (S) 22

This authority is pivotal for second-iteration cases. The Court relied on two linked ideas:

• IPP is “the most draconian” measure short of life; courts should consider whether a determinate or extended sentence plus ancillary measures (the “total protective sentencing package”) can provide sufficient protection.
• The dividing line between IPP and extended sentence is fact-specific, but the rule of thumb is clear: if extended sentencing (with additional orders if needed) can achieve protection, IPP should not be imposed.

The judgment applies that logic in a practical, error-focused way: in second-iteration cases, a sentencer who moves from dangerousness straight to IPP/DPP without engaging with alternatives commits an error of law.

E. Young adults and the “cliff-edge” critique: R v Jamie Dalton [2013] EWCA Crim 177, R v Clarke [2018] EWCA Crim 185; [2018] 1 Cr. App. R. (S.) 52, R v Leighton Williams [2024] EWCA Crim 686

While the Court stressed that modern guidance was not being applied wholesale, it used earlier recognition of young adult maturation to support its historic-law analysis. Jamie Dalton is used to show that even before Clarke, the Court accepted that early-20s offenders may mature materially during long custody/licence periods, making extended sentences viable.

R v Leighton Williams is especially significant for this judgment’s reasoning style: it rejects a simplistic “turning 18” bright line and emphasises maturity as a functional concept. The Court used this to reinforce the proposition that sentencers must properly weigh youth (including late adolescence/young adulthood) when assessing future risk and choosing sentence type.

F. Reasons, omission of alternatives, and the appellate “re-sentencing” function: R v Roberts [2016] 2 Cr App R (S) 14, R v Hanson [2023] EWCA Crim 203, R v Fellowes [2023] EWCA Crim 819, R v Haroon Ahmed [2025] EWCA Crim 1572, R v Al-Khamis [2019] EWCA Crim 1291, R v Sillitto [2025] EWCA Crim 868

These cases are deployed to justify a forensic approach to sentencing remarks. The Court reaffirmed that it will not allow appeals merely for missing formulaic language; however, where the reasoning shows the sentencer did not address a legally required step—such as the availability/adequacy of an extended sentence under the second iteration—then the Court will revisit and redo the sentencing exercise.

Fellowes and Sillitto support the requirement to assess risk at the point of release rather than deferring to the Parole Board by default; and Al-Khamis illustrates that a “glancing reference” to extended sentencing can be inadequate where discretion must be exercised transparently.

G. Post-sentence material and s.23: R v Rogers [2016] EWCA Crim 801; [2016] 2 Cr App R (S) 36, In re Caines (Practice Note) [2007] 1 WLR 1109, R v Beesley and Coyle [2011] EWCA Crim 1021; [2012] 1 Cr App R (S) 15

The Court restated that sentence appeals are primarily assessed on what was available at the time; limited exceptions permit some updating (e.g., prison reports), but fresh psychiatric/psychological evidence aimed at challenging dangerousness or seeking hospital disposal generally requires a s.23 Criminal Appeal Act 1968 route. This directly informed the adjournment in the Hibbert appeal.

3.3 Legal reasoning: what the Court required of historic sentencers

A. Age and maturity were legally relevant at two distinct decision-points

The judgment is careful to separate:

• (1) Dangerousness (s.229): Youth affects the reliability of predicting entrenched future risk; the court should be less pessimistic where maturation may reduce risk (drawing on Lang and youth justice statutory principles).
• (2) Sentence type (IPP/DPP vs extended/determinate): Where IPP/DPP was discretionary (children under the first iteration; everyone under the second iteration), the court must consider less draconian options first, and only impose indeterminate detention if necessary for protection.

B. The statutory “youth difference” existed even before modern guidelines

The Court anchored the relevance of youth in contemporaneous law, not modern sensibilities:

• s.142 CJA 2003 sentencing purposes did not apply to under-18s;
• s.37 Crime and Disorder Act 1998 (prevent offending as principal aim of youth justice);
• s.44 Children and Young Persons Act 1933 (court must have regard to welfare).

This supported the Court’s insistence that historic sentencers were already legally obliged to treat children differently; and that, even for young adults, the case law had foreshadowed the “cliff-edge” critique.

C. “No set words” — but the reasoning must reveal the required legal steps

The Court reiterated that appeals do not succeed simply because a sentencer omitted a phrase. The question is whether the remarks show that the judge actually engaged with:

• youth/maturity in the dangerousness calculus; and
• where relevant, the availability and adequacy of extended/determinate alternatives (and reasons for rejection).

D. Identification of the legal errors across the cases

Appellant	Iteration / age issue	Error of law identified
Davis	First iteration; young adult (19)	Dangerousness finding unsustainable because youth/immaturity was treated only as increasing risk; the judge (and earlier refusal decisions) failed to give proper weight to maturation as reducing future risk in a case with relatively modest proportionate determinate term.
Tolbert	First iteration; child (15 at sentence)	Child was incorrectly treated as if adult assumptions/mandatory framework applied; sentencer apparently did not appreciate he was sentencing a child; failure to follow the required statutory sequencing (extended sentence adequacy first).
McLaren	Second iteration; young adult (21)	Dangerousness upheld but judge gave no indication of appreciating or exercising second-iteration discretion; no consideration/explanation of extended/determinate options; inconsistency with co-offender sentencing highlighted the need for reasoned choice.
Webster	Second iteration; child (14 at offence)	Failure to consider/reason extended sentence alternative despite PSR flagging it; tariff set with insufficient regard to age; court treated reasoning gap as undermining lawfulness of indeterminate disposal for a child.
O’Neill	Second iteration; young adult (20)	Dangerousness upheld, but the judge moved from rejecting life to imposing IPP “therefore”, suggesting failure to appreciate discretion; no engagement with extended sentence as alternative; inadequate consideration of young age as a factor supporting a time-limited protective package.
Hibbert	Second iteration; child (16)	Adjourned to investigate whether a Mental Health Act 1983 disposal should have been considered; procedural route via s.23 Criminal Appeal Act 1968 emphasised.

3.4 Impact

Although the Court stressed the decision’s limited forward-looking relevance (because IPP/DPP is repealed), its practical and doctrinal impact is significant in four ways:

• Historic IPP/DPP correction cases: The judgment provides a clear template for identifying “Roberts errors”: (i) failure to apply the correct iteration’s rules; (ii) failure to treat youth/maturity as central; (iii) failure to consider and explain extended/determinate alternatives where discretion existed.
• Young age as a structured risk factor (not a rhetorical flourish): The Court treats developmental change as a legally relevant component of the predictive dangerousness inquiry, not merely mitigation of culpability.
• Reasons as an indicator of lawful discretion: The decision reinforces that the absence of any meaningful explanation for rejecting extended sentencing—especially in second-iteration cases—may justify substitution even where dangerousness is upheld.
• Procedural clarity on post-sentence evidence: By adjourning Hibbert for potential Mental Health Act issues, the Court underscores disciplined use of s.23 where new expert evidence is required.

4. Complex Concepts Simplified

4.1 IPP / DPP / DYPP

These were indeterminate sentences: the court set a minimum term (often called a “tariff”), after which release was at the discretion of the Parole Board; if released, the person remained on a life licence. In practice, they could operate like life sentences even for offences with modest determinate sentencing ranges.

4.2 “Dangerousness” under s.229 CJA 2003

“Dangerousness” meant a significant risk of causing serious harm to the public by committing further specified offences. The key points are:

• Significant means “noteworthy” or “of considerable importance” (not just possible).
• Serious harm includes serious psychological harm as well as physical injury or death.
• For adults (first iteration), certain priors could trigger a rebuttable assumption of dangerousness; this did not apply to children and was removed in the second iteration.

4.3 Extended sentences (historic form)

An extended sentence combined:

• a custodial term; plus
• an extra period of extended licence supervision.

The judgment highlights that, in the relevant period, release under an extended sentence occurred automatically at the half-way point of the custodial term (unlike many modern extended determinate sentences where Parole Board release can apply). Nonetheless, extended sentences were an essential alternative within the statutory protective scheme, particularly for young offenders where change over time was expected.

4.4 “Total protective sentencing package”

This phrase (from Attorney-General's Reference No. 55 of 2008) (R v C)) means the court should consider whether public protection can be achieved by combining: a determinate/extended sentence with additional restrictions (where available), rather than defaulting to the most draconian indeterminate option.

5. Conclusion

[2026] EWCA Crim 743 is a structured restatement of what lawful sentencing required under the repealed IPP/DPP regime: age, maturity, and capacity for change were not peripheral considerations but legally relevant to both dangerousness and—where discretion existed—the choice between indeterminate and extended/determinate sentencing.

The Court’s interventions in five of six cases underline a single theme: when the law permitted (or required, for children) exploration of less draconian protective options, sentencers had to demonstrate that they had worked up from the least severe adequate disposal and could justify indeterminacy as a last resort. Where historic remarks revealed that this discipline was absent—through misapplying the iteration, overlooking youth, or skipping the extended-sentence inquiry—the indeterminate sentence was unlawful and fell to be replaced.