Introduction

In FBD, R. v [2025] EWCA Crim 1370, the Court of Appeal (Criminal Division) revisited a very substantial aggregate sentence imposed for historical sexual offending against five child victims and clarified two important areas:

• How the principle of totality should be applied to ensure proper differentiation between multi‑incident and single‑incident counts—specifically, when concurrency is required to achieve proportionality; and
• How to calculate release eligibility where a standard determinate sentence runs consecutively to Special Custodial Sentences for an offender of particular concern (SOPC), including the interplay with the Criminal Justice Act 2003 and the 2024 Order on requisite custodial periods.

The appellant (FBD) was convicted after trial of ten counts of indecent assault on a male (1956 Act) and two counts of indecency with a child (1960 Act). The offences, committed between 1998 and 2001, involved five boys: his two stepsons (C1 and C2) and three of their friends (C3–C5). The trial judge imposed an overall sentence expressed as 32 years: a 14‑year standard determinate term (comprising 7 years on count 9 consecutive to 7 years on count 14) followed by a consecutive SOPC of 18 years (16‑year custodial plus 2‑year licence) on counts 4 and 21.

On earlier grounds, the Court had already quashed the Restraining Order and varied the Sexual Harm Prevention Order. This judgment concerns ground 1 alone: whether the aggregate sentence was manifestly excessive. The appeal also raised an error in guideline categorisation for one count (the rape guideline culpability assessment for count 14), and invited the Court to re‑emphasise the proper use of “measured reference” to current guidelines when sentencing historic sexual offences with lower statutory maxima.

Summary of the Judgment

• The Court accepted that the sentencing judge correctly applied the “measured reference” approach to modern guidelines, while being constrained by the historic statutory maxima (paras 17–18, 40).
• The Court identified a categorisation error for count 14: grooming is not a Culpability A factor in the current rape guideline. The offence should have been treated as Category 2B (starting point 8 years) rather than 2A (para 37). The Court deemed the point of limited effect due to other aggravation (ejaculation, offending at home, previous conviction).
• Critically, the Court found the overall sentence manifestly excessive. While very substantial punishment was warranted for “repeat very serious offending,” the aggregate circa 30 years was reserved for cases of a different order of gravity (paras 41–43). The Court reduced the total to 25 years by directing that the two single‑incident 7‑year determinate terms (counts 9 and 14) run concurrently, not consecutively, leaving the SOPC terms untouched (paras 45–46).
• The Court clarified release eligibility for mixed consecutive structures: referral to the Parole Board occurs once the prisoner has served the aggregate of (i) 50% of the standard determinate term (the 40% rule in SI 2024/844 does not apply to these historic offences) and (ii) two‑thirds of the combined custodial terms under the SOPC sentences (paras 47–49).
• Representation order was extended to ground 1 (para 51).

Detailed Analysis

1) Precedents and Guidelines Cited

• R v HJ [2011] EWCA Crim 2753 (para 17). The foundational authority for sentencing historical sexual offences:
  • Courts must sentence by reference to the statutory maxima applicable when the offence was committed.
  • They should, however, give “measured reference” to the current definitive guidelines that match the facts—eschewing a literal reconstruction of historic practice.
  This principle is now reflected in the Guideline on Sentencing historical sexual offences (para 17).
• Definitive Guideline: Rape. The preamble recognises that some cases, e.g. “campaigns of rape,” may justify 20‑year and above sentences. The Court endorsed that this upper range is not confined to “campaign” cases; “repeat very serious offending” can suffice (paras 35, 41).
• R v Jones [2018] EWCA Crim 1499. Cited for the proposition that the same high‑end approach can apply to both rape and sexual assault where the offending is repeated and very serious (para 41). The Court also invoked Jones in endorsing principled totality.
• R v DJ [2015] EWCA Crim 563; AG’s Ref (R v GT) [2024] EWCA Crim 961; R v Horley [2016] EWCA Crim 427; AG’s Ref (R v Charnley) [2010] EWCA Crim 1996 (paras 34, 36). These authorities were marshalled illustratively:
  • The defence argued they show that sentences around the 30‑year mark post‑trial are generally reserved for more aggravated factual matrices.
  • The Crown argued they confirm that very long terms may be appropriate even without a labelled “campaign.”
  The Court reviewed them and concluded they broadly supported the defence’s proportionality argument (para 42).

2) Mapping Historic Offences to Modern Guidelines

The sentencing judge adopted the correct framework (paras 17–19): historic statutory maxima (10 years for the 1956 offences) remain binding, but modern guidelines illuminate harm and culpability. The judge’s mappings were broadly upheld, save for count 14:

• Count 4 (C1): Modern analogue—rape of a child under 13, s.5 Sexual Offences Act 2003. Category 2 harm (severe psychological harm) and Culpability A (grooming; abuse of trust). Starting point 13 years, range 11–17 (para 22).
• Count 9 (C2): Modern analogue—sexual activity with a child, s.10 SOA 2003. Category 1 harm (oral penile penetration; severe psychological harm), Culpability A. Starting point 5 years, range 4–10 (para 23).
• Count 12 (C3): Modern analogue—sexual activity with a child, s.10. Category 2 harm, Culpability A due to grooming; no strict abuse of trust. Starting point 3 years; range up to 6 (para 24).
• Count 14 (C4): Modern analogue—rape. The judge treated it as Category 2A but did not explain the Culpability A factor; grooming, while present on the facts, is not a Culpability A factor under the rape guideline. The Court corrected this to 2B (starting point 8 years; range 7–9), while recognising material aggravation (para 37).
• Count 21 (C5): Modern analogue—rape of a child under 13. Category 2 harm, Culpability A due to grooming. Starting point 10 years; range up to 13 (para 26).

The Court drew a careful distinction between “grooming” and “abuse of trust”:

• Grooming was present across all victims (para 38) and relevant to Culpability A for some modern analogues (e.g., sexual activity with a child; rape of a child under 13).
• But grooming is not a Culpability A factor in the rape guideline (para 37).
• “Abuse of trust” was accepted for the step‑sons (C1, C2), but not for the friends (C3–C5). The judge did not double‑count timing/location as aggravation where abuse of trust was already present (para 39).

3) Totality, Differentiation and Concurrency

The sentencing judge attempted to reflect totality by reducing notional terms before ordering multiple consecutive sentences (para 27). However, the Court found the aggregate still exceeded what was “just and proportionate” (para 41), highlighting:

• The need to differentiate between single‑incident counts (counts 9 and 14) and multi‑incident counts (counts 4 and 21) (para 43).
• The fact that even with serious aggravation and severe psychological harm across multiple victims, the totality must remain calibrated against comparative authority—outcomes around 30 years are reserved for the very most egregious fact patterns (paras 41–43).

Solution: the Court ordered concurrency between the two single‑incident 7‑year terms (counts 9 and 14), leaving the SOPC sentences untouched (para 45). This reduced the aggregate to 25 years while not diminishing the seriousness of the offending against C2 and C4 (para 45).

4) Extended Sentence vs SOPC, and the “Slip Rule” Point

There was post‑sentence correspondence suggesting possible confusion over whether the judge had imposed Extended Sentences for dangerous offenders under s.279 Sentencing Act 2020. The Court dispelled this: the judge did not find “dangerousness” and did not impose an extended sentence; he imposed SOPC sentences under s.278 (paras 20, 27).

Practitioners should note the precision of the sentencing language matters. “Offender of particular concern” denotes the s.278 regime (additional licence plus Parole Board control) and does not require a dangerousness finding, unlike extended sentences.

5) Release Eligibility and the 2024 Order

The Court set out a clear roadmap for release eligibility where a standard determinate sentence is consecutive to SOPC sentences (paras 47–50):

• For SOPC sentences (s.278 SA 2020), release is governed by s.244A CJA 2003: the Secretary of State must refer the case to the Parole Board after the “requisite custodial period”—two‑thirds for those sentenced after 28 June 2022 (s.244A(6)(aa)).
• Where there are consecutive terms, the requisite periods are aggregated: the prisoner must serve the sum of the minimum custodial periods for each term before referral (s.264(2D) CJA 2003).
• For the standard determinate component, the usual threshold is 50%—and the 40% reduction introduced by the Criminal Justice Act 2003 (Requisite and Minimum Custodial Periods) Order 2024 (SI 2024/844) does not apply to these offences because they are listed in the Schedule (para 49).

Applying those rules to FBD’s revised structure:

• Standard determinate sentence: 7 years → 50% = 3.5 years (para 49(1)).
• SOPC custodial terms: 8 years (count 4) + 8 years (count 21) consecutive → total 16 years; requisite custodial period = two‑thirds → 10 years 8 months (para 49(2)).
• Referral to the Parole Board occurs once the aggregate of those minimum custodial periods has been served (3.5 years + 10 years 8 months ≈ 14 years 2 months) (paras 47–49).
• If released, the 2‑year additional licence (SOPC) applies; breach risks recall to custody (para 50).

6) Why the Aggregate Was Manifestly Excessive

The Court expressly acknowledged the “appalling and sustained” nature of the offending, the severe psychological harm across five victims, and the fact that some conduct would now be categorised as rape (paras 21, 35, 41–42). Yet, on comparative review and principled totality:

• Sentences around 30 years are generally reserved for still more aggravated patterns (“a different order of gravity”) (para 42).
• There was insufficient differentiation between single‑incident counts (each at 7 years) and multi‑incident counts (where the judge regarded the offending as among the most serious) (para 43).
• The miscategorisation for count 14, while not decisive, supported the need for recalibration (paras 37, 43).

The Court reduced the total while maintaining severe punishment and ensuring public protection through Parole Board oversight and a two‑year additional licence (paras 45–50).

Impact and Practical Significance

Sentencing of Historic Sexual Offences

• Measured reference to modern guidelines remains the correct approach, constrained by historic maxima (R v HJ). Judges should articulate mapping choices and be vigilant about guideline‑specific culpability factors (e.g., grooming is not a Culpability A factor in the rape guideline).
• Totality requires real differentiation between multi‑incident and single‑incident counts. Concurrency may be necessary to achieve proportionality where otherwise the aggregate would exceed what is “just” in light of comparative authority.
• 20+ year sentences may be justified by repeat very serious offending even without a formal “campaign of rape” label—but aggregates approaching 30 years are exceptional and must be anchored in truly exceptional facts.

Structuring Consecutive SOPC and Determinate Terms

• Be precise about the statutory regime: SOPC (s.278 SA 2020) vs extended sentences (s.279). The former does not require dangerousness; the latter does.
• When explaining release, set out the aggregated calculation clearly: 50% of the determinate term (subject to exclusions in SI 2024/844) plus two‑thirds of the SOPC custodial terms (s.244A and s.264(2D) CJA 2003). Record the inapplicability of the 40% rule where scheduled offences are involved.

For Advocates

• Provide a granular sentencing note that:
  • Maps each count to the correct modern analogue and explains harm/culpability with guideline‑specific factors;
  • Identifies aggravation/mitigation without double‑counting (e.g., avoid treating “home setting” as additional aggravation where “abuse of trust” is already in play, unless conceptually distinct);
  • Addresses totality across the whole indictment and proposes principled concurrency/consecutivity;
  • Explains release consequences under mixed structures.
• Use comparative authorities to calibrate the aggregate, not merely the individual counts.

Complex Concepts Simplified

• Measured reference to current guidelines: For historic crimes, the judge is bound by the old statutory maximum but can use modern guidelines to assess harm and culpability, ensuring contemporary consistency.
• Totality: Sentencing must reflect overall criminality across all counts. Consecutive terms are not automatic; they are used when necessary to reflect distinct harm or seriousness. Concurrency may be appropriate to avoid disproportionate aggregates.
• Culpability/Harm categories: Modern guidelines assign a starting point based on seriousness (harm) and blameworthiness (culpability). Importantly, “grooming” is a Culpability A factor in some sexual offences guidelines but not in the rape guideline.
• SOPC (s.278 SA 2020): A special sentence for certain sexual offences that adds a Parole Board‑controlled release point and a fixed additional licence period. It differs from extended sentences, which require a dangerousness finding.
• Release eligibility in mixed structures: For consecutive standard determinate and SOPC terms, add together the minimum custodial periods (normally 50% for the determinate term and two‑thirds for the SOPC custodial term(s)). Only then must the case be referred to the Parole Board.
• SI 2024/844 (the 40% rule): The Order reducing the requisite custodial period to 40% does not apply to offences listed in its Schedule, which includes the historic sexual offences in this case—so the 50% rule still applies here.
• Jigsaw identification: Even anonymised snippets can combine to identify a complainant in sexual offences cases. The 1992 Act prohibits publication likely to identify a victim during their lifetime unless lawfully lifted.
• Slip rule: The court’s power to correct accidental errors shortly after sentence. Here it was used to amend two sentences shortly after pronouncement; it did not convert SOPC into extended sentences.

Conclusion

FBD is a careful recalibration of a very heavy aggregate sentence for historic sexual offending. The Court reaffirmed core principles:

• Historic maxima govern, but modern guidelines should be used through “measured reference.”
• Totality requires genuine differentiation across counts; concurrency may be necessary to avoid disproportionate aggregates, particularly where single‑incident counts sit alongside multi‑incident counts of greater gravity.
• While 20+ year terms can be justified for repeat very serious sexual offending (without a formal “campaign” label), sentences heading towards 30 years post‑trial are exceptional and must be reserved for the most aggravated fact patterns.
• Guideline fidelity matters: “grooming” is not a Culpability A factor in the rape guideline—an error here, though not decisive, underscored the need for precision.
• Release for consecutive standard determinate and SOPC terms is determined by aggregating the requisite custodial periods, with the 2024 40% rule inapplicable to the scheduled historic sexual offences at issue.

The result—reducing the total to 25 years by making the two single‑incident determinate terms concurrent—preserves the severity appropriately demanded by the sustained abuse of five children while restoring proportionality and providing clear guidance for future cases on totality, guideline mapping, and release calculations in mixed consecutive sentences.