Change in Penal Policy Does Not Reopen IPP Sentences: Refusing Very Late IPP Appeals Absent Arguable Sentencing Error

1) Introduction

R v Thorpe ([2025] EWCA Crim 1758) concerns two renewed applications for leave to appeal against sentence: (i) an imprisonment for public protection (IPP) sentence imposed in 2008 after a trial for robbery (the “Harrow robbery”), and (ii) a six-year determinate sentence imposed in 2024 following guilty pleas to conspiracies to steal and fraud (the “Kingston offences”).

The Court of Appeal (Criminal Division) (Cavanagh J) also dealt with a section 4(2) Contempt of Court Act 1981 reporting restriction made in 2024, lifting it on the basis that the underlying third-party investigation did not result in charges and the judgment created no substantial risk of prejudice.

The key issues were:

  • whether an extension of time of 5,818 days should be granted to appeal the 2008 IPP sentence;
  • whether the 2008 IPP sentence was arguably wrong (including by reference to later abolition of IPP and a later autism/Asperger’s diagnosis);
  • whether the 2024 sentences were manifestly excessive, based on unsustainable inferences about role/culpability, or disparity compared to a co-defendant.

2) Summary of the Judgment

  • The Court lifted the section 4(2) reporting restriction.
  • The Court held the 2008 IPP appeal was not arguable; therefore it refused an extension of time and refused leave in substance.
  • The Court found no arguable error in the 2024 sentencing exercise (role, category placement, plea credit, mitigation, totality, or disparity) and therefore refused leave to appeal against the 2024 sentences.

3) Analysis

A) Precedents Cited

i) Roberts [2016] EWCA Crim 71 and Darren Hilling [2024] EWCA Crim 1279

These authorities supplied the central controlling proposition on the IPP limb: the abolition of IPP by later legislation is a change in penal policy which does not entitle the Court of Appeal to revisit or reduce an IPP sentence that was lawful and properly open on the facts and law at the time.

In Thorpe, the Court treated this as dispositive of any attempt to frame “abolition” as a free-standing reason to reopen a historic IPP sentence. The Court’s approach underscores that an appellant must identify an error at the time of sentence (e.g., misapplication of the dangerousness test), not merely point to subsequent legislative change or later dissatisfaction with the IPP regime.

ii) Attorney General's Reference No 55 of 2008 [2008] EWCA Crim 2790

This case was cited for its description of IPP as “the most draconian sentence” after discretionary life and for the emphasis that courts should keep in mind alternative methods of public protection when deciding whether to impose IPP.

The Court in Thorpe held the 2008 sentencing judge could not be criticised for not citing this authority because it post-dated sentence, but it nevertheless examined whether the judge had, in substance, considered alternatives. It found he had: he did not treat the choice as binary (life vs IPP) and considered other sentencing consequences. This use of AG Ref No 55 functioned as a benchmark of sentencing approach rather than a retroactive standard for error.

iii) Fawcett [1983] 5 Cr.App.R (S) 158

Fawcett provided the classic test for appellate intervention on disparity between co-defendants: disparity only becomes a ground if it is such that “a right-thinking member of the public with full knowledge of the relevant facts and circumstances would consider that something had gone wrong with the administration of justice”.

Applying Fawcett, the Court found no arguable disparity: the sentencing judge adopted broadly the same starting points and adjustments for the ATM conspiracy for both men, and the overall difference was explicable by differences in counts of conviction and overall criminality being sentenced.

B) Legal Reasoning

i) Lifting the section 4(2) restriction

The Court confirmed that section 4(2) orders are justified only to avoid a substantial risk of prejudice to the administration of justice. With the third-party investigation having ended without charges, and with nothing in the judgment creating a real risk to fairness in any future proceedings, the rationale for restriction fell away and it was lifted.

ii) The 2008 IPP sentence: no arguable error; extension of time refused

The Court’s reasoning proceeds in two steps:

  1. Arguability of the appeal: The Court analysed whether there was any arguable ground that the IPP sentence was wrong when imposed. It identified the applicable statutory gateway: under section 225 Criminal Justice Act 2003 (as amended for sentences after 14 July 2008), where the offender is convicted of a serious specified offence (robbery being specified) and there is a significant risk of serious harm from further specified offences, the court may impose IPP if the notional minimum term threshold is met. On the facts (multiple robberies involving weapons; organiser role; professional, profit-driven offending; high risk assessment in the pre-sentence report), dangerousness was plainly open and IPP was within the lawful sentencing discretion.
  2. Extension of time: Because the appeal was not arguable, the Court refused the extension. It also observed there were no good reasons advanced for the “very long delay”. Notably, even the later 2015 diagnosis did not explain why the appellant waited a further nine years to apply.

The Court also rejected an attempt to use the time actually served (significantly beyond the tariff) as retrospective proof that the sentence was excessive: the question is whether the sentence was wrong at the time, not how parole and release processes subsequently played out.

The later psychologist’s view of mild Asperger’s/autism spectrum symptoms did not undermine the dangerousness finding: it neither contradicted the established pattern of weapon-enabled robberies for financial gain nor suggested a treatment pathway that materially reduced risk.

iii) The 2024 Kingston sentences: role/culpability, disparity, and manifest excess

The Court treated the renewed application as an attempt to re-argue evaluative judgments that were firmly anchored in the evidence and guidelines:

  • Role and inferences: The applicant argued he should not have been treated as “leading”. The Court held the judge was entitled to infer a leading role from the applicant’s central involvement in procurement and disposal of vehicles, use of premises linked to him, sophistication and planning, and the fact that remaining in the car during execution could denote seniority rather than marginality. It also stressed the judge was not bound by the prosecution’s suggested categorisation.
  • Disparity: Applying Fawcett, the Court found the one-year difference between totals was rationally explained by different counts and overall sentence structure, not by inconsistent treatment on shared criminality.
  • Manifest excess / guideline application: The sentencing judge’s approach to theft and fraud guidelines, aggravation (notably extensive antecedents), mitigation (including autism spectrum evidence and family circumstances), plea credit, and totality was described as clear, thorough, and unassailable. The Court rejected complaints about limited plea discount for late pleas, noting the applicant’s experience and ability to plead earlier if he wished.
  • Remand time while on recall: The Court endorsed the judge’s approach: because the applicant was on recall on the IPP licence during the remand period, he was not entitled to credit against the new determinate sentence for that time. The judge accounted for this context by treating “offending on licence” as less aggravating than it otherwise might have been, rather than by giving impermissible “credit”.

C) Impact

The decision reinforces several practical points for future sentencing appeals:

  • IPP appeals remain tightly constrained: Following Roberts [2016] EWCA Crim 71 and Darren Hilling [2024] EWCA Crim 1279, the abolition of IPP is not a gateway to reduction on appeal; appellants must show a contemporaneous sentencing error.
  • Very late extensions of time require both arguability and explanation: Where the appeal is not arguable, extreme delay will be fatal; and even potentially relevant new material (such as a later diagnosis) must be linked to the original statutory test and must justify both the merits and the delay.
  • Co-defendant disparity remains a high threshold: Fawcett continues to set a stringent “something gone wrong” standard, insulating sentencing outcomes where differences are explicable by counts, roles, or offender histories.
  • Appellate deference to evaluative sentencing judgments: Where the judge provides detailed reasons rooted in evidence and guideline structure, the Court of Appeal will rarely entertain re-argument of culpability category, role in conspiracy, or the weight of mitigation.

4) Complex Concepts Simplified

Section 4(2) Contempt of Court Act 1981 order
A temporary ban on reporting details of proceedings to prevent a substantial risk of prejudice to other legal proceedings (often pending trials/investigations).
IPP (Imprisonment for Public Protection)
An indeterminate sentence (now abolished for new cases) under which an offender must serve a minimum “tariff” term and is then detained until the Parole Board is satisfied it is safe to release.
Notional minimum term / tariff
The minimum period to be served before first eligibility for parole under an indeterminate sentence (often linked to the equivalent determinate term).
Dangerousness (CJA 2003)
A statutory assessment whether there is a significant risk to the public of serious harm from further specified offences; it can justify indeterminate sentencing where lawful.
Extension of time to appeal
Permission to bring an appeal late; the longer the delay, the more compelling both the merits and the explanation must be.
Newton hearing
A fact-finding hearing held when prosecution and defence dispute facts that would materially affect sentence and cannot be resolved on the papers.
Totality
The principle ensuring the overall sentence is just and proportionate to the total offending, not merely the arithmetic sum of individual sentences.
Disparity
A complaint that co-defendants received inconsistent sentences; it only succeeds if the difference is so unjustified that it suggests a failure of justice (per Fawcett).

5) Conclusion

Thorpe is a clear reaffirmation that the Court of Appeal will not use the post-2012 abolition of IPP as a mechanism to reopen historic IPP sentences that were properly imposed under the law then in force. It also illustrates the demanding standards for very late appeals: absent an arguable error at the time and a credible explanation for delay, an extension will be refused.

On the contemporary determinate sentences, the judgment confirms robust appellate restraint where the sentencing judge has transparently applied guidelines, justified role/culpability findings on evidence, addressed mitigation (including neurodevelopmental evidence) in a structured way, and where any co-defendant disparity is rationally explicable rather than indicative of injustice.