Factual and Procedural Background
This opinion addresses the interpretation and application of section 236A of the Criminal Justice Act 2003 (CJA 2003), introduced by the Criminal Justice and Courts Act 2015. Section 236A establishes a special custodial sentence for certain offenders of particular concern, applicable to offences listed in Schedule 18A, including certain terrorism offences, sexual offences under sections 5 or 6 of the Sexual Offences Act 2003 (SOA 2003), inchoate offences, and abolished offences (repealed offences that would have constituted listed offences if committed on the conviction date).
The section applies to offenders aged 18 or over at the time of the offence who are not sentenced to life imprisonment or an extended sentence under section 226A. It mandates that when a custodial sentence is imposed for such offences, the term must include the appropriate custodial term plus a further one-year period of licence. The opinion discusses how this new sentencing regime operates, including release provisions under section 244A, and examines the interaction with historic offences and sentencing guidelines.
Two illustrative cases are considered: the case of the first appellant ("Plaintiff Fruen") involving two counts of indecent assault under the Sexual Offences Act 1956, and the second appellant ("Appellant DS") convicted of multiple sexual offences involving two child victims. Both cases highlight issues in the application and recording of section 236A sentences.
Legal Issues Presented
- What is the proper interpretation and application of section 236A CJA 2003 regarding the imposition of special custodial sentences for schedule 18A offences?
- How should the appropriate custodial term and the additional one-year licence period be structured and expressed in sentencing, particularly in cases involving multiple offences and consecutive or concurrent sentences?
- What is the effect of failing to apply section 236A correctly on sentence validity and appellate intervention?
- How do historic or abolished offences interact with section 236A sentencing requirements?
- What guidance should be given to courts and practitioners to ensure compliance with section 236A?
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v H & ors [2012] 2 Cr App R (S) 21 |
Guidance on sentencing historic sexual offences using equivalent modern offences and applicable sentencing guidelines. |
Used to support the application of current sentencing guidelines to historic offences limited by maximum sentences available at the time of commission. |
| R v Pinnell & Joyce [2012] 2 Cr App R (S) 30 |
Permissibility of consecutive extended sentences under section 226A. |
Analogous authority supporting the permissibility of consecutive section 236A sentences and the indivisibility of custodial and licence periods. |
| R v Francis & Lawrence [2014] EWCA Crim 631 |
Further authority on consecutive extended sentences and sentencing principles. |
Reinforces the approach that consecutive extended sentences, and by analogy consecutive section 236A sentences, are permissible. |
| R v Harries [2008] 1 Cr App R (S) 47 |
Sentencing where indictments do not specify penetration but evidence supports such a finding. |
Supports the principle that absence of specific indictment particulars is not fatal if the court is satisfied on evidence of penetration for section 236A applicability. |
| R v Reynolds [2007] 2 Cr App R (S) 87 |
Appellate restraint in interfering with Crown Court sentences absent clear error. |
Guides the court’s decision not to interfere with a sentence where the custodial term imposed was appropriate despite failure to apply section 236A. |
| R v Bright [2008] 2 Cr App R (S) 102 |
Error in sentencing related to release provisions does not invalidate the sentence. |
Supports the view that a judge’s incorrect statement about release timing does not invalidate the sentence imposed. |
Court's Reasoning and Analysis
The court begins by outlining the statutory framework of section 236A CJA 2003, emphasizing its mandatory nature requiring that custodial sentences for schedule 18A offences include a further one-year licence period in addition to the appropriate custodial term. The court explains that this licence period is distinct and additional to any licence period that would otherwise apply under ordinary determinate sentences, and that release is subject to Parole Board approval rather than automatic halfway release.
The court clarifies that historic or abolished offences equivalent to modern offences listed in Schedule 18A fall within the ambit of section 236A, provided the offender was aged 18 or over when the offence was committed. The sentencing guideline approach for historic offences, derived from R v H & ors, is to apply the modern equivalent offence guideline capped at the maximum sentence available at the time of commission.
The court addresses practical sentencing issues, including the permissibility of non-custodial sentences such as community orders in exceptional cases and the inadvisability of suspending section 236A sentences due to practical and legal incongruities.
Regarding multiple offences, the court distinguishes concurrent from consecutive sentences. Concurrent section 236A sentences each carry a one-year licence period running concurrently, whereas consecutive section 236A sentences require consecutive licence periods, resulting in cumulative licence extensions. This conclusion is supported by the indivisibility principle established in extended sentence jurisprudence and the mandatory language of section 236A(2).
The court provides a checklist to assist practitioners and judges in identifying and correctly applying section 236A, including verifying the offence’s inclusion in Schedule 18A, offender’s age, and sentence structure.
In analyzing the illustrative cases, the court finds that in the first case (Plaintiff Fruen), the judge erred by imposing an ordinary determinate sentence without the mandatory licence period, but declines to intervene because increasing the sentence would violate statutory limits, and reducing the custodial term to accommodate the licence period was not appropriate. This results in the offender receiving a lighter sentence than Parliament intended.
In the second case (Appellant DS), the court notes that the judge correctly imposed a section 236A sentence overall but failed to specify the licence period separately for each qualifying count, and incorrectly stated the release provisions. The court directs correction of the court record to reflect that certain historic offences also attract section 236A sentences. Despite these irregularities, the court refuses the appeal, finding the overall sentence appropriate and the errors not grounds for interference.
Holding and Implications
The court refuses both appeals against sentence.
The court holds that section 236A sentences must include the appropriate custodial term plus a further one-year licence period, and that in cases of multiple consecutive section 236A sentences, the licence periods must run consecutively, increasing the overall licence duration. Failure to apply section 236A correctly results in a sentence less severe than Parliament intended, but appellate courts should not interfere if the custodial term imposed is appropriate and statutory limits are respected.
The court emphasizes the importance of precise sentencing practice and provides a practical checklist to assist judges and practitioners in compliance with section 236A. While the decision does not set new precedent beyond clarifying section 236A’s application, it underscores the mandatory nature of the additional licence period and the indivisibility of the custodial and licence elements of the sentence.