Jay Jermaine Davis v R

Under the repealed dangerous-offender scheme, an indeterminate DPP or IPP sentence was a last resort where it was discretionary. The court had to consider whether a determinate or extended sentence, together with other protective measures, would suffice.

Age and developmental maturity were material both to dangerousness and to sentence choice. Sentencers had to assess the risk likely to exist on release, recognise young people’s capacity to change, and give reasons showing that the alternatives had been considered. Failure to do so was an error of law.

Six unconnected appellants challenged sentences of detention or imprisonment for public protection imposed under the repealed dangerous-offender provisions in Chapter 5 of Part 12 of the Criminal Justice Act 2003. Davis and Tolbert were sentenced under the first iteration of the scheme; McLaren, Webster, O’Neill and Hibbert were sentenced under the second iteration.

The appeals concerned the relevance of age and maturity to dangerousness, the need to consider determinate and extended sentences, and the effect of failures to give adequate reasons. Five appeals were allowed. Hibbert’s appeal was adjourned to permit investigation of a possible disposal under the Mental Health Act 1983.

The court applied the approach in R v Roberts [2016] 2 Cr App R (S) 14: an appeal against an old indeterminate sentence could succeed where an error of law meant that the sentence ought not to have been imposed when it was passed.

1. Age and maturity. The offender’s age and developmental maturity had to remain at the forefront of both the dangerousness assessment and the choice of sentence. The potential for young people to change and mature required a less pessimistic assessment of future risk. This principle applied to offenders under 18 and, under the second iteration, to young adults over 18. The earlier guidance in R v Lang [2005] EWCA Crim 2864 was binding and had foreshadowed the modern approach.
2. Indeterminate sentences as a last resort. Where DPP or IPP was not mandatory, the court had to consider the total protective sentencing package. Having rejected a discretionary life sentence, it had to consider determinate and extended sentences and any additional protective orders. DPP or IPP could be imposed only if those alternatives were inadequate.
3. Reasons and appellate intervention. No particular form of words was required, but the sentencing remarks had to show that the relevant age, maturity, risk and alternatives had been considered. A failure to consider an available extended sentence, or a merely cursory rejection of it, could amount to an error of law. The Court of Appeal could then revisit the sentence and substitute an appropriate lower sentence.
4. Risk and later material. Dangerousness was assessed at sentence, but the choice of sentence required consideration of the risk expected on release. Automatic release under the former extended-sentence regime did not itself make that sentence inadequate. Post-sentence information could be considered in limited circumstances, but fresh psychiatric evidence generally required an application under section 23 of the Criminal Appeal Act 1968.

Davis’s dangerousness finding was unsustainable; Tolbert’s sentencing process was unacceptable; and McLaren, Webster and O’Neill had been sentenced without proper consideration of the applicable discretion and alternatives. Their DPP or IPP sentences were quashed and replaced. Hibbert’s appeal was adjourned.

1. Court of Appeal (Criminal Division): In [2026] EWCA Crim 743, five appeals were allowed. The DPP or IPP sentences were quashed and replaced with determinate or extended sentences. Hibbert’s appeal was adjourned for further evidence.
2. Earlier appellate proceedings: Davis’s earlier application was refused, including in Considine and Davis [2007] EWCA Crim 1166. O’Neill’s earlier appeal was dismissed in [2010] EWCA Crim 513. Davis, O’Neill and Hibbert were later referred by the Criminal Cases Review Commission. McLaren was granted leave by the Full Court; the applications of Tolbert and Webster were referred for consideration of leave and extensions of time.
3. Crown Court: The original sentences were imposed in the Crown Courts at Portsmouth, Nottingham, Leeds, Manchester and Preston under the first or second iteration of the dangerous-offender provisions.