Anonymized Summary of Court Opinion

Factual and Procedural Background

This is a renewed application by the Appellant for a lengthy extension of time to apply for leave to appeal against sentence after a single judge refused leave. On 13 October 2021 the Appellant (then aged 34) was sentenced in the Crown Court sitting at The City by Judge Leigh. The Appellant pleaded guilty to two offences of aggravated burglary (contrary to section 10 of the Theft Act 1968), two offences of assault of an emergency worker (contrary to section 39 of the Criminal Justice Act 1988 and section 1 of the Assaults on Emergency Workers (Offences) Act 2018), and one offence of criminal damage.

The sentencing order was an extended determinate sentence of 13 years 2 months under section 279 of the Sentencing Act 2020, comprising a custodial term of 8 years 2 months and an extended licence period of 5 years. Two-month concurrent terms were imposed for the assaults on emergency workers. The Appellant did not lodge an appeal within the ordinary time limit; on 3 September 2024 (approximately 2 years 10 months after sentence) the Appellant, acting in person, lodged grounds of appeal together with an application for an extension of time (requiring 1,028 days). The Appellant also sought leave to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968. The court considered the extension of time and the leave to appeal together.

Factual background to the offending (as found and summarised in the sentencing remarks): both aggravated burglaries occurred on the same evening in August 2021 at flats in the same building. In the first incident, the Appellant and a Co-defendant visited a flat after being invited in; the Appellant held a large knife in its sheath to a victim's neck, made threats, assaulted a victim and demanded money. Items (a house key, cigarettes, £40, and a bank card) were taken. In the second incident the Appellant and the Co-defendant forced entry into another flat, were carrying knives/blades in sheaths, assaulted the occupants, and stole property including phones, bank cards, cigarettes and keys.

Two separate offences of assault on an emergency worker occurred earlier in 2021 on separate dates: one incident in March 2021 (during an arrest at a premises where the Appellant was present; the Appellant attempted to kick an officer and later urinated in a cell, constituting criminal damage) and another in June 2021 when the Appellant punched an officer while being arrested at home. The Appellant had a significant previous record (42 convictions for 102 offences, including multiple offences against the person and many theft and fraud offences).

At sentence there was no pre-sentence report because Judge Leigh considered one unnecessary. Defence counsel in the sentencing court advised that there were no grounds for appeal against sentence. The Appellant later sought to challenge the finding of "dangerousness" and the imposition of an extended sentence, and sought to rely on psychiatric evidence obtained after sentence (a medical assessment in January 2024 indicating likely adult ADHD and proposed treatment). The Appellant explained the delay in lodging the appeal by reference to difficulties obtaining medical records and legal advice while in custody.

Legal Issues Presented

1. Whether the Appellant should be granted an extension of time (a 1,028-day extension) to apply for leave to appeal against sentence.
2. Whether leave to appeal should be granted against the finding of "dangerousness" and the imposition of an extended determinate sentence.
3. Whether the court should admit fresh medical/psychiatric evidence (the notes of Attorney Martyn and proposed witness evidence) under section 23 of the Criminal Appeal Act 1968.
4. Whether a pre-sentence report should have been obtained by the sentencing judge before making a finding of dangerousness, and if so whether the appellate court should itself obtain such a report.

Arguments of the Parties

Appellant's Arguments

• The Appellant challenged only the finding of dangerousness and the imposition of an extended sentence.
• The Appellant complained that a pre-sentence report should have been obtained before the sentencing judge formed the dangerousness view, and that the sentencing hearing was rushed (completed within 36 days).
• The Appellant sought to rely on psychiatric evidence obtained after sentence: a January 2024 assessment by Attorney Martyn diagnosing combined adult ADHD, together with recent medication and treatment, which the Appellant says would explain impulsive behaviour and might have affected assessments of culpability and dangerousness.
• The Appellant explained the delay in seeking leave by reference to difficulties obtaining prison medical records (26 months) and lack of legal advice in custody.

Attorney for the Appellant (counsel who advised at sentencing)

• At the time of sentence, counsel advised that there were no grounds for appeal against sentence.
• In relation to the dangerousness finding, counsel advised that the sentencing judge was entitled to draw that conclusion from the evidence and that there was nothing in the facts or the Appellant's history to suggest the judge erred.
• Following waiver of privilege, counsel's advice indicated that the Appellant did not intend to pursue an appeal at that stage.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Allen [2019] EWCA Crim 1772	Guidance that the decision to make a dangerousness finding without a pre-sentence report requires careful justification; usually a report will be required though in some cases the judge who tried the case may be able to rely on impressions from trial and the facts.	The court relied on Allen to explain the statutory position and to note that while a report is usually desirable, in Allen the judge's familiarity with the defendant justified the procedure. The present court distinguished Allen (different facts and record) but concluded, on the facts here, that Judge Leigh was justified in not obtaining a pre-sentence report.

Court's Reasoning and Analysis

The court first addressed whether the sentencing judge was required to obtain a pre-sentence report before making a finding of dangerousness. It identified the statutory framework: section 280(2) of the Sentencing Act 2020 (the statutory test of dangerousness requires the court to obtain and consider a pre-sentence report before forming the opinion unless the court considers it unnecessary: see section 30(2) of the Act), and section 30(4) which provides that a custodial sentence is not invalidated by the absence of such a report. The court observed that counsel at sentencing had not raised any complaint about the absence of a pre-sentence report and that the transcript and sentencing remarks indicated the sentencing judge considered a report unnecessary because she had sufficient material to assess dangerousness.

The court considered whether it should itself order a pre-sentence report under sections 23(1) and (2) of the Sentencing Act 2020 (which require an appeal court to obtain a pre-sentence report if none was obtained below unless the appeal court considers the lower court was justified in not obtaining one or that it is unnecessary in the circumstances). The court concluded it was unnecessary to obtain a report to decide the present applications.

The court analysed the Appellant's attempt to adduce fresh medical evidence under section 23 of the Criminal Appeal Act 1968. It set out the statutory and established criteria for receiving fresh evidence on appeal: whether the evidence appears capable of belief; whether it may afford any ground for allowing the appeal; whether it would have been admissible below; and whether there is reasonable explanation for its not having been adduced at sentence.

On the material before the court, the only material from the psychiatrist was contemporaneous notes (entries dated 29 January 2024). There was no formal report or an opinion addressing whether the post-sentence ADHD diagnosis would have affected assessments of culpability at the time of the offences or whether it would have affected the assessment of the risk of further specified offences (dangerousness). The court noted that the psychiatrist's notes recorded possible combined adult ADHD, some dissocial elements, and significant drug and alcohol misuse. The appellant's assertion that the psychiatrist indicated treatment at the time would have meant the offences would not have been committed was unsupported in the notes.

The court applied Allen to emphasise that judges usually should obtain a pre-sentence report when considering dangerousness, but that the sentencing judge may be justified in not doing so where she has sufficient information from the trial and other material to form a view. The court distinguished Allen on its facts and concluded that in the present case Judge Leigh was justified in not obtaining a pre-sentence report, given the admitted facts and the Appellant's extensive previous record.

Turning to the fresh evidence, the court held that without a clear expert opinion tying the ADHD diagnosis to reduced culpability at the material time or to a lower risk of future serious harm, the notes could not be said to afford any ground for allowing the appeal. The court also noted the absence of a reasoned, expert assessment addressing the specific sentencing issues and the statutory dangerousness test.

The court agreed with the single judge's careful analysis refusing leave to appeal and refusing the extension of time, concluding there was no arguable merit in the proposed appeal.

Holding and Implications

Decision:

LEAVE TO APPEAL IS REFUSED.

THE EXTENSION OF TIME TO APPLY FOR LEAVE IS REFUSED.

Implications:

• The Appellant's extended determinate sentence (custody of 8 years 2 months with an extended licence period of 5 years; total extended determinate sentence of 13 years 2 months) stands and is not disturbed by this court.
• The court determined that the sentencing judge was justified in not obtaining a pre-sentence report in the circumstances of this case; the appellate court did not consider it necessary to obtain such a report to determine the present applications.
• The post-sentence psychiatric notes and the Appellant's newly diagnosed ADHD and treatment do not, on the material before the court, provide an arguable basis to overturn the dangerousness finding or the five-year extension period. The court emphasised the absence of an expert opinion directly addressing culpability at the time of offending or the statutory dangerousness assessment.
• The court observed that the Appellant's engagement with treatment and medication may be relevant to future Parole Board consideration, but it does not afford an arguable ground of appeal against sentence in these proceedings. The decision does not establish any new binding legal precedent beyond the application of existing statutory provisions and the authority cited (R v Allen) to the facts of this case.

Note on anonymization: all personal names, precise addresses and other potential identifiers from the original opinion have been replaced with generic placeholders to comply with the instruction to anonymize personally identifiable information. This summary otherwise reflects only the information contained in the provided opinion and does not add or infer facts beyond that text.