A. Precedents Cited
Attorney-General's Reference (No 55 of 2008) [2008] EWCA Crim 2790; [2008] 2 Cr. App. R. (S.) 22
Although decided after the applicant’s 2008 sentencing, this authority framed the Court of Appeal’s evaluation of the post-amendment discretion.
It characterises IPP as “the most draconian sentence available... after a discretionary life sentence,” and emphasises that, where an
extended sentence can provide appropriate public protection, it should be imposed instead. The Court in Ahmed treated these principles
as consistent with, and flowing from, the amended statutory structure: once Parliament provided a menu of options, it became “inherently necessary”
to consider the extended sentence alternative.
Cited to underline the practical similarities between IPP and life imprisonment—indeterminacy, Parole Board-controlled release, and a minimum term
fixed by reference to a hypothetical determinate sentence. This comparison bolstered the Court’s view that IPP sits near the top of the severity scale,
reinforcing the need for careful justification where lesser protective measures (notably extended sentences) are available.
Used to support two linked propositions: (i) the “for all practical purposes” similarity between IPP/DPP and life sentences; and (ii) the sentencing
culture of caution around indeterminate protective sentences, particularly relevant when the applicant was a young adult and when the court must articulate
why an indeterminate approach is required.
Roberts provided the governing framework in two respects. First, it re-stated extension-of-time principles: reasons are required, and the court weighs
all circumstances (including delay and merits) in the “interests of justice.” Second, it cautioned that later penal policy changes (such as the abolition
of IPP) do not, by themselves, justify re-opening earlier sentences; intervention is warranted where the original sentence was not properly open on the law
as it stood (or was imposed contrary to controlling interpretations). Ahmed fits within that exception: the Court found the sentencing process did not
engage with the statutorily available option of an extended sentence, rendering the IPP wrong in principle.
Relied on by the Crown to rebut a common misconception: a dangerousness finding does not depend on serious harm having actually occurred in the index offence.
The Court accepted that the absence of serious harm to the victim did not preclude dangerousness; what mattered was the risk posed and the seriousness of the
threatened harm (here, a large knife held to the victim’s throat in an organised robbery).
Supported the proposition that, in assessing dangerousness, the sentencing judge is not confined to matters proved by conviction or evidence admissible at trial.
The Court used this to uphold reliance on expert reports and prison medical notes referencing an alleged serious assault on another inmate, especially where
counsel had (as recorded) confirmed the truth of the account given by the applicant to the psychologist.
B. Legal Reasoning
(1) Dangerousness was established on the totality of the material
The Court treated dangerousness as a fact-sensitive, evaluative judgment. While acknowledging that the applicant’s prior record contained
no offences matching the gravity of the robbery and “nothing in relation to serious acts of violence,” it emphasised:
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Escalation and immediacy: the robbery occurred the day after release and while on licence, and represented a marked escalation.
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Seriousness of threat: a large knife was used at the victim’s throat; limited injury was fortuitous, dependent on compliance.
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Expert evidence: psychological indications of antisocial traits and psychiatric concerns about hallucinations/personality disorder.
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Institutional risk markers: accounts (accepted by the sentencing process) of extreme violence towards another inmate, weapons concealment,
and arson risk indicators in custody.
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Non-cooperation: resistance to psychiatric evaluation impeded risk formulation and management planning.
The Court therefore refused to disturb the dangerousness finding.
(2) Post-14 July 2008: failure to consider an extended determinate sentence made IPP wrong in principle
The decisive reasoning lay not in whether IPP could be imposed, but in whether the judge’s sentencing exercise correctly engaged with the amended
statutory framework. The Court stressed:
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Statutory change created a new decision obligation: after 14 July 2008, a dangerousness finding did not compel IPP; it triggered a choice
among life, IPP (s.225), extended determinate sentence (s.227), or determinate sentence.
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Need for express consideration: because IPP is near the apex of severity (“second last resort”), the sentencing judge had to consider whether
an extended sentence could provide adequate public protection.
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Inference from silence and context: the Court drew an inference that the extended sentence option was not considered, based on
(i) the absence of any mention in sentencing remarks; (ii) the judge’s earlier (11 July 2008) stated intention to pass IPP (at a time when extended sentences
were not available); and (iii) pre-sentence materials pre-dating the amendment.
This was not treated as a mere “reasons” deficiency; rather, it went to whether the judge carried out the correct legal exercise under the amended regime.
Having found the omission, the Court re-sentenced and concluded that public protection could be sufficiently achieved by a substantial extended determinate
sentence (5 years’ custody plus 5 years’ extended licence), rejecting the need for indeterminacy.
(3) Extension of time: merits can outweigh extreme delay
Applying the Roberts framework, the Court accepted that the delay was very long, but found it in the interests of justice to extend time because the appeal
exposed a material sentencing error: the imposition of an indeterminate sentence without engaging the post-amendment statutory option of an extended sentence.
The stronger the underlying injustice, the more likely the Court will grant exceptional extensions—though this remains discretionary and fact-dependent.