Hart, R v

A finding of dangerousness for the purpose of an extended sentence requires an evidential basis for a significant risk of serious harm from future offending. Significant risk means a risk of considerable importance. It cannot rest on speculation, apprehension, the vulnerability of the original victim, or an offender’s lack of full insight alone. In assessing future risk, the court must evaluate the whole evidential picture, including any pattern of offending, later repetition, and objective risk assessments. Serious historic sexual offending, without more, may not establish the requisite significant risk.

The appellant pleaded guilty to indecent assaults and rapes committed against a girl aged 13 and 14 in 2000 and 2001. The offences followed grooming and continued over several months. He had no previous convictions and there was no evidence of further offending during the approximately 17 years before his arrest.

At the Crown Court at Maidstone, the judge found the appellant dangerous and imposed an extended sentence of 15 years, comprising 12 years’ custody and a three-year extended licence period. The appellant appealed against that finding and sentence. The central issue was whether the evidence justified a finding of a significant risk of serious harm from further specified offences.

1. Appeal allowed. The finding that the appellant was dangerous was unwarranted. The extended sentence imposed for count 3 was quashed and replaced with a concurrent determinate sentence of 12 years’ imprisonment.
2. For the dangerousness provisions of the Criminal Justice Act 2003, a significant risk is one of considerable importance. Following R v Lang [2006] 2 Cr App R(S), the statutory threshold is not met by a risk which is merely conceivable or insufficiently substantial.
3. The court applied the reasoning in R v Xhelollari [2007] EWCA Crim 2052. A conclusion that there is a significant risk of serious harm from future offending must be founded on evidence, rather than speculation or apprehension arising from the original offence, the victim’s vulnerability, or an offender’s failure fully to acknowledge guilt.
4. Here, there was no pattern of offending against separate victims and no repetition in the approximately 20 years since the offences. The objective assessment tools placed the appellant in a very low risk category. Even the probation officer’s higher assessment was only of a medium risk of harm to persons under 16 in a domestic family setting. That evidence did not justify elevating the risk to the statutory level of a significant risk to the public of serious harm.

• Court of Appeal (Criminal Division): Allowed the sentence appeal, overturned the dangerousness finding, quashed the extended sentence and substituted a concurrent determinate sentence of 12 years’ imprisonment.
• Crown Court at Maidstone: On 10 August 2018, imposed an extended sentence of 15 years, comprising 12 years’ custody and a three-year extended licence period.