Extended Sentences Must Be Count-Specific: Global Extension Periods (and “Concurrent” Licence Extensions) Are Unlawful

1) Introduction

The Court of Appeal considered sentence appeals by two applicants convicted of multiple robberies and weapons offences. The sentencing judge found both applicants “dangerous” under the statutory scheme and intended to impose extended sentences. However, the extended sentences were structured unlawfully: a single, “global” extension period was attached to the total custodial term, and the extension period was treated as capable of running “concurrently”.

The central issues were:

• Dangerousness: whether each applicant posed a significant risk of serious harm from further specified offences (Sentencing Act 2020, s 308).
• Structure of extended sentences: whether an extension period can be attached globally to an overall term, or made concurrent.
• Totality and concurrency: for one applicant, whether the sentence for possessing an imitation firearm with intent should be concurrent with the robbery sentence where the weapon was already reflected in the robbery’s culpability assessment.

2) Summary of the Judgment

The Court of Appeal:

• Granted leave to appeal against sentence.
• Upheld the dangerousness findings for both applicants and accepted that extended sentences were necessary to protect the public.
• Allowed one concurrency point: the imitation firearm sentence should have run concurrently with the robbery sentence because both arose from the same incident and the weapon use was already integral to the robbery’s culpability.
• Corrected unlawfully structured extended sentences by quashing and substituting lawful, count-specific extended sentences in line with the sentencing judge’s clear intention.

3) Analysis

3.1 Precedents Cited

The key authority was R v DJ [2015] EWCA Crim 563, [2015] 2 Cr App R(S) 16, cited for the principle that an extended sentence must be structured lawfully: the extension period cannot be bolted on to a “global” total term as if it were a free-standing add-on. The Court of Appeal treated the present case as a straightforward application of R v DJ: the sentencing court must impose extended sentences by reference to individual qualifying counts (or otherwise structure the sentence in a manner the statute permits), not by attaching a single extension period to the overall custodial total.

This precedent directly shaped the outcome: even though the Court of Appeal considered the overall intended lengths not manifestly excessive, the structure was unlawful and required correction.

3.2 Legal Reasoning

(a) Dangerousness under the Sentencing Act 2020, s 308

Section 308 requires the court to assess whether there is a significant risk to the public of serious harm from further specified offences, taking into account:

• the nature/circumstances of the current offences;
• the nature/circumstances of previous convictions;
• any pattern of behaviour; and
• any other relevant information about the offender (including risk assessments and pre-sentence reports).

The Court of Appeal held the sentencing judge was entitled to find both applicants dangerous. The reasoning emphasised:

• Escalation and pattern: acquisitive offending had escalated into robberies involving a knife (for one applicant) and an imitation firearm (for the other), within a context of persistent offending linked to substance misuse and poor compliance.
• Serious harm potential: even where victims did not suffer grave injury, the use of knives (including threats at the neck) and the production of a firearm-like weapon created an obvious and significant risk of serious harm.
• Role of the report writer: it is for the court, not the author of the pre-sentence report, to determine dangerousness; the report assists but need not express a definitive conclusion for the court to make the statutory finding.

(b) The unlawfulness: “global” extension periods and “concurrent” licence extensions

The sentencing judge attempted (both initially and after a slip rule hearing) to impose an extended sentence by:

• calculating a total custodial term across counts, and then
• adding a single two-year extension period to that total, and
• describing the extension as taking effect “concurrently”.

The Court of Appeal held this was unlawful, reiterating that:

• An extension period is not a detachable “extra” that can be attached to an overall total term at large; it must be imposed as part of an extended sentence in a lawful way (as clarified by R v DJ).
• The extension period cannot be “concurrent” in the sense used by the sentencing judge. The extension is an integral component of the extended sentence structure and cannot be treated as if it were another term of imprisonment to be aligned concurrently or consecutively.

(c) Concurrency: avoiding double counting of weapon use

For the applicant sentenced for robbery and having an imitation firearm with intent, the Court of Appeal accepted that consecutive sentences risked double counting where:

• both offences arose from the same incident; and
• the robbery’s culpability category already reflected the production/use of the imitation firearm to threaten violence.

Accordingly, the firearm sentence was made concurrent. However, to reflect the overall seriousness, the Court increased the custodial element for the robbery when substituting the lawful extended sentence.

(d) Appellate correction and the Criminal Appeal Act 1968, s 11(3)

The Court of Appeal quashed and substituted sentences to correct illegality while ensuring it did not offend the prohibition (in s 11(3)) on increasing sentence on appeal. The Court reasoned that the sentencing judge’s intention was always to impose extended sentences of at least the effective length achieved, and the substituted sentences implemented that intention lawfully. The judgment also addressed release mechanics by reference to the Criminal Justice Act 2003 (including s 246A and provisions governing extended sentence release).

3.3 Impact

The decision’s practical significance is structural rather than substantive:

• Sentencing courts: it reinforces that extended sentences must be crafted in a count-specific (and statute-compliant) manner; judges cannot attach a single extension period to the “overall” custodial calculation.
• Slip rule limits in practice: even when attempting correction, a court must not perpetuate the same conceptual error by treating the extension period as a free-standing concurrent/consecutive component.
• Totality and double counting: it underlines careful use of concurrency where the same aggravating feature (weapon use) is central to both the principal offence’s culpability assessment and a related weapons count.

4) Complex Concepts Simplified

• Extended sentence: a special sentence for certain serious offences where the offender is “dangerous”. It comprises (i) a custodial term and (ii) an additional licence period (the “extension”) during which the offender can be recalled if risk escalates.
• Dangerousness (s 308): not a moral label but a statutory risk threshold—whether there is a significant risk of serious harm from further specified offences, assessed using offence facts, criminal history, behavioural patterns, and risk information.
• Concurrent vs consecutive: concurrent terms run at the same time; consecutive terms run back-to-back. The key is to avoid punishing the same feature twice (double counting), while still achieving a just overall sentence (totality).
• Slip rule (Sentencing Act 2020, s 385): a limited power to correct certain errors; it is not a mechanism to redesign a sentence in a way that remains unlawful in substance.

5) Conclusion

[2026] EWCA Crim 1160 confirms that where a court imposes extended sentences, the extension period must be structured lawfully and cannot be added as a “global” appendage to the total custodial term or treated as “concurrent”. The Court of Appeal upheld robust dangerousness findings based on escalation and risk but intervened to (i) correct illegality in sentence structure and (ii) prevent double counting by ordering concurrency between robbery and the connected imitation firearm offence in the same incident.