R v Ahmed

A discretionary life sentence remains available at common law for an offence outside the statutory life-sentence provisions, but it is a sentence of last resort appropriate only in rare cases. The two-stage test requires a very serious offence and good grounds for believing that the offender may remain a serious danger to the public for an indeterminate period. In this context, serious danger principally concerns further serious violence or serious sexual offending. Very serious, calculated and sustained perverting of justice, involving psychological aggression and a risk of further manipulation, did not satisfy that test where there was no evidence of a risk of such violent or sexual offences. The life sentence was quashed and a 10-year determinate sentence substituted, with an indefinite restraining order.

The appellant pleaded guilty to one count of perverting the course of justice and one count of conspiring to pervert the course of justice. The Oxford Crown Court sentenced her to discretionary life imprisonment with a minimum term of four years, six months and 10 days.

She appealed against sentence, arguing that a determinate sentence, reinforced by protective orders, was available and that the minimum term was excessive. The central issues were whether a discretionary life sentence was available for an offence outside the statutory dangerous-offender regime, whether the common-law test was satisfied, and what determinate sentence should replace the life sentence.

1. Appeal allowed in part. The life sentence was quashed and a determinate sentence of 10 years’ imprisonment substituted. The appellant was to receive credit for time spent on remand and would serve half the sentence in custody before release on licence.
2. The common-law power to impose a discretionary life sentence survived the enactment of the statutory regimes in the Criminal Justice Act 2003 and the Sentencing Act 2020. It was available for an offence outside the statutory lists where the offence carried life imprisonment, but it remained a discretion and had not been extended by the statutory schemes. R v Ali [2019] EWCA Crim 856 authoritatively confirmed that position.
3. The governing test, stated in Attorney General’s Reference (No 32 of 1996) (R v Whittaker) [1997] 1 Cr App R (S) 261, had two stages: the offender must have been convicted of a very serious offence, and there must be good grounds for believing that the offender may remain a serious danger to the public for a period which could not be reliably estimated at sentence. The expression serious danger principally concerned particularly serious violent or sexual offending. The life sentence remained a sentence of last resort, appropriate only in rare cases.
4. The offending was calculated, sophisticated and sustained, and justified a long sentence. However, it did not involve very serious violent or sexual offending of the kind contemplated by the authorities. The evidence of future risk concerned psychological aggression, manipulation, harassment and related harm. There was no evidence of a risk of future serious violence or sexual offending. The possibility of reducing the risk through psychological intervention and controls further weakened the case for an indeterminate sentence. Although psychological harm could constitute bodily harm, it did not amount to the relevant serious danger on these facts.
5. The court expressed no view on other possible cases where the danger of serious violent or sexual offences might be absent. Sentencing for perverting the course of justice was intensely fact-sensitive. The authorities showed that exceptionally serious cases could attract sentences in double figures, but the appropriate sentence here was 10 years. An indefinite restraining order was imposed for the protection of the victim, his wife and their family.

1. Court of Appeal (Criminal Division): allowed the appeal in part, quashed the discretionary life sentence, substituted 10 years’ imprisonment and imposed an indefinite restraining order. [2021] EWCA Crim 1786
2. Oxford Crown Court: on 19 April 2021 sentenced the appellant to life imprisonment with a minimum term of four years, six months and 10 days.