R v Taylor [2025] EWCA Crim 1186: Sequencing Special Custodial Sentences under s278 Sentencing Act 2020 — Extended Licence Periods Must Not Overlap with Custody

R v Taylor [2025] EWCA Crim 1186: Sequencing Special Custodial Sentences under s278 Sentencing Act 2020 — Extended Licence Periods Must Not Overlap with Custody

Introduction

This commentary examines the Court of Appeal (Criminal Division)’s decision in Taylor, R. v [2025] EWCA Crim 1186, delivered by Lord Justice Dingemans. The appeal raised a technical but important point of sentencing law: how to structure multiple sentences that include special custodial sentences for offenders of particular concern under section 278 of the Sentencing Act 2020 (s278 SA 2020), without creating unlawful overlap between custody and extended licence periods.

The applicant, convicted after trial of a series of historic sexual offences against two brothers (C1 and C2, both anonymised under the Sexual Offences (Amendment) Act 1992), challenged the sentence on three grounds: (i) the Registrar’s reference concerning structural errors under s278; (ii) a complaint that making a particular count (count 19) consecutive rendered the overall term manifestly excessive; and (iii) insufficient allowance for the applicant’s previous good character. The appeal therefore required the Court to reconcile statutory rules on sentence construction with the totality principle and the Sentencing Council’s offence-specific guidance.

Summary of the Judgment

The Court granted leave and allowed the appeal only to the extent necessary to correct structural errors under s278. It otherwise upheld the overall length of the sentence, finding it neither wrong in principle nor manifestly excessive.

  • Good character: The Court reaffirmed the limited weight to be given to previous good character in serious sexual cases, applying the “starred” guidance in the rape guideline. This ground failed.
  • Consecutivity and totality: Making count 19 (involving C2) consecutive did not render the sentence manifestly excessive, particularly when assessed against current guideline levels for analogous offending.
  • s278 error and restructuring: The trial judge’s original approach created unlawful overlap between a concurrent determinate sentence and the extended licence period attached to an s278 sentence. The Court restructured the sentence to ensure licence periods follow, and do not overlap with, custodial terms.

The Court preserved the judge’s intended overall outcome—20 years’ custody with a 2-year extended licence—by:

  • C1 block: Reducing count 10 (rape) from 11 to 10 years’ determinate imprisonment and substituting on count 6 a special custodial sentence of 1 year’s custody plus a 1-year extended licence, made consecutive to count 10. Result: 11 years’ custody + 1-year licence for the C1 block.
  • C2 block: Making count 19 the lead determinate sentence of 5 years; making counts 15 and 17 concurrent to it; and placing the special custodial sentences on counts 16 and 18 (each 4 years’ custody + 1-year extended licence) so that they run consecutive to count 19. Result (as structured): an additional 4 years’ custody (with the s278 counts concurrent with each other) + 1-year licence for the C2 block.

Aggregating both blocks yields the preserved outcome: 20 years’ custody in total with a 2-year extended licence.

Analysis

1) Precedents and Materials Cited

  • Statute: Sentencing Act 2020, s278 (special custodial sentence for certain offenders of particular concern). The section requires a sentence comprising the appropriate custodial term plus a further period of at least one year during which the offender is subject to licence.
  • Offence Framework: Sexual Offences Act 1956 (rape), Indecency with Children Act 1960, and related historic sexual offences.
  • Anonymity: Sexual Offences (Amendment) Act 1992 (lifetime anonymity for complainants).
  • Sentencing Council Guidelines:
    • Rape guideline: “starred” guidance on previous good character/exemplary conduct (limited weight in serious cases; not a proxy for “no previous convictions”).
    • Analogy to the current guideline for inciting sexual activity with a child under 13 (used to benchmark seriousness of historic offending for the manifest excessiveness assessment).

Notably, the judgment turns primarily on statutory construction and guideline application rather than on case law exposition. The Court’s reasoning operates as practical guidance for avoiding s278 structural error.

2) The Court’s Legal Reasoning

a) The s278 structural error

Section 278 SA 2020 requires the special custodial sentence to include (i) an appropriate custodial term and (ii) a separate extended licence period of (at least) one year. That extended licence must follow the custodial term—it cannot run concurrently with time during which the offender remains in custody on any other sentence. The trial judge’s original approach had a determinate sentence running at the same time as the s278 sentence such that, in effect, the extended licence would have begun while the offender was still serving a concurrent determinate term. That is impermissible.

The Court corrected this by:

  • Selecting a lead determinate sentence for each complainant’s block (C1 and C2).
  • Making other determinate counts run concurrently with the lead term to avoid double-counting.
  • Placing the s278 special custodial sentence(s) after the determinate custodial term(s), i.e., consecutively, so that the extended licence follows the end of custody in lawful sequence.
  • Adjusting the length of one determinate sentence (reducing count 10 to 10 years) and substituting a shorter custodial element on the s278 count within the same block (count 6 to 1 year’s custody + 1-year licence) to preserve the original total sentence length while achieving lawful structure.

b) Totality and overall proportionality

The Court emphasised that the sentence must be just and proportionate across all counts and both complainants. While the offending against C1 was more extensive and over a longer period, the harm to both complainants was profound. The Court accepted that the trial judge’s intended total (20 years + 2-year licence) met the totality principle. The structural corrections were therefore crafted to deliver that same outcome lawfully.

c) Manifest excessiveness and count 19

The applicant argued that making count 19 consecutive produced an excessive overall term, especially given the differential gravity between the C1 and C2 offending. The Court rejected this, noting that if count 19 were updated by reference to the current guideline for behaviour analogous to inciting sexual activity with a child under 13, the starting point would be 8 years (range 5–10). Within that context, a 5-year term for count 19—made consecutive to a 4-year custodial block (with a 1-year extended licence) relating to other counts—did not render the sentence manifestly excessive.

d) Good character

The Court reiterated the Sentencing Council’s starred guidance: previous good character/exemplary conduct carries limited weight in serious sexual offending and will not normally justify a reduction. On the facts, the judge had given measured and proper regard to character; no error arose.

3) Impact and Practical Significance

This decision is an important and practical clarification on the lawful sequencing of special custodial sentences under s278 where there are multiple counts spanning determinate and s278 terms, and where blocks of offending are made consecutive:

  • Licence must follow custody: An s278 extended licence period cannot overlap with ongoing custody on other sentences. If an s278 sentence is imposed alongside determinate terms, it must be placed so that its licence comes at the end of the custodial sequence.
  • Use a lead determinate sentence: Identify a single determinate “lead” count to carry the total determinate custody for a block; run other determinate counts concurrently to avoid double counting, then place s278 sentences after the determinate portion.
  • Totality-sensitive adjustments: Where structural correction would otherwise increase the overall term, the Court may adjust (reduce) a determinate sentence and/or substitute a shorter custodial element on the relevant s278 count to preserve the intended totality.
  • Multiple s278 counts: Where more than one s278 sentence arises in the same block, running them concurrently with each other but consecutively to the determinate lead avoids unnecessary inflation of custody and keeps the licence extension aligned with statutory requirements. Where blocks are consecutive (e.g., C1 then C2), the resulting extended licence periods may aggregate across blocks, as occurred here (1 year for the C1 block + 1 year for the C2 block = 2 years).
  • Historic offences and modern guidelines: Current guidelines may inform the assessment of whether a sentence for historic offences is manifestly excessive, by reference to relative seriousness and ranges.
  • Mitigation by good character: The judgment reinforces the limited role of previous good character in serious sexual cases under the starred guidance.

Worked Structure: Before and After

Original (unlawful structure)

  • C1 block: A determinate sentence (e.g., 11 years on count 10) ran concurrently with an s278 sentence (count 6, 4 years’ custody + 1-year licence). This created an unlawful overlap because the s278 extended licence would have begun while the offender remained in custody on the determinate sentence.
  • C2 block: A determinate sentence (count 19, 5 years) was imposed after the s278 sentences (counts 16 and 18), so the extended licence from those s278 sentences would again have been interrupted by subsequent custody—also unlawful.

Restructured (lawful sequence) as ordered by the Court

  • C1 block:
    • Count 10 (rape) reduced to 10 years’ determinate custody (lead).
    • All other determinate C1 counts concurrent with count 10.
    • Count 6 re-sentenced to s278: 1 year’s custody + 1-year extended licence, consecutive to count 10.
    • Result (C1): 11 years’ custody + 1-year extended licence.
  • C2 block:
    • Count 19 set as the lead determinate sentence: 5 years’ custody.
    • Counts 15 and 17 concurrent with count 19.
    • Counts 16 and 18 (each s278: 4 years’ custody + 1-year licence) ordered consecutive to count 19; the s278 counts run concurrently with each other to avoid double-counting custody, delivering an additional 4 years’ custody and a single 1-year extended licence for this block.
    • Result (C2): 9 years’ custody + 1-year extended licence.

Final aggregate: 20 years’ custody (11 + 9) with a 2-year extended licence (1 + 1).

Complex Concepts Simplified

  • Special custodial sentence for offenders of particular concern (s278 SA 2020):
    • A sentence comprised of (i) an appropriate custodial term and (ii) a further extended licence period of at least 1 year.
    • The extended licence must commence only after the custodial term has ended; it cannot run at the same time as any ongoing custody on other counts.
  • Concurrent vs consecutive sentences:
    • Concurrent: sentences run at the same time; total custody equals the longest single term.
    • Consecutive: sentences are served one after another; total custody is the sum of the terms.
  • Lead determinate sentence: A technique where the court identifies one determinate count to carry the custody for a block of offending, with other determinate counts running concurrently. This avoids “double counting” while recognising the entirety of the criminality.
  • Totality principle: The overall sentence must be just and proportionate to the total offending behaviour—not simply the arithmetic sum of individual terms.
  • “Starred” mitigation on good character (Rape guideline): Prior good character or exemplary conduct carries limited weight in serious sexual offences and will not normally reduce what would otherwise be the appropriate sentence.
  • Historic offences and modern guidelines: When sentencing historic offences, courts may look to current guidelines for analogous conduct to gauge seriousness and test whether a sentence is manifestly excessive.

Why the Court’s Approach Matters

  • Legal certainty and lawful release: Ensuring that extended licence periods follow and do not overlap with custody safeguards the legality of release arrangements and supervision, avoiding administrative and legal complications for the prison and probation services.
  • Appellate-proof construction: By explicitly structuring determinate and s278 terms in the correct order and articulating concurrency/consecutivity, sentencing judges insulate their orders from technical appeals.
  • Proportionality preserved: The Court shows how to correct structural illegality without inflating the overall sentence, by using modest adjustments within the permissible ranges and the totality principle.

Conclusion

Taylor confirms a clear and pragmatic rule for s278 sentencing: the extended licence must sit at the end of the custodial sequence; it cannot overlap with periods of custody on other counts. Where multiple sentences (including s278 sentences) are imposed across several counts and complainants, the court should:

  • Identify a lead determinate term for each block and run other determinate counts concurrently;
  • Place s278 sentences consecutively to the determinate custody so the extended licence follows in time;
  • Where necessary, make carefully calibrated adjustments (e.g., to the lead determinate or the custodial element of the s278 count) to preserve totality and proportionality.

The Court also reiterates two important sentencing messages: previous good character generally attracts limited weight in serious sexual cases; and modern guidelines can help benchmark sentences for historic offending when assessing excessiveness. The decision therefore provides valuable, concrete guidance to first-instance judges and practitioners on the correct construction of complex sentencing packages involving s278.

Case Details

Year: 2025
Court: England and Wales Court of Appeal (Criminal Division)

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