THE QUEEN v Thompson

Factual and Procedural Background

This opinion consolidates four unrelated appeals that raise issues concerning the application of section 11(3) of the Criminal Appeal Act 1968 ("the 1968 Act") in appeals against sentence. The key question is the extent to which this court can substitute a standard determinate sentence with alternative sentencing options such as a special custodial sentence for offenders of particular concern under section 236A of the Criminal Justice Act 2003 ("the 2003 Act"), extended sentences under sections 226A or B of the 2003 Act, or hospital orders with restriction or hybrid orders under the Mental Health Act 1983.

Additionally, the court considers the interpretation of section 226A(8) of the 2003 Act regarding the maximum extension periods for extended sentences in cases involving consecutive extended sentences.

The opinion includes detailed consideration of individual appeals including those of the Appellant Thompson, who was sentenced for multiple sexual offences; the Appellant Cummings, convicted of grievous bodily harm with intent; the Appellant Fitzgerald, convicted of child rape; and the Appellant Ford, sentenced for making threats to kill while in custody. Each case illustrates different applications of sentencing provisions and the challenges posed by statutory complexities and procedural errors.

Legal Issues Presented

1. To what extent can the Court of Appeal substitute a standard determinate sentence with a special custodial sentence under section 236A of the 2003 Act, an extended sentence under sections 226A or B of the 2003 Act, or a hospital order under the Mental Health Act 1983 without breaching section 11(3) of the 1968 Act?
2. How should section 226A(8) of the 2003 Act be interpreted regarding the maximum extension periods for extended sentences, specifically whether consecutive extended sentences can result in cumulative extension periods exceeding statutory maxima?
3. What is the appropriate approach to correcting unlawful sentences passed under the 2003 Act, particularly where mandatory sentencing provisions have not been complied with?
4. How should the court balance the principle that an appellant should not be more severely dealt with on appeal with the need to protect the public and comply with mandatory sentencing frameworks?

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 (Stott) v Secretary of State for Justice [2017] EWHC 214 (Admin)	Principle that early release, licence and related provisions should generally be excluded from sentencing considerations.	Supported the general principle that sentencing courts determine the appropriate custodial term without regard to release mechanisms.
R v Round [2009] 2 Cr App R (S) 292	General principle excluding early release and licence considerations from sentencing.	Reaffirmed the principle that sentencing courts focus on the custodial term without factoring in release conditions.
R v Burinskas [2014] 1 WLR 4209	Reaffirmation of sentencing principles and considerations of licence and release.	Referenced in relation to the limits on increasing sentences on appeal under section 11(3).
R v Szczerba [2002] 2 Cr App R (S) 387	Variation of minimum term in indeterminate sentences for good reason.	Illustrated exceptions to the general principle of ignoring release provisions during sentencing.
R v Hayward [2000] 2 Cr App R (S) 418	Example of varying minimum terms in indeterminate sentences.	Provided precedent for exceptions to ignoring release provisions.
R v Cozens [1996] 2 Cr App R (S) 321	Adjustment of sentences at the margin of release provisions to avoid disproportionate outcomes.	Permitted adjustment of sentences to avoid harsh consequences of release provisions.
R v Harrison [1998] 2 Cr App R (S) 174	Similar to R v Cozens regarding sentence adjustment at margins of release provisions.	Supported principled adjustment of sentences on appeal.
Bennett (1968) 52 Cr App R 514	Hospital order with indefinite restriction not more severe than imprisonment.	Used to illustrate that remedial or ameliorative orders are not necessarily more severe under section 11(3).
Searles [2012] EWCA Crim 2685	Followed Bennett in relation to hospital orders and their severity compared to imprisonment.	Confirmed remedial nature of hospital orders exempts them from being considered more severe.
R v Reynolds [2007] EWCA Crim 538	Section 11(3) applies equally to mandatory sentences; the court must apply the cap on increasing sentence severity on appeal.	Clarified that mandatory sentences are subject to the same limitations on increasing severity on appeal.
Fruen [2016] EWCA Crim 561	Limits on substituting determinate sentences with special custodial sentences under s. 236A without breaching s. 11(3).	Guided approach to restructuring sentences to avoid breaching section 11(3) when substituting sentences.
PM [2016] EWCA 1895	Application of Fruen principles in substituting sentences under s. 236A.	Confirmed careful balancing of release eligibility and licence periods to comply with s. 11(3).
Julian S [2016] EWCA Crim 1607	Substitution of determinate sentence with s. 236A sentence considering s. 11(3).	Confirmed that taking the case as a whole, the substituted sentence was not more severe.
Bradbury [2015] EWCA Crim 1176	Restructuring sentence to extended sentence with licence period.	Decision criticized for potentially breaching s. 11(3) due to increased risk of longer custody.
Pinnell [2010] EWCA Crim 2848	Permitted consecutive extended sentences with consecutive extension periods.	Confirmed that extension periods in consecutive extended sentences run consecutively.
B [2015] 2 Cr App R (S) 78	Variation of sentence to consecutive extended sentences with total extended licence exceeding statutory maxima for single offences.	Discussed statutory limits on extension periods and their application to consecutive sentences.
Watkins [2014] EWCA Crim 1677	Requirement that extended sentences be expressed as custodial term plus extended licence.	Applied to ensure proper structure of extended sentences.
Cain [1985] 1 AC 46	Original determinate sentences, though unlawful, remain valid and effective despite quashing of substituted sentences.	Applied to confirm validity of original sentences after quashing invalid variations.
R v Thompson (1978) 66 Cr. App. R. 130	Section 11(3) prohibits imposing a more severe sentence on appeal.	Used to illustrate the statutory cap on increasing sentence severity on appeal.
R v Aldridge [2012] EWCA Crim 1456	Sexual offences prevention order imposed for less than minimum term had to be quashed because increasing it would breach s. 11(3).	Demonstrated limits of sentence variation under s. 11(3).
Howells [1999] 1 Cr App R (S) 335	Sentencing court's subjective judgment of justice on the peculiar facts overrides general public opinion.	Emphasized the sentencing court's discretion within legal limits.

Court's Reasoning and Analysis

The court began by clarifying the statutory framework governing different custodial sentences and their respective release provisions. It emphasized the principle that sentencing courts determine the custodial term based on the seriousness of the offence, excluding considerations of early release, licence, or parole mechanisms, except in limited circumstances such as setting minimum terms for indeterminate sentences.

The court explained that section 11(3) of the 1968 Act caps the court's power on appeal to ensure that the appellant is not more severely dealt with than by the original sentencing court. This principle applies equally to mandatory sentences, including extended sentences and special custodial sentences under the 2003 Act.

In applying these principles to the appeals, the court analyzed the practical effect of substituting determinate sentences with extended or special custodial sentences, particularly considering differences in release eligibility and licence periods. The court recognized that while the custodial term may be shorter under a substituted sentence, the extended licence or parole conditions may expose the offender to longer periods of supervision or risk of recall, which could amount to more severe treatment contrary to section 11(3).

Regarding the interpretation of section 226A(8) of the 2003 Act, the court concluded that consecutive extended sentences with consecutive extension periods are permissible in exceptional cases, provided the total licence period is not oppressive or equivalent to life licence. This interpretation aligns with the statutory intent and previous authorities, including Pinnell.

The court reviewed each appellant's case in light of these legal principles. For Appellant Thompson, the court found that the original sentences under section 236A were unlawful as the offences did not fall within the relevant schedule, requiring substitution with extended sentences under section 226A. The substituted sentence was structured to comply with section 11(3) by balancing custodial and licence periods.

In Appellant Cummings' case, the court held that the 12-year detention sentence was justified and that the failure to impose an extended sentence was an error that could not be corrected on appeal without breaching section 11(3). Therefore, the appeal was dismissed.

For Appellant Fitzgerald, the court quashed the invalid variation of sentence made outside statutory time limits and upheld the original determinate sentence, rejecting submissions that it was manifestly excessive.

In Appellant Ford's case, the court found the original determinate sentence of 45 years to be disproportionate. Given the offender's dangerousness and the statutory limits on licence periods for extended sentences, the court identified exceptional circumstances justifying consecutive extended sentences. The substituted sentence provided for a total extended licence period exceeding the statutory maximum for a single offence but was not considered oppressive or contrary to section 11(3).

The court concluded by emphasizing the complexity of sentencing legislation and the importance of correct application by judges and advocates to avoid errors. It highlighted the procedural safeguards, including the 56-day time limit for correcting sentences under section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 and the requirements of the Criminal Procedure Rules.

Holding and Implications

The court allowed the appeal in relation to Appellant Thompson, substituting unlawful sentences under section 236A with lawful extended sentences under section 226A structured to comply with section 11(3) of the 1968 Act.

The appeal of Appellant Cummings was dismissed, affirming the 12-year detention sentence despite the error in not imposing an extended sentence.

The appeal of Appellant Fitzgerald was dismissed, quashing an unlawful sentence variation and upholding the original determinate sentence.

The appeal of Appellant Ford was allowed to the extent of substituting the disproportionate determinate sentence with consecutive extended sentences under section 226, resulting in a combined custodial term and extended licence period carefully balanced to comply with statutory provisions and section 11(3).

The direct effect of these decisions is to clarify the limits of the Court of Appeal's powers under section 11(3) of the 1968 Act when substituting sentences, particularly in relation to extended and special custodial sentences. The court reaffirmed that the practical effect of release eligibility and licence conditions must be considered to avoid imposing more severe sentences on appeal. The opinion does not establish new precedent but reinforces existing principles and statutory interpretations, providing guidance for future sentencing and appeals involving complex statutory frameworks.