C & Ors, R v

Consecutive extended sentences, and combinations of extended and determinate sentences, are not unlawful. Under the earlier extended-sentence regime, they should ordinarily be avoided save in exceptional circumstances. Under the Criminal Justice Act 2003, sentencers should also proceed with great caution because the release provisions create practical difficulties.

Concurrent sentences should be used where they can reflect the total criminality. If consecutive sentences are necessary, determinate sentences should be imposed first and the extended sentence or sentences made consecutive. The sentencing order need not follow the chronological order of offending. An appellate court will not interfere merely because consecutive sentences were imposed, unless their practical operation creates an insuperable administrative difficulty or the result is otherwise excessive.

Five sentence appeals were considered together because they raised recurring problems about extended sentences under the earlier statutory regime and the Criminal Justice Act 2003.

The appellants had received combinations of extended and determinate sentences for sexual, violent, public-order and bail offences. Some challenged the use or ordering of consecutive sentences. In one case the record of sentence was erroneous; in others the total sentence or its structure was challenged. The common issue was how consecutive and concurrent extended sentences should be imposed and administered, particularly in light of the differing release arrangements under the two regimes.

1. The court held that consecutive extended sentences, and consecutive combinations of extended and determinate sentences, are lawful under both regimes. Earlier guidance, including R v Nelson and R v Pepper, remained sound: for offences governed by the earlier regime, such arrangements should generally be avoided, save exceptionally. They do not, however, invalidate a sentence merely because they have been imposed.

2. An extended sentence under sections 227 and 228 of the Criminal Justice Act 2003 is a single sentence comprising the custodial term and the extension period. Its release provisions differ from those for determinate sentences. The court approved the practical approach that, where a determinate sentence is followed by an extended sentence, the prisoner serves one half of the determinate sentence and then is dealt with under section 247 in respect of the extended sentence.

3. Section 264(2) could, if read strictly, permit the Secretary of State to defer release until the aggregate custodial periods had been served. The Secretary of State had confirmed that effect would nevertheless be given to section 247(2). Since section 264(2) is discretionary, any departure from the stated practical approach would require justification. Where a determinate sentence is expressed to follow an extended sentence, the final part of custody should similarly be treated as the extended sentence’s custodial term, so that the Parole Board can consider early release at the appropriate stage.

4. Sentencers should normally use concurrent sentences and adjust the custodial term or minimum period to reflect overall criminality. If consecutive sentences are required, determinate sentences should be imposed first and extended sentences expressed to be consecutive. The court will not interfere with such an order unless its administration presents an insuperable difficulty, or the practical result is manifestly excessive.

5. Individual appeals. C’s appeal was allowed to correct the record and reduce sentences for making indecent photographs. Bartley’s appeal was allowed by substituting a 36-month extended sentence for one affray and making the other extended sentence concurrent. Baldry’s appeal was dismissed. Price’s appeal was allowed by reducing the extended sentence and imposing the bail sentence consecutively. Broad was granted leave to appeal; representation and further information about administration of his sentence were directed before determination.

• Court of Appeal (Criminal Division): In C & Ors, R v [2007] EWCA Crim 680, the court determined the sentence appeals together, varying the sentences of C, Bartley and Price, dismissing Baldry’s appeal, and giving directions in Broad’s appeal.
• Crown Court: The underlying sentences were imposed at Bournemouth, Manchester, Chelmsford/Basildon, Lincoln and St Albans respectively. No lower-court citation is stated in the judgment.