R v Mohammed Zulfqar

Where imprisonment for public protection is discretionary, the sentencing court must consider all available disposals and protective measures, including an extended sentence. It must assess whether the overall sentencing package adequately protects the public and explain why imprisonment for public protection is necessary, including why an extended sentence would not suffice. Failure to engage with that discretion is an error of principle. Serious offending and dangerousness alone do not remove the duty to consider alternatives. The offender’s age, potential for change and the possibility of managing risk through an extended sentence are material. Appellate restraint concerning dangerousness assessments does not determine an appeal based on failure to consider alternative disposals.

Following a guilty plea to attempted rape, the Crown Court at Birmingham sentenced the applicant on 25 February 2010 to imprisonment for public protection, with a minimum term of three years less one day. He was also made subject to lifelong sex-offender notification requirements. No appeal was brought at the time.

After obtaining legal advice in custody, the applicant sought extensions of time and leave to appeal. He argued that the sentencing judge had failed to consider an extended sentence and had not explained why it would not adequately protect the public. The central issue was whether that omission made the sentence wrong in principle.

1. Outcome. The court granted the extensions of time and leave to appeal. The appeal was allowed. The sentence of imprisonment for public protection was quashed and replaced with an extended sentence.
2. Statutory discretion. Under the amended Criminal Justice Act 2003, imprisonment for public protection was discretionary where the statutory conditions were met. An extended sentence was also available. The pre-sentence report incorrectly stated that the offence created a presumption of eligibility for imprisonment for public protection, but the sentencing judge proceeded on the basis that no such presumption applied.
3. Required approach. The court applied the approach in Attorney General’s Reference No 55 of 2008 (R v C and others) [2008] EWCA Crim 2790, (2009) 1 WLR 2158. The judge had to consider all available disposals and the overall protective sentencing package. The judge also had to explain why imprisonment for public protection was necessary and why an extended sentence would not provide sufficient protection. The sentencing remarks did not show that this exercise had been undertaken. Neither the seriousness of the offending nor the finding of dangerousness supplied a sufficient basis for treating an extended sentence as inadequate.
4. Appellate review and application. R v Howlett [2019] EWCA Crim 1224 concerned the limited circumstances in which an appellate court should interfere with a trial judge’s assessment of dangerousness. It did not address the distinct error alleged here. The applicant’s age, potential for change and the possibility of managing risk through an extended sentence and other protective measures were significant. The court substituted a custodial term of six years less one day and an extension period of five years. The lifelong notification requirements remained in force, and the substituted sentence took effect from the original sentencing date.

• Court of Appeal (Criminal Division): On 11 November 2025, the court granted extensions of time and leave to appeal, allowed the appeal, quashed the imprisonment for public protection sentence and substituted an extended sentence: [2025] EWCA Crim 1683.
• Crown Court at Birmingham: On 25 February 2010, following a guilty plea to attempted rape, the applicant was sentenced to imprisonment for public protection with a minimum term of three years less one day.