Factual and Procedural Background
The Sexual Offences (Amendment) Act 1992 anonymity provisions apply to the complainant in this matter.
On 7 January 2010 in the Crown Court at The City the Applicant, then aged 49, pleaded guilty to one count of inciting a child under 16 to engage in sexual activity contrary to s.10 Sexual Offences Act 2003 and was sentenced to Imprisonment for Public Protection (IPP) with a two year minimum term. By this application (referred by the Registrar to the full court) the Applicant seeks an extension of time of 5,592 days to apply for leave to appeal his sentence, contending that the IPP was manifestly excessive and that an extended determinate sentence should have been imposed.
Facts as found at sentence: between 31 August and 5 November 2008 the Applicant approached the Complainant (then 15) on a number of occasions, invited him into the Applicant's camper van, discussed sexual matters, offered money for oral sex, sent text messages and wrote a letter thereafter. On the final visit there were two other young boys in the van; the Complainant reported the matter and the Applicant was arrested. In interview the Applicant denied the sexual conversation and recanted the offer.
The Applicant had earlier convictions: a 1991 conditional discharge for ABH, a 1994 sentence of 4 years for attempted buggery and indecent assault on a male under 14, and a 2000 sentence of 5 years for indecent assault on a male aged 16. The pre-sentence report and the police children protection unit assessed the Applicant as manipulative, predatory and posing a high/very high risk to young males; the author recommended that community management was not possible and raised the question whether an IPP or an extended determinate sentence was appropriate.
At sentence the Judge found the Applicant dangerous, fixed a notional determinate term of 4 years, and imposed an IPP with a two year minimum term and a Sexual Harm Prevention Order without time limit.
The Registrar referred the Applicant's application for extension of time to this court. The court heard submissions from Attorney Knight on behalf of the Applicant and Attorney Davis for the Crown. The court allowed the very long extension, granted leave to appeal, quashed the IPP and substituted an extended determinate sentence of 12 years (4 years custody plus 8 years extended licence), while retaining the Sexual Harm Prevention Order without time limit.
Legal Issues Presented
- Whether the Applicant should be granted a very long extension of time to apply for leave to appeal against sentence.
- Whether the sentencing Judge erred in law by imposing an IPP rather than giving specific and express consideration to imposing an extended determinate sentence (i.e. whether the IPP was manifestly excessive and the Judge failed to consider statutory alternatives in accordance with authority).
Arguments of the Parties
Applicant's Arguments
- There was a delay of more than 15 years in bringing the application for reasons explained by Attorney Knight (difficulty identifying original representatives, unsuccessful approaches to solicitors, instructions only obtained in 2025).
- No challenge to the finding of dangerousness; the challenge is to the selection of IPP rather than an extended determinate sentence.
- The pre-sentence report itself suggested the court might consider an extended determinate sentence; the sentencing remarks contain no indication that the Judge considered an extended determinate sentence or explained why IPP (an indeterminate, similar sentence) was necessary.
- The offence involved no actual sexual contact, no coercion or violence, was not sophisticated and did not represent escalation, so IPP was manifestly excessive; alternatively, a determinate custodial term of 4 years with an extended licence (up to 8 years) would achieve public protection.
Crown's Arguments
- The IPP was properly imposed in accordance with the law as it stood in January 2010; the Judge understood the law and applied the correct test of necessity.
- Even though an extended determinate sentence was available, the Judge could properly conclude that only an IPP provided the necessary protection given the Applicant's very serious prior convictions, failure to be deterred by previous sentences, manipulative grooming, planning and persistence, the presence of two young boys on the final occasion, and the Applicant's admission he would have proceeded if consented.
- The consequences of the IPP (long time spent in custody) are matters of Parliament and not relevant to revisiting a properly imposed IPP; the sentence was risk-based and forward-looking.
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 |
The court should have in mind all alternative and cumulative methods of providing necessary public protection; IPP is the most draconian sentence after discretionary life and should be last resort; where an extended sentence can achieve appropriate protection it should be preferred; fact-specific decision. |
The court held that the sentencing Judge failed to give specific and express consideration to an extended determinate sentence as required by this authority and therefore did not follow relevant sentencing provisions as interpreted by this Court. |
| R v Wilkinson [2009] EWCA Crim 1925; [2010] 1 Cr. App. R.(S.) 100 |
IPP shares many features with a life sentence—its justification is public protection; indeterminate; release depends on Parole Board; the court must fix a minimum term by reference to a hypothetical determinate term. |
The court relied on these observations to note the similarity between IPP and life sentences and the need for explanation when choosing IPP over extended determinate options. |
| R v Lang [2005] EWCA Crim 2864; [2005] 2 Cr. App. R. (S.) 3 |
Similar observations on IPP in the pre-amendment regime (per Rose LJ). |
Referenced to support the characterization of IPP and the court's approach to dangerousness and sentencing alternatives. |
| R v Roberts [2016] EWCA Crim 71; [2016] 2 Cr App R (S) 14 |
Change in penal policy (abolition of IPP for later offenders) does not entitle courts to reduce sentences correctly imposed under the law then in force; applications for extension of time are discretionary and require reasons; court considers explanation for delay and cogency of reasons in interests of justice. |
The court applied Roberts to confirm the framework for extension of time applications and to justify revisiting the sentence where the sentencing Judge had not followed relevant sentencing provisions. |
Court's Reasoning and Analysis
The court accepted that the Applicant's offending and previous convictions established the statutory test of dangerousness. However, it concluded the sentencing Judge did not give specific and express consideration to whether an extended determinate sentence would achieve appropriate public protection, contrary to the guidance in Attorney-General's Reference (No 55 of 2008). The sentencing remarks contained no reference to that possibility: after rejecting discretionary life the Judge proceeded directly to IPP without explaining why an extended determinate sentence would not suffice. The court inferred that counsel and the parties may not have reminded the Judge of the guidance, but regardless the Judge's remarks showed no real consideration of the alternative.
On that basis the court found the sentencing Judge had not followed the relevant sentencing provisions as interpreted by this Court and therefore, applying the Roberts framework for extension of time and appellate review, revisited the sentence. Having considered the original material, the court concluded that an IPP was not justified and that the appropriate sentence was an extended determinate sentence of 12 years (4 years custody plus 8 years extended licence), with the existing Sexual Harm Prevention Order retained.
Holding and Implications
The court granted the extension of time, granted leave to appeal, allowed the appeal in part, quashed the IPP and substituted an extended determinate sentence of 12 years (4 years custody and 8 years extended licence), and retained the Sexual Harm Prevention Order without time limit.
Direct effect: the Applicant's IPP was replaced by the stated extended determinate sentence; the Sexual Harm Prevention Order remains. The decision was based on correcting a procedural and legal omission in the sentencing exercise in light of existing authority; the court did not purport to establish a new general precedent beyond applying and enforcing established guidance.