In this issue
R v Toure [2020] 4 WLR 17
Acquitted of rape; obtaining reporting restrictions
Sentencing Law Update
Longer sentences for sexual and violent offences due to alterations in the early release provisions
Sentencing Law Update

By Tayyiba Bajwa




On 1 April 2020 the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 entered into force. This Order changed the automatic release point for relevant individuals from the half-way point to the two-thirds mark. The two-thirds change applies to prisoners convicted of a relevant sexual or violent offence, where the maximum sentence is life and who receive a standard determinate custodial sentence of 7 years’ or more. The change also applies to those serving consecutive terms of imprisonment for any sentence of 7 years or more for a relevant sexual or violent offence. The relevant sexual offences are those specified in Part 2 of Schedule 15 to the Criminal Justice Act 2003.


Importantly, and unlike the Terrorist Offenders (Restriction of Early Release) Act 2020, this change is not retrospective and will only affect those sentenced in relation to relevant offences after 1 April 2020. The Order will also not affect those who were under 18 at the time the relevant sentence was imposed or those subject to special custodial sentences under s.236A of the 2003 Act.


Sexual Harm Prevention Orders


R v Inches [2020] EWCA Crim 373


This was an appeal against the terms of a Sexual Offences Prevention Order (the predecessor to the Sexual Harm Prevention Order) imposed in 2009. The appellant objected to the prohibitions relating to the use of the internet and on possessing a mobile phone with a camera as being manifestly excessive. The Court found that the correct approach would be to apply to the Crown Court to vary the terms of the Order as the Order had been properly imposed and the Court’s appellate powers on sentence were only engaged where the sentence was shown to be manifestly excessive or wrong in principle.


This may represent a change of approach when contrasted with the earlier decisions in R v Hewitt [2018] EWCA Crim 2309 [2019] 1 Cr. App. R. (S.) 34 and R v Connor [2019] EWCA Crim 234 [2019] 4 W.L.R 76 where the Court of Appeal quashed aspects of Sexual Harm Prevention Orders which related to restrictions on accessing the internet and owning devices capable of recording images as being unworkable, ineffective and oppressive.


The Court of Appeal has also emphasised that before imposing Sexual Harm Prevention Orders, the sentencing court must give due consideration to whether such an order was necessary to protect the public from sexual harm from the applicant (R v AB [2019] EWCA Crim 2480).  In this case where the sexual element of the crime of which the appellant had been convicted (child abduction) had not been proven, the Court of Appeal quashed the order that had been imposed.





R v Green [2019] EWCA Crim 196 [2019] 2 Cr. App. R. (S.) 16


The appellant had abused a number of young boys in his charge over a period of 14 years. In 2014 he was sentenced to a 9-year custodial sentence for offences committed during this period. In 2018 he was tried and convicted of a further 17 offences also committed during the same period. The sentencing judge did not consider the 2014 sentence on the basis of the gravity of the 17 offences for which the appellant had been convicted in the 2018 trial and sentenced him to 12 years’ imprisonment.


The Court of Appeal substituted a sentence of 10 years finding that the sentencing judge should consider all the circumstances in deciding, what, if any, impact the previous sentence should have on the new sentence to be passed. The Court laid out a number of relevant factors for sentencing judges to consider, including:


  • How recently the previous sentence was imposed;
  • The similarity of the previous offences;
  • Whether the offences overlapped in terms of the time they were committed;
  • Whether, on the previous occasion, the offender could have “cleaned the slate” by bringing the further offences to the attention of the police bearing in mind they may genuinely have forgotten some of their offending;
  • Whether to take the previous sentence into account would give the offender an undeserved bonus, such as where a technical rule of sentencing has been avoided or where the court has been denied the opportunity to consider totality in terms of dangerousness;
  • The age and health of the offender;
  • Whether, if no account is taken of the previous sentence, the length of the two sentences if passed consecutively would have offended the totality principle.


The Court of Appeal emphasised the importance of totality in the context of consecutive sentences in R v Falder [2018] EWCA Crim 2514 [2019] 1 Cr. App. R. (S.) 46. The appellant had received consecutive determinate sentences amounting to an extended sentence of 38 years, comprising a custodial term of 32 years and an extension period of six years with concurrent determinate sentences. The Court of Appeal noted that consecutive sentences can give rise to confusion about the date of eligibility for release on licence and should, in general, be avoided if possible. In the instant case, the sentencing judge had lost sight of the full extent of overlap between the various categories of offending and so made insufficient allowance for totality. The Court’s view was that the appropriate sentence was an extended sentence of 33 years comprising a custodial term of 25 years and an extension period of eight years.


Reduction of sentence for delay between arrest and charge


In R v Beattie-Milligan [2019] EWCA Crim 2367 the Court of Appeal substituted a sentence of 2 years’ imprisonment for 18 months’ to reflect the mitigation resulting from the unjustified delay of 11 months between arrest and charge. The delay had impacted on the applicant, her mental health and her family.


Reduction for inchoate offences


In Att. Gen’s Reference (R v Zaheer) [2018] EWCA Crim 1708 [2019] 1 Cr. App. R. (S.) 14 the Court substituted a sentence of 5 years and 6 months’ for a sentence of 3 years and 9 months’ for a conviction of attempted rape. Although there should be a reduction to reflect the attempted nature of the crime, the degree of reduction depended on the circumstances including the stage at which the attempt failed and the reason for non-completion. In the instant case, there had been several attempts to penetrate the victim and the offender had only desisted because the victim had successfully frustrated his attempts at penetration meaning a lesser reduction was warranted.



Tayyiba Bajwa is a pupil practicing in criminal defence, inquests and crime-related public law. To read more about Tayyiba, click here.