[2025] EWCA Crim 1256

As this court observed in R v Allen [2019] EWCA Crim 1772, at [17]:

"The decision to make a finding on the issue of dangerousness without a pre-sentence report is one which requires a careful justification. Usually the Crown Court will require the assistance of such a report. This is the statutory position as set out in section 156(3) of the Criminal Justice Act 2003 [now section 30 of the Sentencing Act 2020] and that is a provision which should be faithfully applied. We consider that the decision of the judge in this case on that issue is justifiable because he had been the trial judge and had been able to form an impression of the applicant during his trial which, together with the facts of the case itself, gave him a proper basis for making that finding. Many judges would, nevertheless, have obtained a report dealing with dangerousness. This will usually be the better course. The obtaining of a pre-sentence report does, of course, involve cost, burden to the Probation Service and sometimes delay in concluding the case. These things are justified in such cases where very long extended sentences are under consideration, which will require a decision of the Parole Board in due course."

We note that in that case the defendant, aged 22, had received an extended sentence of 16 years comprising a custodial term of 13 years and an extended period of licence of 3 years. The principal offence was section 18 wounding with intent. There were other offences as well but he had only one relevant previous conviction for violence, for affray. For that reason it was clearly a very different case from this case.

In the circumstances of the present case, we consider that the judge was justified in not obtaining a pre-sentence report.

As for the application to adduce fresh evidence from the psychiatrist, Dr Martyn, the requirements of section 23 of the Criminal Appeal Act 1968 apply just as much to a sentence appeal as to a conviction appeal. Before receiving fresh evidence this Court would have to have regard to: whether the evidence appears capable of belief; whether it appears that the evidence may afford any ground for allowing the appeal; whether the evidence would have been admissible in the proceedings in the court below; and whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.

We have no report from Dr Martyn, only his notes. We have no opinion from him, for example, as to whether the diagnosis of ADHD which has been made since the sentence was imposed could have impacted upon the assessment of the applicant's culpability for the offences in question, or could have affected the assessment of whether there was a significant risk of serious harm to the public from further specified offences committed by the applicant. Only if we were persuaded that there was evidence from Dr Martyn which could have affected those assessments by the judge could it be said that such evidence would be capable of affording any ground for allowing the appeal.

We agree with the careful analysis by the single judge in his reasons for refusing leave to appeal and the necessary extension of time. The single judge said:

"As far as the finding of dangerousness is concerned, whilst it will usually be the better course for a judge to obtain a pre-sentence report in relation to dangerousness (see Allen...) the Judge was entitled to take a view on the admitted facts of the case which she was considering and your record of offending. Moreover, there is nothing in the evidence which you have presented which suggests that her view was wrong. On the contrary, your own case appears to be that you were impulsive and the facts of the aggravated burglaries, in the context of your overall offending, support a finding of dangerousness...

As far as the 'fresh' medical evidence is concerned, the notes of Dr Martyn’s assessment do not establish an arguable case that your sentence was manifestly excessive on the basis that you were materially less culpable for your actions or, more particularly, that a five year extension period was wrong in principle or manifestly excessive. On the contrary, the notes indicate likely ADHD as a child and as an adult but they do not specifically address the position as at the time of your offences or, more importantly, the impact of your likely conditions on your behaviour at that point in terms of whether they reduced your culpability and if so to what extent. They also indicate that drug and alcohol abuse may have played a part in you record of offending. On one view, your mental health and other medical history suggest that a longer period of supervision, as ordered by the Judge, is desirable in your case."

We respectfully agree with that analysis. We are therefore satisfied that there is no arguable merit in the proposed appeal.

We understand the applicant's anxiety to place before this Court evidence that a long-standing problem of ADHD is now being addressed by medication and treatment. That positive development may be of assistance to the Parole Board in due course when it comes to consider at what stage the applicant should be released on licence under this extended sentence.

However, for the reasons we have explained it affords no arguable ground of appeal and leave to appeal is refused. As there is no merit in the proposed appeal, we also refuse the extension of time.

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