Roberts & Ors, R. v

The Court of Appeal is a court of review. It reviews whether a sentence was wrong in principle or manifestly excessive on the material available at sentencing, together with properly admissible further material. It does not resentence an offender years later because the practical operation of an indeterminate sentence has proved more onerous than anticipated.

Where an imprisonment for public protection sentence was lawfully imposed under the statutory dangerous-offender regime, later difficulties concerning rehabilitation, release or recall are for the Parole Board, the Executive and Parliament. An extension of time requires an explanation for delay and is granted only where all the circumstances show that it is in the interests of justice.

Thirteen offenders applied, between five and nine years late, for extensions of time to seek leave to appeal sentences of imprisonment or detention for public protection imposed between 2005 and 2008. Most had served their minimum terms and remained in custody or had been recalled on licence.

They contended that the original dangerousness assessments were erroneous when tested against later authority, that the Court of Appeal could resentence them in light of the subsequent operation of their sentences, and that continued detention engaged articles 3 and 5 of the European Convention on Human Rights.

The common issue was whether the court should permit these very late challenges to sentences imposed under the former dangerous-offender provisions of the Criminal Justice Act 2003.

1. All thirteen applications for extensions of time were refused. Each sentencing judge had imposed imprisonment for public protection in accordance with the statutory regime then in force. On the material available at sentence, each offender either satisfied the statutory dangerousness test or fell within the statutory assumption of dangerousness, which had not been shown to be unreasonable.

2. The Court of Appeal is a court of review, not a body empowered to conduct a new sentencing exercise years later because events in custody, release arrangements or the penal system have produced an unexpectedly severe practical outcome. Under section 11 of the Criminal Appeal Act 1968, the question remains whether the original sentence was wrong in principle or manifestly excessive on the material properly relevant to that decision.

3. The court applied the guidance in R v Lang [2005] EWCA Crim 2864 and R v Johnson [2006] EWCA Crim 2486. The relevant inquiry was future risk of serious harm from further specified offending. A short minimum term did not undermine an otherwise lawful finding of dangerousness, and the court would not interfere merely because, with hindsight, a different sentencing outcome might now be thought preferable.

4. Alleged failures in the operation of the post-sentence regime did not invalidate the original sentences. Continued detention under an indeterminate sentence remained the consequence of that sentence unless and until the Parole Board judged release safe. A breakdown in the review system, or failures by the Secretary of State in providing rehabilitation, would require the appropriate public-law or other remedy; it would not convert a lawful original sentence into an erroneous one.

5. In deciding whether to extend time, the court considered all circumstances, including the explanation for delay and the merits. Time limits remain important and are to be strictly observed unless there are good and exceptional reasons. The exceptional decision to review these conjoined applications in detail did not alter that practice.

6. The court observed that any general correction of the consequences of the abolished IPP regime was for Parliament or the Executive, including through the release-threshold power in section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, rather than through retrospective resentencing by the court.

• Court of Appeal (Criminal Division): refused thirteen applications for extensions of time to seek leave to appeal against IPP sentences: [2016] EWCA Crim 71.
• Crown Court: imposed the respective sentences of imprisonment or detention for public protection between 2005 and 2008 under the former dangerous-offender provisions of the Criminal Justice Act 2003.