R v AGP [2025] EWCA Crim 1364: Denial and victim‑blaming alone are insufficient to justify an extended sentence; sentencers must be positively satisfied of “significant risk” and consider SHPOs as alternatives

Introduction

This commentary examines the Court of Appeal (Criminal Division) decision in R v AGP [2025] EWCA Crim 1364, delivered on 22 August 2025. The case concerns a sentence appeal following guilty pleas to 14 counts of sexual activity with a child. While the custodial term of 7½ years was upheld, the Court quashed the extended determinate sentence (EDS) imposed under the dangerousness provisions in the Sentencing Act 2020.

At the heart of the appeal was whether the sentencing judge was entitled to find the appellant “dangerous” and impose an EDS, notwithstanding: (i) the appellant’s lack of previous convictions; (ii) the absence of broader evidence indicating a propensity to offend; and (iii) a pre‑sentence report (PSR) that assessed the likelihood of reoffending as low but opined (without clear reasoning) that the appellant posed a high risk of serious harm. The Court reaffirmed the approach in R v Lang [2006] 1 WLR 2509 and clarified that denial of sexual interest in children and victim‑blaming, without more, do not satisfy the threshold of a significant risk of serious harm from further specified offences. The Court further emphasised the need to consider whether a Sexual Harm Prevention Order (SHPO) and ordinary licence/notification regimes could sufficiently mitigate risk before resorting to an EDS.

The judgment also reiterates the operation of statutory anonymity under the Sexual Offences (Amendment) Act 1992, which protects the complainant’s identity and explains the anonymisation of the appellant to preserve that protection.

Background and Key Issues

Appellant: anonymised (“AGP”) to protect the complainant’s identity (Sexual Offences (Amendment) Act 1992).
Offending: sexual activity with a child, occurring between February 2021 and February 2023 at the complainant’s home. The appellant had lived with the complainant’s mother since the complainant was a child.
Sentencing (Crown Court at Canterbury, HHJ Weekes): Extended determinate sentence of 12 years, comprising a custodial term of 7½ years and an extended licence of 4½ years.
Appeal:
- Ground 1 (renewed): custodial term manifestly excessive.
- Ground 2 (with leave): EDS wrong in law/fact; no sufficient basis for a finding of dangerousness under s.280 Sentencing Act 2020.

Summary of the Judgment

Custodial term: The Court refused the renewed application for leave. The 7½ year custodial term fell within a proper exercise of sentencing discretion, reflecting Category 1A guidelines for sexual activity with a child, multiplicity of instances, and mitigation duly weighed.
Extended determinate sentence: The Court found the judge’s assessment of dangerousness flawed. The evidence did not establish a “significant risk of serious harm” from further specified offences. The PSR’s conclusion was insufficiently reasoned; reliance on denial and victim‑blaming alone could not substantiate the threshold. The Court also warned against “reversing the burden” and noted the failure to consider whether risk could be managed by a SHPO and existing supervision/notification regimes.
Outcome: Appeal allowed on Ground 2. EDS quashed. A determinate sentence of 7½ years’ imprisonment was substituted.

Detailed Analysis

1) The sentencing exercise and totality

The sentencing judge treated the final count as the lead offence and, using the Sentencing Council guideline for sexual activity with a child, assessed the lead count as Category 1A with a starting point of 6 years (range 4–10). Given the prolonged period and multiple offences, he took a notional pre‑mitigation sentence of 11 years, reduced by a year for mitigation and by the guilty plea discount to reach 7½ years. The Court of Appeal endorsed that structured approach, finding no error of principle and no manifest excess.

2) The dangerousness test and extended sentences

The extended sentence regime (Sentencing Act 2020) permits an EDS for specified violent or sexual offences only where the court is satisfied that the offender poses a significant risk of serious harm to the public by the commission of further such offences and that extended licence is necessary for public protection. The Court reiterated that this is a forward‑looking, evidence‑based assessment governed by the principles in R v Lang.

3) Precedent: R v Lang [2006] 1 WLR 2509

The Court cited and relied on the Lang guidance, especially para 17(ii), which instructs sentencers to evaluate:

The nature and circumstances of the index offence.
Offending history and any pattern of behaviour.
Social and economic factors (accommodation, relationships, associations, employability, substance use).
Attitudes, thinking, response to supervision, and emotional state.
Assessments in PSRs and medical reports (which guide but do not bind).

Lang thus anchors the “significant risk” inquiry in a structured, multi‑factorial assessment. The sentencer must be positively satisfied on the evidence that the threshold is met; the court is not to search for reasons not to impose an EDS, but rather to determine whether the statutory criteria are affirmatively proved by the material before it.

4) Why the dangerousness finding failed in AGP

No criminal history, no discernible wider pattern: The appellant had no previous convictions. The offending was against a single victim. There was no corroborating material (e.g., digital evidence, associations, lifestyle indicators) of a sexual interest in teenage girls more generally.
PSR tensions not adequately resolved: The report assessed the likelihood of reoffending as low, but opined that the appellant posed a high risk of serious harm to children. The Court held that the “high risk of serious harm” conclusion was insufficiently reasoned and not supported by identified evidence.
Denial and victim‑blaming are insufficient on their own to demonstrate a significant risk of serious harm in future. While relevant to attitude and insight, they cannot carry the dangerousness threshold absent other probative indicators.
Age and “potential for change”: The judge noted the appellant was no longer young and generalised that his capacity for change was limited. The Court acknowledged that could be a factor, but observed that the appellant had not offended previously into his 50s, which militated against a finding of likely future sexual offending against teenage girls.
Reference to a new relationship with a partner whose daughter was a similar age did not assist the dangerousness finding: there was no suggestion of inappropriate behaviour in that context.
Burdens and standards: The judge’s statement that he could not “see anything in [Lang]” preventing a dangerousness finding risked reversing the burden. The question is whether the court is satisfied on the evidence that there is a significant risk; it is not for the defence to show that dangerousness is disproved.
Failure to consider less intrusive risk management: The judge did not consider whether any identified risk could be managed by a Sexual Harm Prevention Order (SHPO), alongside licence and notification requirements. The Crown had not sought a SHPO even when asked. Absent analysis of why those measures would be inadequate, the necessity limb for an EDS was not addressed.

5) The role and limits of PSRs

The Court reaffirmed Lang’s direction that PSRs guide but do not bind the sentencer. Where a PSR draws sharp conclusions (e.g., high risk of serious harm) that sit uneasily with other findings (e.g., low likelihood of reoffending), the report must clearly articulate the evidence and reasoning bridging that gap. Here, the report essentially relied on denial of sexual attraction to children and victim‑blaming; the Court found that reasoning too thin to justify an EDS.

6) The necessity of considering SHPOs and other controls

An EDS extends post‑release supervision beyond the ordinary licence period. Before deploying that exceptional power, a sentencer must consider whether risk can instead be managed by:

Ordinary determinate sentence licence conditions.
Sex offender notification requirements.
Sexual Harm Prevention Orders tailored to the identified risks (e.g., restrictions on contact with children, residence, unsupervised access, digital/internet use, travel, and associational limits).

The failure to analyse why those tools would not suffice was an additional flaw in the decision to impose an EDS.

Impact and Significance

Clarifies the evidential threshold for EDS: Denial, minimisation, and victim‑blaming are relevant but insufficient, without more, to meet the “significant risk of serious harm” standard in sexual cases.
PSR drafting and scrutiny: Probation authors should ensure that any “high risk of serious harm” conclusion is tightly reasoned and evidence‑linked, especially where actuarial or structured tools rate likelihood of reoffending as low. Sentencers should interrogate gaps.
Burden and approach: Courts must be positively satisfied on the evidence—do not default to EDS unless criteria are clearly met. Language suggesting a search for obstacles to EDS (“nothing to prevent”) risks legal error.
Mandatory consideration of alternatives: SHPOs, notification, and licence regimes must be assessed before concluding that an extended licence is necessary for public protection.
Advocacy and prosecution practice: The Crown should assist the court on dangerousness and protective orders. If seeking EDS, the prosecution should marshal specific evidence of a significant risk of serious harm (pattern, propensity, breaches, related material); if not, the court should be reminded of SHPO as the primary alternative.
Sentencing consistency: The Court endorsed a robust application of the sexual offences guideline and totality for the custodial term, while demanding rigour on the distinct and higher threshold for EDS.

Complex Concepts Simplified

Extended Determinate Sentence (EDS): A sentence comprising a custodial term plus an extended licence period, available for certain violent/sexual offences if the offender poses a significant risk of causing serious harm by committing further specified offences, and extended supervision is necessary to protect the public.
Dangerousness (Sentencing Act 2020 s.280): The statutory idea that the offender presents a significant risk of serious harm from further specified offences. It is forward‑looking and evidence‑based.
Significant risk of serious harm: More than a mere possibility; a real, evidenced likelihood of further offending that would cause serious physical or psychological harm.
R v Lang guidance: A structured checklist for assessing dangerousness—consider current offence, past behaviour, patterns, social context, attitudes, and professional assessments; PSRs guide but do not decide the issue.
SHPO (Sexual Harm Prevention Order): A civil order imposing tailored prohibitions to manage sexual risk in the community (e.g., restricting access to children, internet use, residence). Breach is a criminal offence.
Notification requirements (“sex offender register”): Statutory duties to notify police of personal details and changes, enabling risk monitoring.
Guilty plea credit: A reduction in sentence length to reflect an early admission, commonly 25% when entered at the first reasonable opportunity in the Crown Court.
Category 1A (sexual activity with a child guideline): A harm/culpability categorisation indicating higher seriousness and a starting point that can be adjusted up or down with aggravating/mitigating features and the totality principle.

Precedents and Authorities Discussed

R v Lang [2006] 1 WLR 2509: The leading authority on assessing dangerousness. The Court applied para 17(ii) to emphasise that:
- The assessment must consider offence features, past conduct, patterns, social context, attitude, and professional evaluations.
- PSRs are influential but not determinative; courts must make their own evaluative judgment.
- The focus is on a “significant risk of serious harm,” not simply any risk or general unease about the offender’s character.
Sentencing Act 2020 (s.280 referenced): The statutory framework governing dangerousness and extended sentences for specified offences. The Court applied its criteria and found them unmet on the evidence.
Sexual Offences (Amendment) Act 1992: Reiterated at the outset to explain the statutory lifetime anonymity of complainants in sexual cases and the anonymisation of the appellant to preserve that protection.

Legal Reasoning in Depth

The Court of Appeal’s reasoning proceeds in two distinct phases:

Custodial term (no error): The trial judge conscientiously applied the guideline, accounted for multiplicity and duration to set a notional sentence, then identified and weighed mitigation and plea. The appellate court’s role is not to refashion that evaluative judgment unless there is error of principle or manifest excess. There was neither.
Extended sentence (error): The making of an EDS requires positive satisfaction, on cogent evidence, of a significant risk of serious harm in future. The judge’s reasons emphasised:
- Appellant’s age and asserted limited capacity for change.
- Denial of sexual attraction to children and attribution of blame to the victim.
- “Risk‑taking” nature of the index offences.
- A new relationship with a partner who had a daughter of a similar age.
- The PSR’s view of high risk of serious harm post‑release.
The Court evaluated each point against Lang’s criteria and found the evidential foundation lacking. Age cuts both ways, and the absence of prior offending into the appellant’s 50s undermined predictions of future risk. The appellant’s denial and minimisation were relevant to insight but, without supportive indicators (patterned offending, corroborative material, breaches, grooming of others, etc.), they were not enough. The reference to the new relationship lacked any evidential anchor of inappropriate conduct. Most importantly, the PSR’s high‑harm conclusion was not “well‑reasoned” in the Lang sense; it did not identify a factual platform justifying the leap from “low likelihood” to “significant risk” of serious harm.

Finally, the Court found that the judge’s formulation—seeing “nothing in Lang” to prevent a dangerousness finding—risked inverting the required approach. The test requires the court to be affirmatively satisfied that the statutory criteria are met; it is not for the defence to demonstrate why dangerousness should not be found. The omission to consider whether a SHPO, plus licence and notification, could adequately manage risk compounded the error on the “necessity” limb for imposing an EDS.

Practical Guidance and Future Implications

For sentencers:
- Articulate clearly the evidence demonstrating a significant risk of serious harm; identify how each Lang factor points to future risk.
- Scrutinise PSR conclusions for reasoning; ask for clarification where a “low likelihood” assessment sits alongside a “high serious harm” conclusion.
- Record consideration of SHPOs, notification, and licence conditions, and explain why they would or would not suffice.
- Avoid language that suggests the burden has shifted to the offender; the court must be positively satisfied on the evidence.
For prosecutors:
- If inviting an EDS, marshal concrete indicators: prior convictions; similar allegations; digital/material evidence indicating sexual interest; past breaches/non‑compliance; grooming patterns; expert assessments.
- Where not seeking an EDS, assist with a tailored SHPO and conditions to manage risk effectively.
For defence practitioners:
- Interrogate PSR reasoning; challenge unparticularised assertions of high risk of serious harm.
- Offer structured proposals for licence conditions and a tailored SHPO to address any legitimate risk concerns without resort to EDS.
For PSR authors:
- Make explicit the evidential basis linking current facts to predictions of significant risk of serious harm.
- Explain, where relevant, how a low likelihood of reoffending can coexist with high potential seriousness, and why that synthesis still reaches the statutory “significant risk” threshold.

Media and Reporting Note

The Court restated the statutory anonymity regime under the Sexual Offences (Amendment) Act 1992, which prohibits publication of information likely to identify the complainant during her lifetime, unless lawfully waived or lifted. The anonymisation of the appellant’s name was necessary to protect the complainant’s anonymity in light of their relationship.

Conclusion

R v AGP re‑centres the dangerousness test on evidential discipline and the structured Lang analysis. It confirms that:

Denial, minimisation, and victim‑blaming—though relevant to insight—do not, without supporting evidence, meet the threshold for an EDS.
PSRs must be reasoned and evidence‑linked; courts are guided but not bound by them.
Sentencers must be positively satisfied of a significant risk of serious harm and explain why ordinary licence, notification, and SHPOs are insufficient before imposing an EDS.
The custodial term here, grounded in the guideline and totality, was unimpeachable; the extended element was not.

The case thus refines the practical application of dangerousness and extended sentences in sexual offending, reinforcing that EDS is an exceptional instrument reserved for cases where the statutory criteria are demonstrably met and lesser risk management tools are genuinely inadequate.