Clarifying the Requirement for Dangerousness Findings under Section 280 of the Sentencing Act 2020

Introduction

This commentary examines the Court of Appeal’s decision in R v Fowler [2025] EWCA Crim 586, delivered on 15 April 2025 by Mrs Justice Stacey. The appellant, Professor Raymond Fowler, had been convicted in the Crown Court at Leicester in July 2023 of multiple counts of sexual and indecent assault on three separate child complainants over a period spanning 1990 to 2008. Following his conviction and the imposition of an extended sentence with a dangerousness finding under section 280 of the Sentencing Act 2020, Professor Fowler sought leave to appeal both against conviction and sentence. The issues raised included disclosure and non-disclosure of fresh evidence, jury direction and indictment drafting, and the appropriateness of the dangerousness finding and overall sentence length.

Summary of the Judgment

The Court of Appeal dismissed Fowler’s renewed application to appeal against conviction. It held that:

The three complainants’ allegations were properly admitted on a cross-admissibility basis under section 101(1)(c) and (d) of the Criminal Justice Act 2003, and no unfairness or procedural irregularity had rendered the convictions unsafe.
The fresh evidence proposed (an email from one complainant’s mother and another complainant’s prior convictions) lacked the necessary “lurking doubt” or substantial probative value to undermine the jury’s verdict.

On the sentence appeal, the court granted leave to appeal. It quashed the extended sentence’s dangerousness finding and substituted a determinate custodial term of eight years for count 1, leaving the concurrent sentences on the remaining counts intact. The court concluded that the sentencing judge had failed to articulate adequate reasons for the dangerousness finding in the face of an internally inconsistent pre-sentence report.

Analysis

Precedents Cited

Sexual Offences (Amendment) Act 1992, section 3: Protects the anonymity of alleged victims of sexual offences during their lifetime.
Criminal Justice Act 2003, section 101(1)(c) and (d): Governs admissibility of “cross-admissible” bad character evidence and joint trials of complainants whose allegations are of a similar character.
R v A [2015] EWCA Crim 177: Establishes that an indictment containing “on two or more occasions” need not be amended where the jury is adequately directed that the charge relates to a single occurrence.
Brewster and Cromwell [2010] EWCA Crim 1194: Addresses admissibility and probative value of bad character evidence of non-defendants.
R v BVY [2024] EWCA Crim 1355: Confirms the highly fact-sensitive nature of applications to adduce non-defendant character evidence.
Sentencing Act 2020, section 280: Enables the court to impose an extended sentence where an offender is deemed “dangerous” — requiring clear reasoning for any such finding.

Legal Reasoning

On the conviction appeal, the court applied the well-established test for unsafe convictions and “lurking doubt.” It observed that:

The jury heard all relevant information, including the fact that two complainants had loose knowledge of each other’s allegations, and the cross-admissibility application was unopposed by defence counsel.
Neither fresh piece of evidence—the email nor C3’s convictions—would have materially altered the jury’s assessment of credibility. The complainants’ accounts were independent, consistent over time, and supported by contemporaneous disclosures.
No procedural irregularity in jury directions or indictment drafting rendered the convictions unsafe.

On the sentence appeal, the court focused on the dangerousness finding under section 280. It emphasized that:

A sentencing judge must identify and explain the specific factors that justify treating an offender as dangerous.
The pre-sentence report in this case contained an internal inconsistency: actuarial tools (OGRS and RSR) assessing a low reconviction risk, but a later narrative conclusion asserting a high risk of harm.
No explanation was provided by the judge to reconcile those conflicting assessments nor to elucidate why a determinate sentence would be inadequate to protect the public.

Absent clear reasoning addressing the inconsistency, the dangerousness finding could not stand. The court therefore substituted a determinate sentence consistent with the judge’s stated figure for the leading offence.

Impact

This decision has significant implications for sentencing practice:

It reinforces the requirement that sentencing judges must articulate the factual and evaluative basis for any dangerousness finding under section 280 of the Sentencing Act 2020.
Sentencers must carefully review pre-sentence reports for internal coherence and, where they disclose conflicting risk assessments, must explain their evaluative choice in open court.
Failure to do so risks reversal on appeal and conversion to a determinate sentence, potentially undermining public confidence in extended sentencing provisions.
Defence practitioners should scrutinize pre-sentence reports and, where inconsistencies arise, seek to elicit from the court a clear rationale or to challenge the dangerousness element.

Complex Concepts Simplified

Extended Sentence & “Dangerousness”: An extended sentence combines a custodial term with a period of licence (post-release supervision). Section 280 allows this only if the court is satisfied the offender poses a significant risk of serious harm. The judge must set out why the risk cannot be adequately managed by a standard determinate sentence.

Cross-Admissibility (CJA 2003 s 101): Where multiple defendants or multiple complainants give evidence of similar bad character or similar fact allegations, their accounts may be admitted to support one another, provided the defence does not object.

“Lurking Doubt” Test: On appeal, a conviction may be overturned if fresh evidence or argument gives rise to a residual doubt about its safety, even if the trial was procedurally sound.

Conclusion

R v Fowler marks a clear precedent requiring sentencing courts to explain how they reach a dangerousness conclusion when imposing an extended sentence under the Sentencing Act 2020. The Court of Appeal’s decision underscores that conflicting risk assessments in pre-sentence reports cannot be glossed over. This rigor in sentencing reasoning will guide future applications of section 280 and strengthen the transparency and fairness of extended sentencing.