S & Ors, R v

An extension period imposed under sections 227 or 228 of the Criminal Justice Act 2003 begins when the custodial term fixed by the court ends. It does not begin on the offender’s earlier release on licence.

A finding of dangerousness requires a significant risk that the offender will cause serious harm, meaning death or serious injury, through further specified offences. A risk of reoffending alone is insufficient. A pre-sentence report is important but does not determine the assessment.

Where an indeterminate sentence is imposed for public protection, the notional determinate term must not duplicate the element of risk already addressed by the indeterminate sentence.

Nine unrelated offenders appealed sentences imposed before the Court’s guidance in Lang & Ors [2005] EWCA Crim 2864. The appeals concerned extended sentences for specified violent offences and sentences of imprisonment or detention for public protection for serious violent or sexual offences.

The common issues included the statutory meaning of an extension period under sections 227 and 228 of the Criminal Justice Act 2003, and whether the evidence justified findings that particular offenders posed a significant risk of serious harm through further specified offences. Other issues concerned the proper structure of sentences, the role of pre-sentence and psychiatric reports, and indictment counts spanning changes in sexual-offence and dangerous-offender regimes.

1. All nine appeals were allowed to the extent stated. The court gave a provisional but operative construction of sections 227 and 228 of the Criminal Justice Act 2003. The extension period begins at the end of the custodial term fixed by the sentencing court, whether that term has been spent wholly in custody or partly on licence. That reading follows the natural language of the provisions, avoids a short extension reducing the ordinary licence period, and maintains the former legislative concept that the extended period is additional to the initial licence period.

2. The court applied the guidance in Lang & Ors [2005] EWCA Crim 2864. Dangerousness depends on a significant risk of death or serious injury from further specified offences; a substantial risk of further offending, or of lesser harm, does not suffice. On that basis, the extended sentences imposed on Parsons and Carr, and the indeterminate sentences imposed on Taylor and Coyne, were quashed. The findings of dangerousness in S, Burt and Denton were sustainable.

3. Once dangerousness was found under section 228, an extended sentence had to be imposed for each specified offence, normally concurrently. It was also undesirable to impose a determinate sentence consecutively to an extended sentence, or vice versa. The court varied the sentences accordingly.

4. A pre-sentence report is an important factor in assessing risk but is not determinative. Whether its author should be cross-examined is primarily for the sentencing judge; necessity will arise only rarely. Where a psychiatric report is needed for the risk assessment, it should generally address the risk of serious harm.

5. For H, convictions for two counts wrongly charged under the repealed Sexual Offences Act 1956 were quashed. The court reduced both the actual and notional determinate terms to ten years. In fixing a notional determinate term following an indeterminate sentence, the court must avoid double counting the risk addressed by the indeterminate sentence.

• Court of Appeal (Criminal Division): In this consolidated judgment, the court allowed each appeal to the extent stated, quashed two convictions against H, and varied or replaced the challenged sentences.
• Crown Courts: The sentences appealed were imposed at Bradford, Swindon, Coventry, Bolton, Derby, Southampton, Maidstone and Merthyr Tydfil Crown Courts following committal or guilty pleas in the magistrates’ courts and Crown Courts concerned.