R v Carl MacDowall

An adult sentencing court must obtain and consider a pre-sentence report before assessing dangerousness where the statutory requirements apply, unless it reasonably considers a report unnecessary in the circumstances. The report informs the court but does not determine risk. The court must itself assess whether there is a significant risk of serious harm from further specified offences. A finding of dangerousness does not automatically require an extended sentence. An ordinary determinate sentence may provide sufficient public protection. The exception permitting no report is fact-sensitive. A judge with direct knowledge of the trial and offender may conclude that a report is unnecessary where the offence, offending background and other information make the risk assessment sufficiently clear.

This was an appeal against sentence by a 24-year-old offender convicted after trial at Liverpool Crown Court of kidnapping, possessing a firearm with intent to cause fear of violence and wounding with intent. He had also pleaded guilty to two Class A drug offences. The trial judge imposed an extended sentence of 20 years, comprising 17 years’ custody and a three-year extended licence, together with concurrent sentences for the other offences and a consecutive three-year sentence for one drug offence.

The appellant accepted that the custodial term was not arguably manifestly excessive. He argued that the extended licence was unjustified because the sentencing judge had failed to obtain a pre-sentence report before deciding that he was dangerous. The central issues were whether a report was mandatory, whether the omission invalidated the sentence, and whether an extended sentence was necessary for public protection.

The court dismissed the appeal against sentence.

1. Under Sentencing Act 2020, section 30 required the sentencing judge to obtain and consider a pre-sentence report before forming an opinion to which the report requirements applied, unless the judge considered it unnecessary in the circumstances. The obligation was therefore mandatory but subject to a fact-sensitive exception. Failure to obtain a report did not itself invalidate the custodial sentence.

2. The statutory dangerousness assessment required consideration of whether there was a significant risk to members of the public of serious harm caused by further specified offences. The court had to take account of the nature and circumstances of the offences and could consider other convictions, patterns of behaviour and information about the offender. A risk assessment in a report guided but did not bind the sentencing court. Under R v Lang [2005] EWCA Crim 2864, a judge contemplating a different assessment should give counsel an opportunity to address the proposed departure.

3. A finding of dangerousness did not necessarily require an extended sentence. As recognised in R v Burinskas [2014] EWCA Crim 334, an ordinary determinate sentence might sufficiently protect the public. The additional safeguards of an extended licence and Parole Board involvement had to be justified.

4. The guidance in R v Johnson and Others [2019] EWCA Crim 2503 and R v Fryer [2022] EWCA Crim 1837 supported obtaining a report in serious cases, given the consequences of an extended sentence and the difficulty of assessing dangerousness. However, the present case was materially more serious. The sentencing judge had conducted the trial, heard the appellant give evidence, and had information about the firearm offence, permanent injury, Class A drug dealing, pro-criminal attitudes and aggressive prison conduct. In those circumstances, he was entitled to conclude that a report was unnecessary.

5. The Court of Appeal obtained and considered the required pre-appeal report. Its assessment of high risk reinforced the conclusion that the appellant was dangerous, but the court remained responsible for its own assessment. The decision that only an extended sentence would provide adequate public protection was unimpeachable, and the three-year extension was moderate.

• Court of Appeal (Criminal Division): On 7 March 2024, the appeal against sentence was dismissed. The court upheld the extended sentence.
• Crown Court at Liverpool: On 26 January 2023, the trial judge imposed an extended sentence of 20 years, comprising 17 years’ custody and a three-year extended licence, with other concurrent and consecutive sentences.