Thornton, R. v

A finding of dangerousness must rest on a prospective assessment of the risk of further specified offences. Historic offending may be a powerful indicator, but its predictive force may diminish after a long offence-free period. The court must address intervening conduct and current circumstances, including age, disability, ill-health, supervision and protective orders.

Where those matters mean that past offending may not reliably indicate present risk, a pre-sentence or psychiatric report may be required. For qualifying offenders of particular concern, Criminal Justice Act 2003 section 236A requires a custodial term plus a 12-month licence period. Consecutive qualifying sentence groups can carry consecutive licence periods, provided the substituted sentence is not more severe overall.

The appellant was convicted after trial at Bradford Crown Court of eleven historic sexual offences against children at a residential home between 1971 and 1978. On 7 July 2017, the judge imposed a 22-year extended sentence, comprising 19 years’ imprisonment and a three-year extended licence period.

The judge found the appellant dangerous because of the seriousness, duration and indiscriminate nature of the offending, an attempt to contact a complainant, and his lack of remorse. The appellant appealed the dangerousness finding, the lawfulness of the extended sentence, and the alternative sentencing regime applicable if he was not dangerous.

The central issues were whether dangerousness had been properly established and how the sentence should be restructured under Criminal Justice Act 2003 section 236A and Schedule 18A.

1. Appeal allowed. The finding that the appellant was dangerous was not properly open to the sentencing judge on the material available. The extended sentence was quashed and replaced by a 21-year sentence comprising 19 years’ imprisonment and a two-year licence period.

2. Dangerousness required a prospective assessment of a significant risk of serious harm from future specified offences. The historic offending was grave and could strongly indicate future risk. However, the judge focused predominantly on conduct about 40 years earlier and did not adequately address the absence of further offending, evidence of good character, or the effect of the passage of time.

3. Although reports are not necessary in every case and do not bind the court, this was a case in which a pre-sentence report and psychiatric report should have been obtained. The long interval since the offending and the appellant’s intervening conduct meant that past offending might not reliably indicate present risk. A detailed assessment was also required of his blindness, age, congenital ill-health, likely age on release, supervision and the continuing Sexual Harm Prevention Order.

4. As the appellant was not dangerous, the court was required to sentence him as an offender of particular concern under Criminal Justice Act 2003 section 236A. Counts 2, 8 and 9 fell within Schedule 18A through the abolished-offences provision. Each qualifying sentence had to consist of the appropriate custodial term and a 12-month licence period.

5. Applying R v Fruen [2016] EWCA Crim 561, the consecutive group containing count 2 carried one 12-month licence period, while the concurrent group containing counts 8 and 9 carried a further 12-month period. Applying R v Thompson [2018] EWCA Crim 639, that restructuring did not contravene Criminal Appeal Act 1968 section 11(3), because the appellant was not dealt with more severely overall. He would be eligible in principle for parole halfway through the 19-year custodial term.

• Court of Appeal (Criminal Division): Allowed the appeal, quashed the 22-year extended sentence and substituted a 21-year sentence comprising 19 years’ imprisonment and a two-year licence period.
• Crown Court at Bradford: On 7 July 2017, following trial, imposed a 22-year extended sentence comprising 19 years’ imprisonment and a three-year extended licence period.