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Ahmed, R. v
Factual and Procedural Background
The Appellant was sentenced on 11 September 2008 at The Crown Court to an imprisonment for public protection (IPP) with a minimum term of 2½ years following a guilty plea to robbery contrary to s.8 Theft Act 1968. At the date of sentence the Appellant was aged 20. The offence involved entry to a service station in The City with a co-defendant, disguise, the use of a large knife, theft of cash and cigarettes, and intimidation of the manager. The Appellant had an extensive prior record and medical and psychological reports indicated risk factors including antisocial traits and reported auditory hallucinations. The Appellant applied (by way of an application referred by the Registrar to the full court) for an extension of time of 5,755 days to apply for leave to appeal his sentence, contending the IPP was manifestly excessive or wrong in principle (erroneous finding of dangerousness or, alternatively, that an extended determinate sentence would have sufficed). The court considered statutory amendments to IPP/DPP availability (Criminal Justice and Immigration Act 2008) and subsequent authorities bearing on whether IPP was the appropriate sentence.
Legal Issues Presented
- Whether the sentencing Judge erred in finding that the Appellant met the statutory test of dangerousness.
- Whether, having found dangerousness, the Judge was required to consider and (if appropriate) impose an extended determinate sentence (DPP) rather than an IPP, given the amendments in force by the date of final sentence.
- Whether the Court should grant a very long extension of time (5,755 days) to permit the Appellant to apply for leave to appeal against sentence.
Arguments of the Parties
Appellant's Arguments (presented by Attorney Douglas)
- The Judge was wrong to find dangerousness: prior convictions did not involve serious violence and the pre-sentence/psychological reports did not establish the s.229 risk of serious harm; alleged torture of another inmate was unproven and not admitted.
- The Judge failed to take proper account of the Appellant's youth in relation to dangerousness.
- Alternatively, if dangerousness was established, the Judge did not consider the option of an extended determinate sentence (DPP), and an extended determinate sentence (5 years custody + 5 years extended licence) would have provided adequate public protection.
- Reasons for delay in seeking appeal included earlier advice (no grounds), subsequent custody, and practical difficulties in taking instructions.
Crown's Arguments (presented by Attorney Davis)
- The finding of dangerousness was open to the Judge: the offence was planned, involved a large knife held to the victim's throat, and the reports (psychologist and psychiatrist) and pre-sentence report supported a significant risk of serious harm.
- The Judge was entitled to rely on unproven but credible information in reports (citing R v Considine) and on the Appellant's lack of cooperation with assessment.
- There was no reason to infer that the amended sentencing options had been overlooked; the differences in co-defendant sentencing supported awareness of the new regime.
- Given the Appellant's pattern of offending, the psychiatric material and poor prospects of engagement with treatment, an IPP/DPP was within the Judge's discretion.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Attorney-General's Reference (No 55 of 2008) [2008] EWCA Crim 2790; [2008] 2 Cr. App. R. (S.) 22 | Whether IPP should be imposed only as last resort; courts must consider alternative and cumulative measures (including extended determinate sentences) to achieve public protection. | The court relied on the authority to state that IPP is the penultimate draconian sentence and that an extended sentence should be chosen where it can achieve appropriate protection; this influenced the conclusion that the Judge should have considered an extended determinate sentence. |
| R v Wilkinson [2009] EWCA Crim 1925; [2010] 1 Cr App R (S) 100 | Comparison of an IPP with discretionary life sentences and confirmation of shared features concerning public protection and indeterminacy. | The court noted Wilkinson's observations on commonalities between IPP and life sentences when assessing the weight of imposing an indeterminate sentence on a young offender. |
| R v Lang [2005] EWCA Crim 2864; [2005] 2 Cr. App. R. (S.) 3 | Observation that for many practical purposes IPP/DPP and life sentences are very similar; caution in treating young offenders' conduct as indicative of future risk. | The court relied on Lang to underline the necessity of considering the severe nature of IPP and to stress caution regarding the treatment of youth in dangerousness assessments; Lang supported the need to consider extended sentences as alternatives. |
| R v Roberts [2016] EWCA Crim 71; [2016] 2 Cr App R (S) 14 | Change in penal policy (abolition of IPP/DPP for future offenders) does not warrant reducing sentences imposed lawfully under earlier regime; principles on extension of time applications. | The court applied Roberts to confirm that it may revisit pre-amendment IPP sentences only where the original imposition was not properly open to the Judge; Roberts also informed the court's approach to granting an extension of time, including consideration of delay and cogency of reasons. |
| R v Johnson [2007] 1 WLR 585 | Absence of serious physical harm to a victim does not preclude a finding of dangerousness. | The court cited Johnson (per Attorney's submissions) to support the proposition that the minimal injury in the robbery did not preclude a dangerousness finding; but nevertheless assessed the totality of evidence before endorsing the Judge's dangerousness finding. |
| R v Considine [2008] 1 WLR 414 | Court may take into account unproven incidents reported in material before sentence; sentencing is not confined to proven convictions. | The court accepted the Crown's point (citing Considine) that the Judge could properly consider material in reports (including unproven but credible accounts) when assessing dangerousness and the need for public protection. |
Court's Reasoning and Analysis
The court first examined whether the Judge erred in finding dangerousness. It reviewed the facts of the offence (planning, use of a large knife, role of the Appellant in instigating and organising the robbery) and the available risk material (pre-sentence report, psychologist's report and psychiatrist's report). The transcripts indicated Counsel for the Appellant had confirmed certain adverse factual material (the Appellant's account to the psychologist regarding violence to another inmate); absent any recorded intervention, the Judge was entitled to treat that account as true. The Appellant's lack of cooperation with psychiatric assessment and the medical opinion that he presented a significant risk reinforced the Judge's conclusion. The court therefore concluded there was no error in the dangerousness finding.
Secondly, the court considered whether the Judge properly addressed sentencing options available after statutory amendment (post 14 July 2008). It observed that the adjournment for psychiatric reports meant that, by the final hearing, the option of an extended determinate sentence (DPP) existed. Authorities (notably Attorney-General's Reference (No 55 of 2008) and Lang) required consideration of alternatives and reasons where an extended sentence might suffice. As the sentencing remarks contained no reference to consideration of an extended determinate sentence and the Judge had earlier indicated an intention to impose IPP, the court inferred that the extended sentence option had not been expressly considered. Given the appellant's youth and the material before the Judge, the court concluded the necessary protection could have been achieved by an extended determinate sentence of 10 years (5 years custody + 5 years extended licence).
Finally, applying principles on extension of time (Roberts), the court found the explanation for the delay and the substantive merits justified granting the lengthy extension and allowing the appeal to the extent of revisiting sentence.
Holding and Implications
HOLDING: The court granted the application for an extension of time, granted leave to appeal, allowed the appeal in part by quashing the IPP and substituting an extended determinate sentence totalling 10 years (a custodial term of 5 years with an extended licence period of 5 years).
Implications: The direct effect is that the Appellant's IPP was replaced by the specified extended determinate sentence. The court concluded that an extended determinate sentence would have provided adequate public protection in the circumstances; the decision revisits the original sentence on the basis that the Judge did not explicitly consider the extended sentence option available at final disposal. The opinion does not purport to overturn earlier authorities but applies them (including the requirement to consider alternatives to IPP where available) to the facts of this case.
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