Factual and Procedural Background
There are 13 applications before the Court seeking extensions of time to apply for leave to appeal against sentences of Imprisonment for Public Protection (IPP) imposed between 2005 and 2008 under the Criminal Justice Act 2003 (CJA 2003). The IPP sentence was introduced on 4 April 2005 for offenders deemed dangerous and convicted of specified offences, requiring mandatory imposition of IPP or life imprisonment with an indeterminate term but a set minimum term. The statutory assumption of dangerousness applied to offenders over 18 with previous specified offences, removing judicial discretion to some extent. In 2008, amendments modified the IPP regime, removing the assumption of dangerousness and mandatory imposition, but these did not affect those sentenced before July 2008. The IPP sentence was abolished for offences committed after 3 December 2012 by the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO 2012), though existing sentences remained. Over 4,000 prisoners remain detained under IPP sentences as of March 2016.
The applicants did not appeal within the statutory 28-day period after sentencing, apparently due to the perceived futility of such appeals at the time. They now seek extensions of time, ranging from 5 to 9 years, to challenge the correctness of their sentences, contending that the sentences may now be unjust given the time spent in custody or on licence. The cases were heard together to consider the general approach to granting extensions of time in IPP sentence appeals.
Legal Issues Presented
- Whether the Court of Appeal has jurisdiction under section 11 of the Criminal Appeal Act 1968 to reconsider and vary IPP sentences many years after they were imposed, particularly where the sentences have resulted in extended detention beyond the minimum term.
- Whether the statutory assumption of dangerousness under the CJA 2003 was correctly applied in each case and whether the sentences were imposed in accordance with statutory criteria and relevant case law, including R v Lang.
- Whether delayed review of IPP sentences can serve as a mechanism to prevent breaches of Articles 3 and 5 of the European Convention on Human Rights, specifically regarding arbitrary detention or inhuman treatment due to excessive detention periods.
- The principles and criteria applicable to applications for extensions of time to appeal against sentences under the Criminal Appeal Act 1968 and the interests of justice in granting such extensions.
- The role of Parliament and the Executive in addressing the consequences of the IPP sentencing regime, including potential reform or modification of release thresholds.
Arguments of the Parties
Appellants' Arguments
- The imposition of IPP sentences was not justified by the statutory criteria as interpreted by case law, especially R v Lang.
- The Court of Appeal has power under section 11 of the Criminal Appeal Act 1968 to pass a different sentence in light of developments since the original sentencing.
- The Court should reconsider sentencing assessments, particularly where proper reasons were not given or where young offenders were sentenced.
- The length of detention served is so excessive and disproportionate relative to the original offence that it may constitute inhuman treatment or arbitrary detention under Articles 3 and 5 of the European Convention on Human Rights.
- Delayed review of sentences may be appropriate to avoid breaches of Convention rights when detention has become preventive rather than punitive.
Respondent's Arguments
- The Court of Appeal is a court of review and is not constituted to resentence offenders on a new basis years after the original sentence.
- The statutory assumption of dangerousness and sentencing criteria were properly applied in all cases, and the sentences were lawful and justified.
- Any injustice arising from extended detention should be addressed by the Parole Board, the Executive, or Parliament, not by the Court of Appeal through late appeals.
- Human rights challenges to IPP sentences must be addressed through judicial review of the Secretary of State or Parole Board decisions, not by reopening sentences.
- The Court should apply established principles regarding extensions of time, requiring cogent reasons and explanations for delay, and should not depart from these principles absent exceptional circumstances.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Lang [2005] EWCA Crim 2864 |
Guidance on the application of statutory criteria for IPP sentences and the assumption of dangerousness. |
Used as a benchmark to assess whether sentencing judges properly applied the law and statutory assumptions. |
| R v A&B [1999] 1 Cr App R (S) 52 |
Established that the Court of Appeal is a court of review and not a sentencing court at first instance. |
Reaffirmed the Court’s role in reviewing sentences rather than conducting fresh sentencing exercises. |
| R v Johnson [2006] EWCA Crim 2486 |
Confirmed that the Court should not interfere with sentencing decisions within the judge's discretion if lawful. |
Supported the conclusion that IPP sentences imposed within statutory discretion should not be disturbed absent error. |
| R v C [2009] 1 WLR 2158 |
Emphasized the draconian nature of IPP sentences and the need to consider alternatives. |
Applied to assess whether sentencing judges considered alternatives appropriately in post-2008 cases. |
| Pham v Secretary of State [2015] 1 WLR 1591 |
Addressed the scrutiny required when human rights are engaged in sentencing. |
Rejected the submission that the Court should depart from established principles to give anxious scrutiny in IPP cases. |
| James v UK (2013) 56 EHHR 12 |
Held that failure to provide rehabilitation courses may render continued detention arbitrary. |
Clarified that breaches of Convention rights relate to the operation of the sentence, not the sentence itself. |
| R (Kaiyam) and R (Haney) v Secretary of State for Justice [2015] AC 1344 |
Confirmed that failure to provide rehabilitation remedy is damages, not unlawful detention. |
Supported the position that the Court cannot revisit valid sentences on human rights grounds absent systemic failure. |
| R v Docherty [2014] EWCA Crim 1197 |
Considered arguments on abolition timing of IPP and lex mitior principle. |
Permission to appeal granted but arguments rejected at this stage; Court held that lawful sentences before abolition remain valid. |
| R v Gintas Burinskas [2014] EWCA Crim 334 |
Considered sentencing under amended provisions post-LASPO 2012, including life sentences replacing IPP. |
Confirmed that life sentences may replace IPP for offences committed after abolition date. |
| R v Wilson [2016] EWCA Crim 65 |
Set out principles for granting extensions of time to appeal, including requirement for explanation of delay. |
Applied to assess applications for extensions of time in the present cases. |
| Hamilton v R [2012] UKPC 21 |
Consideration of material circumstances and interests of justice in extension of time applications. |
Referenced in the Court’s assessment of whether to grant extensions. |
| R v Thorsby [2015] 1 Cr App R (S) 63 |
Confirmed strict observance of time limits in appeals unless exceptional reasons exist. |
Emphasized importance of timely appeals and reinforced Court’s approach to extensions in the IPP context. |
| R v McCook [2014] EWCA Crim 734 |
Duty of new representatives to consult former lawyers in appeal applications. |
Applied to the duty of solicitors representing appellants in these extension applications. |
| R v Burley [2010] EWCA Crim 3289 (unreported) |
Emphasized the importance of strict observance of time limits in interests of justice. |
Supported the Court’s approach to time extensions in sentence appeals. |
| R (GJD) v Governor of HMP Grendon [2015] EWHC 3501 (Admin) |
Example of error of law in imposing IPP for offences committed before provisions came into force. |
Distinguished from the present cases, which complied with statutory requirements. |
| Jogee [2016] UKSC 8 |
Illustrated correction of a common law error by the Supreme Court. |
Used to contrast with IPP sentencing, which was a matter of statutory enactment, not common law error. |
| R v Ryan [2014] EWCA Crim 2147 |
Fact-specific interference with sentence where statutory assumption was misapplied. |
Distinguished from Wakeling’s case where the assumption was properly applied. |
| Cleobury [2012] EWCA 17 |
Principles on admissibility and weight of expert evidence in sentencing context. |
Applied in assessing psychiatric evidence in Warwick’s case. |
Court's Reasoning and Analysis
The Court undertook a detailed review of the statutory framework for IPP sentences as established by the CJA 2003, including the mandatory nature of the sentence where the offender was found dangerous under the statutory assumption. It emphasized that the Court of Appeal’s role is one of review rather than fresh sentencing, consistent with established authorities such as R v A&B. The Court rejected the appellants’ submissions that it could resentence offenders years later based on developments in penal practice or human rights considerations, noting that the proper forum for addressing systemic issues is the Parole Board, the Executive, or Parliament.
The Court carefully considered the case law, particularly R v Lang, and found that in each application the sentencing judge had applied the law correctly and imposed sentences in accordance with statutory criteria. It noted that in many cases judges had no discretion to impose anything other than IPP sentences due to the statutory assumption of dangerousness.
The Court also addressed human rights arguments, concluding that the original IPP sentence was not itself a violation of Articles 3 or 5 of the European Convention on Human Rights. Any breach arising from prolonged detention would be due to failures in the operation of the sentence by the Secretary of State or Parole Board and should be challenged by judicial review rather than by reopening sentences.
Regarding the applications for extension of time, the Court applied the principles from R v Wilson and related authorities, requiring cogent reasons for delay and consideration of the interests of justice. The Court found no exceptional reasons to depart from the strict time limits and emphasized the importance of finality in sentencing for the purposes of offender rehabilitation and legal certainty.
In respect of each individual application, the Court examined the facts, criminal histories, and sentencing judges’ reasoning, concluding that the sentences were lawful, justified, and consistent with the statutory framework and relevant guidance. Consequently, the Court refused all applications for extension of time to appeal against sentence.
The Court acknowledged the difficulties posed by the IPP regime, including the large number of prisoners detained beyond minimum terms and the challenges of release, but held that these are matters for Parliament and the Executive to address, not for the Court of Appeal to remedy by reopening sentences.
Holding and Implications
The Court REFUSED all 13 applications for extensions of time to apply for leave to appeal against IPP sentences imposed between 2005 and 2008. It held that the sentencing judges correctly applied the law and that the sentences were lawful and justified under the statutory framework in force at the time of sentencing.
The Court emphasized that its role is limited to reviewing sentences within the statutory time limits and that it will not revisit IPP sentences based on subsequent developments or prolonged detention absent clear new points of law or error. It made clear that any remedy for the consequences of the IPP regime, including extended detention beyond minimum terms, lies with the Parole Board, the Executive, or Parliament.
No new precedent was established by this decision; it reaffirmed existing principles regarding the Court of Appeal’s jurisdiction, the application of statutory assumptions, and the strict observance of time limits for appeals. The decision underscores the constitutional principle that properly imposed sentences must be respected and that systemic issues arising from sentencing legislation must be addressed by the legislature and executive branches of government.