AYO & Ors. v The King

An assessment of dangerousness must be made at the date of sentence, on the premise that the offender is not in custody. An extended sentence becomes available when the statutory criteria are met, but it is not compulsory. The court must still decide whether it is necessary for public protection.

The custodial term must remain the shortest term commensurate with seriousness. An extension period must be no longer than necessary to protect the public. In multiple sexual-offence cases, totality requires a just and proportionate overall sentence. A phrase such as campaign of rape is not a legal category and cannot replace a careful assessment of the offending as a whole.

Six unconnected offenders appealed, or applied for leave to appeal, against lengthy extended determinate sentences or special custodial sentences imposed for grave sexual offending. The appeals came from Crown Courts at Kingston-upon-Hull, Nottingham, Portsmouth, Bradford and Birmingham.

The court considered common issues concerning dangerousness, the choice between extended, special custodial and ordinary determinate sentences, the proper length of custody and extended licence periods, and totality in multiple-offence cases. It also addressed historic sentencing powers and procedural errors in pronouncing sentences.

The central question was whether the sentences, or their structure, were lawful and just and proportionate.

1. General approach. The court set out the sentencing sequence under the Sentencing Code. Dangerousness is assessed at the date of sentence on the premise that the offender is not in custody. The assessment may nevertheless take account of relevant predictive material, including likely maturation, age, ill health, rehabilitation prospects and the protection supplied by a long custodial term.

2. An extended sentence is only available when the criteria in section 280 are satisfied. It remains open to impose a standard determinate sentence, or where applicable a special custodial sentence, if that will sufficiently protect the public. The practical release and licence consequences may be considered when choosing the necessary form of sentence, but must not inflate the appropriate custodial term or determine concurrent and consecutive structure.

3. Length and totality. The appropriate custodial term must be the shortest term commensurate with seriousness. An extended sentence protects the public by extending licence, not by increasing custody beyond that term. In multiple sexual-offence cases, a total custodial term exceeding about 30 years after trial will be comparatively rare and reserved for particularly serious offending. The expression campaign of rape is not a term of art. Repetition may justify a major increase from an individual-offence starting point, but totality still requires an overall sentence that is just and proportionate.

4. The extension period requires a fact-specific assessment. It must not exceed what is necessary to protect the public from serious harm, having regard to the offences, the offender’s circumstances and what rehabilitation can realistically be achieved during licence. A special custodial sentence is indivisible: consecutive such sentences carry consecutive one-year licence periods.

5. Individual outcomes. The court allowed the appeals of AYO, BKL, Burgess and BCJ in part, reducing their overall custodial terms to 30, 28, 31 and 25 years respectively, and correcting unlawful or erroneous individual sentences. It dismissed Elahi’s appeal: his 32-year custodial term and eight-year extension period were severe but not manifestly excessive. AVJ’s application for leave to appeal was refused.

6. In Elahi’s case, sentences on every count had to be pronounced in open court. A variation under the slip rule also had to be announced, with reasons, at a public hearing. The procedural errors did not make the sentences unlawful; the court corrected them when handing down judgment.

• Court of Appeal (Criminal Division): In [2022] EWCA Crim 1271, reduced the sentences of AYO, BKL, Burgess and BCJ; dismissed Elahi’s sentence appeal; and refused AVJ leave to appeal.
• Crown Courts: Lengthy extended determinate sentences or special custodial sentences had been imposed at Kingston-upon-Hull, Nottingham, Portsmouth, Bradford and Birmingham. No lower-court neutral citations were stated.