IPP as “Second-Last Resort”: Sentencers Must Expressly Consider and Explain Why an Extended Determinate Sentence Is Insufficient
1. Introduction
R v Wilkinson ([2025] EWCA Crim 1573) concerned a very late (over 15 years) attempt to appeal a sentence imposed in 2010 for
inciting a child to engage in sexual activity contrary to s.10 Sexual Offences Act 2003. The applicant had pleaded guilty on the day of trial and
was sentenced to imprisonment for public protection (“IPP”) with a minimum term of two years.
The applicant argued that, given the post-2008 sentencing regime, the Crown Court should have imposed an extended determinate sentence rather than the
highly restrictive (and “draconian”) IPP. The Court of Appeal had to decide:
- whether the sentencing judge had lawfully and adequately considered the statutory sentencing options available in 2010; and
- whether it was in the interests of justice to grant an exceptionally long extension of time to appeal.
The judgment also begins with a reminder that the Sexual Offences (Amendment) Act 1992 anonymity regime applies, prohibiting publication of matters
likely to identify the complainant during their lifetime unless lawfully waived or lifted.
2. Summary of the Judgment
The Court of Appeal:
- granted the application for an extension of time (5592 days);
- granted leave to appeal; and
- allowed the appeal against sentence by quashing the IPP and substituting an extended determinate sentence of
12 years comprising 4 years’ custody plus an 8-year extended licence period, alongside a
Sexual Harm Prevention Order without limitation of time.
While accepting the applicant plainly met the test of dangerousness and posed a high risk to young males, the court held that the sentencing judge
had erred by failing to give specific and express consideration to whether an extended sentence would provide adequate public protection and by moving
from “no life sentence” to “IPP necessary” without sufficient explanation.
3. Analysis
3.1 Precedents Cited
Attorney-General's Reference (No 55 of 2008) [2008] EWCA Crim 2790; [2008] 2 Cr. App. R. (S.) 22
This authority was central. It established (in the post-amendment landscape) that where dangerousness is found and multiple disposals are available, an IPP is not the
default: it is a “last resort” (save for discretionary life sentences). Lord Judge CJ stressed that sentencers should have in mind “all the
alternative and cumulative methods” of protecting the public, and that if an extended sentence can achieve appropriate protection, it should be
imposed instead of IPP—a fact-specific judgment.
In [2025] EWCA Crim 1573, the court treated that guidance as requiring not merely an implicit balancing exercise, but a sentencing process that
demonstrates active engagement with the available alternatives—especially where the pre-sentence report itself raises an extended sentence as an
option.
This earlier decision was cited for the proposition that an IPP has “a great deal in common with a life sentence”: it is indeterminate, justified by public
protection, and release depends on Parole Board assessment of risk. In the present case, that likeness sharpened the Court of Appeal’s criticism: once the judge had
concluded a life sentence was not necessary, a properly reasoned explanation was required before imposing the closely analogous (and “second-last
resort”) IPP.
Cited as further confirmation (in the pre-amendment regime) of the conceptual similarity between IPP and life imprisonment. Its relevance here lay in reinforcing the
appellate court’s expectation of careful justification for indeterminate-type outcomes.
Roberts served two roles:
-
Penal policy change is not, by itself, a basis to reduce legacy IPP sentences. The abolition of IPP by the Legal Aid, Sentencing and Punishment of
Offenders Act 2012 does not entitle the court to revisit sentences properly imposed under the prior regime.
-
However, the court may intervene where the sentencing judge did not follow the CJA 2003 as interpreted by appellate authority. The present court
relied on the exception identified in Roberts (at [42]): if the original judge failed to apply the statutory provisions as construed by the Court of
Appeal, the sentence is open to challenge notwithstanding the general reluctance to revisit lawfully imposed IPPs.
The court also applied Roberts on the principles governing extensions of time, focusing on (i) reasons for delay and (ii) whether the
interests of justice favoured an extension in light of the merits.
3.2 Legal Reasoning
(a) The statutory context in 2010: post-2008 discretion
The court emphasised a critical historical point: after the Criminal Justice and Immigration Act 2008 amendments (effective 14 July 2008), a finding of dangerousness
no longer compelled an IPP/life sentence. Instead, the court had a structured choice including:
discretionary life, IPP (s.225), extended determinate sentence (s.227), or simple determinate.
That change made the sentencing reasoning more demanding. The sentencer must decide which disposal achieves public protection with proper regard to proportionality and
necessity—rather than treating IPP as the automatic consequence of dangerousness.
(b) The error: absence of express consideration of an extended sentence
The Court of Appeal accepted the seriousness of the offending and the applicant’s entrenched pattern of predatory behaviour (including grooming), as well as the
unchallenged finding of dangerousness. The appellate intervention did not rest on a reassessment of risk, but on the
sentencing methodology and reasoning.
Two features were decisive:
-
The pre-sentence report explicitly raised an extended sentence as an alternative mechanism to manage risk through prolonged licence and recall.
-
The judge’s remarks moved from “not serious enough for life” to “IPP necessary” with no reference to an extended determinate sentence and
no explanation why a fixed custodial term plus extended licence (and SHPO) would be inadequate.
The court inferred that the judge may not have been reminded of the relevant guidance (including by counsel), but treated that as immaterial to the legal correctness
of the outcome: the remarks themselves did not demonstrate compliance with the approach mandated by appellate authority.
(c) Why the Court of Appeal substituted an extended determinate sentence
Having concluded the original approach fell within the Roberts exception, the court re-sentenced on the material available at the time, and
“without regard” to the fact the applicant had in reality served more than 15 years.
It adopted the original judge’s notional determinate term of 4 years (based on guideline assessment and aggravating features), but held that public
protection could properly be achieved by an 8-year extended licence (for a total of 12 years), bolstered by the
Sexual Harm Prevention Order. In effect, it held the “second-last resort” indeterminate sentence was not necessary on these facts.
(d) Extension of time: merits and explanation for delay
Applying R v Roberts [2016] EWCA Crim 71; [2016] 2 Cr App R (S) 14, the court weighed:
-
the difficulty reconstructing representation/records after many years (including the “McCook enquiries” and the absence of recollection/notes), and the applicant’s
repeated but unsuccessful efforts to secure solicitors; and
-
the substantive merit of the sentencing complaint (a genuine legal error in approach).
The combination was sufficient to render the grant of a very long extension in the interests of justice.
3.3 Impact
(a) Sentencing practice in legacy IPP contexts
The judgment reinforces a practical rule: where an offender is found dangerous under the post-2008 regime (and historically, where similar discretionary choices
exist), a judge must do more than state IPP is “necessary”. There must be clear reasoning showing why an extended determinate sentence
(potentially combined with other protective orders) is insufficient.
This is likely to be cited in:
- appeals against historic IPP sentences where the transcript reveals a “life not necessary → IPP necessary” leap; and
- extension-of-time applications in which applicants rely on a demonstrable legal misdirection or failure to follow binding guidance.
(b) The continuing relevance of “necessity” despite IPP abolition
Although IPP was abolished for post-2012 offending, the court reaffirmed the Roberts principle: abolition does not itself justify revisiting earlier
sentences. The present case shows the narrow but important route around that restraint: where the original sentence was imposed without properly applying the statutory
framework as interpreted by this Court, the appeal court can and will intervene.
(c) Procedural discipline: reasons matter
The decision underscores that robust sentencing outcomes must be accompanied by transparent reasoning, especially for indeterminate-type sentences.
Lack of express engagement with a key statutory alternative can itself constitute appealable error.
4. Complex Concepts Simplified
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IPP (Imprisonment for Public Protection): an indeterminate sentence. The court sets a minimum term (tariff). After that, release is not
automatic; it depends on the Parole Board deciding risk is manageable. It is designed primarily for public protection.
-
Extended determinate sentence: a fixed prison term plus an extended licence period after release. During licence, the offender can
be recalled to prison if risk escalates or conditions are breached. It provides structured public protection without indeterminacy.
-
Dangerousness: a statutory assessment that the offender poses a significant risk of serious harm through further specified offences, unlocking
certain sentencing powers (including extended sentences and—historically—IPP).
-
“Last resort” / “second-last resort”: appellate shorthand indicating that an IPP should be imposed only when lesser measures (especially extended
sentences) cannot adequately protect the public; only a discretionary life sentence is treated as more severe.
-
Extension of time: permission to bring an appeal late. The court considers reasons for delay and whether it is in the interests of justice,
including the strength of the proposed appeal.
-
Sexual Harm Prevention Order (SHPO): a civil preventative order imposing restrictions to protect the public from sexual harm; breach is a criminal
offence. Here it was imposed without time limit, strengthening community protection measures.
-
Sexual Offences (Amendment) Act 1992 anonymity: generally prohibits publication of information likely to identify a complainant in a sexual offence
case during their lifetime unless lifted/waived under the Act.
5. Conclusion
[2025] EWCA Crim 1573 crystallises a rule of sentencing legality in the post-2008 dangerousness regime: when IPP is available, the court must
expressly consider whether an extended determinate sentence (and other protective measures) would provide adequate public protection,
and must give a reasoned explanation if it concludes only IPP will suffice—particularly where it has already ruled out life imprisonment.
The judgment also shows that even very late appeals may succeed where the transcript reveals a failure to follow binding sentencing guidance and where the interests of
justice favour permitting the appeal despite extensive delay.