R v Gibson [2025] EWCA Crim 1256: Post‑sentence ADHD diagnosis insufficient to displace a dangerousness finding; pre‑sentence report not mandatory where unnecessary

Court: England and Wales Court of Appeal (Criminal Division)

Judgment date: 7 August 2025

Judge: Sir Robin Spencer

Introduction

This commentary analyses the Court of Appeal’s decision in R v Gibson, a renewed application for an extension of time and for leave to appeal against an extended determinate sentence (EDS) imposed in October 2021 for two aggravated burglaries, two assaults on emergency workers, and criminal damage. The case raises three interlinked issues of ongoing practical significance:

When a Crown Court may make a dangerousness finding and impose an EDS without obtaining a pre‑sentence report (PSR) under the Sentencing Act 2020.
When post‑sentence psychiatric material—here, a 2024 ADHD diagnosis—can be received as fresh evidence on a sentence appeal under section 23 of the Criminal Appeal Act 1968 and whether it can undermine a finding of dangerousness.
How delay and merit interact on applications for very late appeals against sentence.

The applicant, who pleaded guilty, received an EDS of 13 years 2 months (custodial term 8 years 2 months; extended licence 5 years) for a pair of Category 1A aggravated burglaries involving weapons, threats to kill, violence to multiple occupants, and thefts, with concurrent sentences for the assaults. Nearly three years later, he sought to appeal, arguing (i) the sentencing judge should have obtained a PSR before finding dangerousness; and (ii) newly available psychiatric material diagnosing adult ADHD undermined the dangerousness finding and the necessity for an EDS.

Summary of the Judgment

Extension of time and leave refused. The Court found no arguable ground of appeal and accordingly refused both the 1,028‑day extension and leave to appeal.
PSR not mandatory where unnecessary. While a PSR is usually the better course before making a dangerousness finding, the sentencing judge was justified on the facts and history in not obtaining one. Section 30 of the Sentencing Act 2020 permits that approach and section 30(4) confirms that any failure does not invalidate the custodial sentence.
Appellate court need not obtain a PSR. Sections 23(1)–(2) of the Sentencing Act 2020 do not require the Court of Appeal to obtain a PSR where the lower court was justified in dispensing with it or where it is otherwise unnecessary at the appellate stage.
Fresh psychiatric evidence failed the section 23 test. The notes from the prison psychiatrist (diagnosing adult ADHD in 2024) did not address culpability or risk at the time of the 2021 offending and so did not provide an arguable basis to challenge the EDS or the five‑year extension period.
Dangerousness finding upheld. The facts (two Category 1A aggravated burglaries with weapons and threats, repeat violence) and the applicant’s extensive record supported the judge’s conclusion of “significant risk of serious harm” from further specified offences.
Delay explained but irrelevant given lack of merit. The Court emphasized that where the proposed appeal is not arguable, protracted delay cannot rescue the application.

Detailed Analysis

1. Statutory and Guideline Framework

Extended Determinate Sentences (EDS): Section 279 of the Sentencing Act 2020 empowers a court to impose an EDS for specified violent/sexual offences where the offender is “dangerous”—that is, there is a significant risk to members of the public of serious harm by the commission of further specified offences.
Pre‑sentence reports: Under section 280(2) read with section 30(2) of the Sentencing Act 2020, a court must obtain and consider a PSR before concluding an offender is “dangerous,” unless it considers it unnecessary to do so in the circumstances of the case. Section 30(4) clarifies that a custodial sentence is not invalidated by the failure to obtain a PSR.
Appeal court PSR duty: Sections 23(1)–(2) SA 2020 provide that the appeal court must obtain a PSR if none was obtained below unless the lower court was justified in not obtaining one or it is unnecessary for the purposes of the appeal.
Fresh evidence on sentence: Section 23 of the Criminal Appeal Act 1968 governs admission of fresh evidence, requiring the court to consider admissibility, credibility, whether the evidence could provide a ground to allow the appeal, and whether there is a reasonable explanation for not adducing it earlier.
Aggravated burglary guideline: The Sentencing Council guideline places these offences at Category 1A with a starting point of 10 years and a range up to 13 years’ custody. The sentencing judge identified both burglaries as Category 1A, stating a total after‑trial figure of 12 years for the pair, reduced to 8 years for full guilty plea credit, with 2 additional months for the separate assaults, before applying the EDS structure.

2. Precedents Cited

The Court expressly relied on R v Allen [2019] EWCA Crim 1772, highlighting the following:

“The decision to make a finding on the issue of dangerousness without a pre‑sentence report is one which requires a careful justification. Usually the Crown Court will require the assistance of such a report… Many judges would, nevertheless, have obtained a report dealing with dangerousness. This will usually be the better course... These things are justified in such cases where very long extended sentences are under consideration, which will require a decision of the Parole Board in due course.”

The Court distinguished Allen factually (a 22‑year‑old with limited violent antecedents) from Gibson’s aggravated burglaries and extensive, violence‑laden record, but endorsed Allen’s core principle: a PSR is the usual and better course, yet not an inflexible prerequisite where the judge has sufficient information to assess risk reliably.

3. The Court’s Legal Reasoning

3.1 Dangerousness without a PSR

The Court held the sentencing judge was justified in not obtaining a PSR before imposing an EDS, because:

The offending was exceptionally serious: two Category 1A aggravated burglaries committed back‑to‑back, featuring knives (albeit sheathed), forced entry (including a false claim of being “the Police”), repeated punches and kicks, threats to stab and scald, thefts of keys/cards/phones, and intimidation of multiple victims in their homes.
The applicant’s antecedents were striking: 42 convictions for 102 offences, including nine against the person and a history of assaults on police and authority figures.
The judge made express findings on dangerousness with awareness of the statutory test and indicated during submissions that she had the issue “very much in mind.”
Section 30(2) SA 2020 permits dispensing with a PSR where unnecessary, and section 30(4) makes clear that failure to obtain a PSR does not invalidate a custodial sentence.

On appeal, sections 23(1)–(2) SA 2020 did not compel the Court to obtain a PSR, because the Crown Court’s approach was justified and a PSR was unnecessary to determine the unarguable appeal.

3.2 Fresh psychiatric evidence and section 23 CAA 1968

The proposed “fresh evidence” comprised prison medical notes (not a formal expert report) prepared in January 2024 by a psychiatrist who recorded a diagnosis of adult ADHD and a plan for treatment, with medication apparently commenced in August 2024. The Court refused to admit this material because:

There was no expert opinion connecting the ADHD diagnosis to the applicant’s culpability or to risk at the time of the 2021 offences.
The notes suggested dissocial personality elements and significant cocaine and alcohol misuse—factors that could equally aggravate risk rather than mitigate it.
The materials did not show how, if at all, ADHD reduced culpability or undermined the judge’s conclusion that the applicant posed a significant risk of causing serious harm by further specified offences.
Even if the notes were credible and admissible, they did not “afford any ground for allowing the appeal,” a key limb of section 23 CAA 1968.

The Court added that any positive development in treatment may be relevant for the Parole Board when assessing risk management and release, but does not retrospectively invalidate an otherwise sound sentence.

3.3 The extended sentence and the five‑year extension period

The Court endorsed the structuring of the EDS. Given the seriousness of the two aggravated burglaries and the offender’s sustained violent history, an extended licence of five years was within the judge’s discretion for protection of the public. The psychiatric notes did not provide any principled basis to say that the extension period was either wrong in principle or manifestly excessive.

3.4 Delay and extensions of time

The applicant sought an extension of 1,028 days, citing difficulty obtaining medical records and legal advice and awaiting medication. The Court’s approach was orthodox: the decisive factor is the arguability of the proposed appeal. Where there is no arguable ground, even a sympathetic explanation for delay cannot justify granting a very late extension. Here, given the lack of merit, the extension was refused.

4. Impact and Practical Implications

4.1 Sentencing judges

While a PSR is “usually the better course” before making dangerousness findings and imposing an EDS (Allen), Gibson confirms that a judge may dispense with a PSR where satisfied it is unnecessary in the circumstances of the case (SA 2020, s30(2)).
Judges should articulate the basis for finding dangerousness—drawing on the facts, antecedents, and any observed behaviour—to demonstrate why a PSR is unnecessary.
When imposing very long custodial terms or lengthy extension periods, obtaining a PSR will often remain prudent, particularly where the offender’s psychiatric/psychological profile is complex or contested.

4.2 Defence and prosecution advocates

Defence submissions seeking to resist dangerousness or to mitigate an EDS must be supported by timely and specific expert evidence linking any mental health or neurodevelopmental condition to:
- (i) reduced culpability at the time of the offences; and/or
- (ii) a reduced future risk of serious harm with credible treatment and risk‑management proposals.
Post‑sentence diagnoses that do not address the position at the time of offending or the statutory risk test are unlikely to meet the section 23 CAA threshold on appeal.
Prosecutors should be ready to argue that impulsivity and substance misuse can heighten risk and support dangerousness, particularly where violent offending is persistent and escalating.

4.3 Appellate practice

Gibson underscores the Court of Appeal’s restraint in interfering with dangerousness assessments where the Crown Court had a solid factual basis and a well‑documented offending history.
Arguments about the omission of a PSR will rarely succeed if the judge had a clear evidential foundation for dangerousness and expressly addressed the statutory test.
Delay in appealing will not be excused unless the grounds are arguable; where merit is lacking, very long extensions will be refused notwithstanding explanations.

Complex Concepts Simplified

Dangerousness (EDS test): The court must be satisfied there is a “significant risk” to the public of “serious harm” from the offender committing further specified offences. This focuses on future risk, informed by the index offences, criminal history, patterns of violence, and relevant assessments.
Extended Determinate Sentence (EDS): A sentence comprising a custodial term plus an added “extended licence” period for public protection. Release is subject to Parole Board assessment of risk; the extended licence permits longer supervision in the community.
Pre‑sentence report (PSR): A report—usually by the Probation Service—considering risk, personal circumstances, and suitability for sentences. Normally obtained before making a dangerousness finding, but the court can decide it is unnecessary in a particular case.
Section 23 CAA 1968 “fresh evidence” test: To admit new evidence on appeal, the Court considers whether it is credible, admissible, explains why it was not adduced earlier, and—critically—whether it could affect the result (i.e., provide a ground to allow the appeal).
ADHD in sentencing: A diagnosis can be relevant if it demonstrably affected the offender’s culpability at the time, or if treatment credibly reduces future risk. A diagnosis alone, especially post‑sentence and unconnected to the offending period, will seldom suffice to alter sentence outcomes.
Aggravated burglary Category 1A: The highest harm and culpability under the guideline, typically involving weapons, violence, and serious distress to victims in their homes. Starting point 10 years, range up to 13 years’ custody.

Conclusion

R v Gibson confirms and clarifies key sentencing and appellate principles in the dangerousness arena:

A PSR remains “usually the better course” for dangerousness, but it is not an immutable prerequisite. Where the facts of the offences and the offender’s antecedents provide a sufficiently robust foundation, a judge may lawfully and properly proceed without one.
On appeal, the Court will apply section 23 CAA rigorously. Post‑sentence psychiatric developments—such as a new ADHD diagnosis—must be tied to culpability and risk at the time of the offences to be capable of disturbing a dangerousness finding or the imposition of an EDS.
Lengthy delays in lodging appeals will not be overcome absent arguable merit; the Court will refuse extensions where the grounds are not sustainable.

Practically, Gibson will be cited for two propositions. First, in exceptional cases with compelling factual and antecedent evidence of risk, the absence of a PSR will not vitiate an otherwise sound EDS. Second, the mere existence of a later mental health diagnosis is insufficient as “fresh evidence” unless it cogently addresses culpability and risk at the material time. The decision therefore both consolidates existing law (including Allen) and offers pointed guidance on the evidential quality required to challenge dangerousness and extended licences in sentence appeals.