R v Haroon Ahmed

On 11 September 2008, in the Crown Court at Derby, the applicant, then aged 20, was sentenced pursuant to his previous plea of guilty to one count of robbery, contrary to s.8 Theft Act 1968. The sentence was of imprisonment for public protection ("IPP") with a minimum term of 2 ½ years. In view of his age, if such an indeterminate sentence was to be imposed, it should have been detention for public protection ("DPP"). By this application, which the Registrar has referred to the full court, the applicant applies for an extension of time of 5755 days in which to apply for leave to appeal against his sentence. He contends that the IPP sentence was manifestly excessive or wrong in principle because the Judge wrongly assessed him to meet the test of dangerousness; alternatively, that appropriate protection for the public would have been achieved by the imposition of an extended determinate sentence.

On the evening of 26 January 2008, the manager of a service station in Derby was alone on duty when the applicant and his co-defendant, Shaun King, entered the shop with their hoods up and their coats pulled up in an attempt to disguise themselves. The manager told them to take the covers off their faces. They did not say anything but King jumped over the counter. He was holding a large knife in his hand. He then pulled the manager's head down onto the counter and pushed the knife very close to him. He said: "Open the till or I'll cut your neck. I'll stab you". The manager was very frightened and opened the till. King took between £400 and £500 from the till and the applicant held out a plastic bag into which the money was placed. The applicant then told King to take some cigarettes as well, so King dragged the manager to the cigarette display and told him to put cigarettes into the bag. About 40 packets were placed into the bag. Before they ran out of the shop, King grabbed two mobile phones that were on the counter. The manager contacted the police who traced the applicant and King to a nearby address, where they were arrested. The applicant was in possession of one of the mobile phones that had been taken in the robbery. When the officer told King he was under arrest, King punched the officer in the face and attempted to head-butt him. The applicant made no comment in interview. King put forward a prepared statement in which he denied any knowledge of the robbery.

The applicant and King were each charged with robbery (Count 1). King was charged with common assault of the officer (Count 2). In due course they each pleaded guilty to the relevant offences. The applicant was aged 20 at the date of sentence; King was aged 21.

At the time of sentence the applicant had convictions for 37 offences, committed between 2001 and 2007. His early offences included criminal damage, attempted dwelling burglary, escaping from custody, theft, non-dwelling burglary, breach of court orders and common assault. In 2005 he was sentenced to an 18 month detention and training order for dwelling burglary. In 2006 he was sentenced to a 12 month detention and training order for two offences of criminal damage, two offences of battery and breach of a supervision requirement. Also in 2006 he was sentenced to a 9 month conditional discharge for threatening behaviour; and to a 4 month detention and training order for non-dwelling burglary. In March 2007 he was sentenced to 12 months' detention in a young offender institution for two offences of non-dwelling burglary and one offence of criminal damage. In September 2007 he received a 6 month custodial term, suspended for two years, for non-dwelling burglary.

The pre-sentence report dated 15 May 2008 noted that the subject offence had been committed on the day after the applicant's release from custody and while subject to a period of supervision on licence. The applicant stated that he had been into Derby city centre with King. On their way back home he had asked King if he wanted to commit a robbery, to which King agreed. The applicant stated that they had found a knife in an alleyway and decided to use it. He had committed the offence because he wanted to return to custody, as he felt very isolated in the community. The author of the report observed that the gravity of his offending was increasing and that if intensive interventions were not put into place it was highly likely that he would go on to commit further serious offences. The applicant gave a history of glue-sniffing and of cannabis and alcohol abuse. He admitted to becoming more aggressive and having more violent thoughts when under the influence of alcohol. The author noted from previous probation records that he did not consider the consequences of his actions and was immature.

The author's assessment was that the applicant's risk of re-offending was high; and that given the "history of violent offending" and the use of a weapon in the subject offence, there were concerns regarding his risk of harm to the public. In discussing sentencing options, the applicant had stated that he would not comply with any community orders. In the conclusion of the report, reference was made to the court's powers under the Criminal Justice Act 2003 to impose an indeterminate sentence or the "maximum penalty" of a life sentence if the court was of the opinion that the applicant presented a "significant risk of harm". The author concluded by expressing great concerns regarding the potential harm that the applicant could pose in the future and recommended the obtaining of a full psychological assessment. It is to be noted that the report pre-dated by two months the amendment of the IPP provisions, with effect from 14 July 2008, by the Criminal Justice and Immigration Act 2008.

The Court obtained the report of a Chartered Clinical Psychologist, Dr Alice Levee, dated 9 July 2008. The report noted that a sentence for public protection was under consideration and that the instructions were to consider the applicant's level of dangerousness and in particular whether he posed a significant risk of serious harm by the commission of further offences.

From the interview with the applicant, Dr Levee recorded that he described auditory hallucinations of a command nature. He stated that his dead cousin had been communicating with him since March 2007; that the voice was worse when he felt stressed; and that the voice had told him to hurt people. The report continues: "He described how in February or March 2008, he assaulted, tied up, stripped naked, slashed, burnt, punched in the face, shaved the eyebrows and put salt in the wounds of another inmate, for no other reason than responding to the instructions from his voice." Further, he said that he had committed the subject offence because the voice of his cousin told him to rob the petrol station so that he could financially support his mother.

The assessment summary in the report stated that he was exhibiting several characteristics consistent with an antisocial personality disorder. Dr Levee's clinical opinion was that he would benefit from a psychiatric assessment to further explore the presence of command auditory hallucinations. It was unlikely that he was malingering. Auditory hallucinations were consistent with personality disorders and high levels of stress. As to dangerousness under the Criminal Justice Act 2003, there was evidence of antisocial behaviour and "Therefore, his risk of reoffending is relatively high".

A psychiatric report was commissioned. In the meantime, an addendum to the pre-sentence report, dated 10 July 2008, was prepared. This considered the psychological report. The author suggested that the Court might wish to further adjourn the sentencing hearing listed for the following day (11 July) in order to obtain a psychiatric report. The report then observed: "Providing that Mr Ahmed were sentenced to a custodial sentence of over 12 months, whether this be a standard determinate sentence or an indeterminate sentence of imprisonment for public protection, Mr Ahmed would be allocated an Offender Manager who would manage the case throughout the custodial and community elements of the sentence." This report also preceded the amendment of the IPP sentencing provisions, by four days.

At the hearing on 11 July, the Court ordered an adjournment so as to obtain the psychiatric report. The transcript of the final hearing on 11 September confirms that, at the hearing on 11 July, the Judge had stated that he intended to pass an IPP sentence on the applicant, but not on King. At that stage, in July 2008, there was no option to impose an extended determinate sentence.

The report of Dr Eric Mendelson, Consultant Forensic Psychiatrist, dated 20 August 2008, described his difficulties in obtaining the full attention of, or rapport with, the applicant during the consultation. He seemed disinterested and distracted himself by looking away and otherwise made known his displeasure at his persistent enquiries. Dr Mendelson noted from the medical records the ongoing concerns about the applicant's mental health and the reports of hearing voices. The notes included alarming references to him having taken another young offender hostage soon after his remand at a young offender institution; and that he had confided that he had tortured the other youngster by burning him, cutting him, salting his wounds and humiliating him by making him strip, drink shampoo and crawl about like a dog. There were also references to him concealing a sharpened knife and setting a fire in his cell.

Dr Mendelson described the subject offending as appearing to be a major escalation. His attempts to discuss the auditory hallucinations were unsuccessful as the applicant became angry and demanded to leave. In consequence he was unable to complete a satisfactory psychiatric assessment. It seemed that the applicant might well have developed some form of mental illness which was causing persistent auditory hallucinations. However his symptoms were not typical of mental illness. There could be no doubt that he could be readily considered to have a dissocial personality disorder. As to future risk, Dr Mendelson could not argue against the conclusions of the pre-sentence report and of the psychologist. Dr Mendelson stated that the applicant "must be considered at significant risk of causing the public serious harm through further specified offences". If he could be persuaded to cooperate with a further psychiatric assessment, he would be willing to see him again in an attempt to gain a better understanding of his mental health.

The adjourned sentencing hearing took place on 11 September 2008. Before turning to the Judge's sentencing remarks, we consider the relevant sentencing provisions at that date; together with discussion of the amended provisions in subsequent decisions of this Court.

By 11 September 2008, the original statutory provisions in the Criminal Justice Act 2003 relating to dangerousness and the imposition of IPPs had been amended with effect from 14 July 2008 by the Criminal Justice and Immigration Act 2008. Under the unamended provisions, in qualifying cases, a finding of dangerousness left the court with no option other than to impose either a discretionary life sentence or an IPP. An extended determinate sentence was not available. By virtue of the amendment in 2008, a finding of dangerousness in a qualifying case allowed the court to adopt one of four options, namely a discretionary life sentence; a sentence of IPP (s.225); an extended determinate sentence (s.227); or a simple determinate sentence.

On 26 November 2008, this Court handed down its decision in Attorney-General's Reference (No 55 of 2008) [2008] EWCA Crim 2790; [2008] 2 Cr. App. R. (S.) 22. Lord Judge CJ at [14] said that in the exercise of the court's discretion, or more accurately of its judgment, as to whether a sentence of IPP should be passed when the necessary criteria are established, the court was entitled to, and indeed should, have in mind all the alternative and cumulative methods of providing the necessary public protection against the risk posed by the individual offender. He described IPP as the most draconian sentence available to the court after a discretionary life sentence. At [16], he stated that, apart from a discretionary life sentence, IPP was the last resort. At [20], he continued: "In short, therefore, if an extended sentence, with if required the additional support of other orders, can achieve appropriate public protection against the risk posed by the individual offender, the extended sentence rather than imprisonment for public protection should be ordered. That is a fact specific decision."

Further, in R v Wilkinson [2009] EWCA Crim 1925; [2010] 1 Cr. App. R. (S.) 100, Lord Judge CJ, whilst noting certain differences between an IPP and a sentence of life imprisonment, observed at [16]: "For all that, it is well understood that an IPP has a great deal in common with a life sentence: 'Its justification is the protection of the public. It is indeterminate. Release depends on the judgment of the Parole Board as to the risk which the prisoner presents. The court must fix a minimum term before which release cannot be considered, calculated by reference to the hypothetical determinate term which would have been called for if the indeterminate sentence were not being passed. All those features it shares with a discretionary life sentence."

The common features of sentences of life imprisonment and of IPP had been noted before, in the context of the pre-amendment regime. Thus in R v Lang [2005] EWCA Crim 2864; [2005] 2 Cr. App. R. (S.) 3, Rose LJ said at [8]: "For all practical purposes, imprisonment and detention for public protection are exactly the same as a life sentence…"

By the Legal Aid, Sentencing and Punishment of Offenders Act 2012, Parliament abolished sentences of IPP and DPP for all offenders convicted after 3 December 2012. That did not affect those, like this applicant, who were convicted and sentenced before that date. In R v Roberts [2016] EWCA Crim 71; [2016] 2 Cr. App. R. (S.) 14, this Court made clear that a change of this nature in penal policy does not entitle this Court to reduce sentences in the light of the subsequent regime, and that where it was properly open to a judge to pass an IPP sentence in accordance with the law then in force, this Court would not revisit the sentence. Thus the Court would not intervene "… where the Judge has followed the provisions of the CJA 2003 as interpreted by the decisions of this Court and passed a sentence of IPP in circumstances where it was properly open to the judge to pass such a sentence…": [42].

Roberts also reaffirmed the general principles that any application for an extension of time is within the discretion of the court which always requires reasons to be provided as to why the court should grant an extension [36]; and that in making its decision the court will consider all the material circumstances, including the explanation for the delay and the cogency of the reasons in seeking an extension when determining whether it is in the interests of justice to do so [37].

In his sentencing remarks, the Judge referred to this most serious offence of robbery which had taken place in the evening at a service station in a fairly isolated situation. He rejected the applicant's claim that there had been little planning and that he had found the carving knife in the street. It was a planned robbery, knowing that the man was alone and unable to defend himself against the two of them with a knife. The applicant had instigated, encouraged and organised the offence; and had given King the knife, which had then been held to the victim's throat and had caused a small slit in his T-shirt. Although the victim had only sustained a slight nick to his throat, he had been put in great fear of serious injury. The Judge considered the relevant sentencing guideline for a determinate sentence and identified the aggravating factors as: the planning; the pulling up of clothes to effect a disguise; the commission of the offence at night; and a vulnerable and targeted victim.

Turning to the issue of dangerousness, the Judge took account of the applicant's bad record but noted that there was nothing as serious as the index offence; and that there was "nothing in relation to serious acts of violence". As to the psychiatric report, he took into account the information, "which your counsel confirms is the truth", that the applicant had tortured another youngster in the way described. The Judge concluded that there was a significant risk of serious harm to members of the public by the applicant committing further specified offences. The Judge then stated: "I think it is appropriate in the circumstances to make a sentence of imprisonment for public protection for this reason". Having identified the appropriate notional determinate sentence as 5 years' imprisonment, the Judge imposed an IPP with a minimum term of 2 ½ years, less the 228 days that the applicant had spent on remand. For breach of a suspended sentence of 6 months' imprisonment imposed in September 2007, the Judge activated the sentence in full, to be served concurrently.

As to King, the judge concluded that he did not meet the test of dangerousness. For the robbery, he imposed a determinate sentence of 5 years' detention.

As to the reasons for the delay, the response from the applicant's advocate at the time was that there were no grounds to appeal against the sentence. The applicant had accepted that advice and never sought to lodge an appeal. Although he subsequently received short sentences of imprisonment for offences committed while in prison, he was effectively in custody for 12 years before he was released. Following the instruction of Counsel, there had been some delays in progressing the matter on his behalf. This included periods of uncertainty as to his whereabouts in December 2024, January 2025 and May 2025, which had a consequential effect on the ability to take instructions from him.

Turning to the substance of the appeal and the factual background, Ms Douglas states that the account in Dr Levee's report of the applicant describing an incident in February or March 2008 when he assaulted a fellow prisoner in response to auditory hallucinations was inaccurate. She states that the applicant instructs that he was in fact only describing to Dr Levee the reason for his being in the segregation unit at the time of their interview. As to the account in Dr Mendelson's report of a torturing incident, Ms Douglas emphasises that this was something that Dr Mendelson read in the notes, rather than anything said to him by the applicant.

The first ground of appeal is that the Judge was wrong to make a finding of dangerousness. Ms Douglas submits that none of the applicant's previous convictions was for serious violence or could be considered to be offences carrying a risk of serious harm to the public. There was no basis for the observation in the pre-sentence report that he had a "history of violent offending". Indeed the Judge had observed that the previous convictions disclosed "nothing in relation to serious acts of violence". There were no specified offences contained in his record.

As to the subject offence, whilst it was extremely serious, no serious harm was caused to the victim. The fact that the Judge did not consider that a sentence of IPP was necessary for King, who had held the knife to the victim's throat and who had a previous conviction for a specified offence, was telling as to how he viewed that offence.

As to future risk, the pre-sentence report had not concluded that the applicant posed a risk of causing serious harm, as required by section 229; nor had the psychologist’s report. As to the psychiatric report, the Judge had been wrong to give weight to the unproven allegation based on a reference in the medical notes that the applicant had tortured another youngster. Further, the applicant's instructions were that his Counsel had confirmed to the Judge that the allegation had been made, but did not state that the allegation had been admitted by the applicant. Nor had it led to any charge and conviction. It was understood that a "No Further Action" decision had been taken, albeit this postdated the sentencing hearing.

Further, whilst the Judge had referred to the applicant's young age, describing him as a very young man when applying the sentencing guidelines on robbery, he had failed to consider the relevance of age to the question of dangerousness. The guidance in R v Lang and the sentencing guidelines on sentencing children and young people suggested that great caution needed to be taken before treating offences committed by young people as an indication of future risk.

In the alternative, if the Judge was entitled to reach a finding of dangerousness, he was wrong to conclude that only an indeterminate sentence would manage the risk posed. As the authorities made clear, it is only if it can be shown that an extended determinate sentence would not adequately protect the public that an IPP should be imposed. Apart from a life sentence of imprisonment, an IPP was the last resort when dealing with a dangerous offender.

By contrast, the Judge's sentencing remarks made no reference to consideration of an extended determinate sentence following his finding of dangerousness. Taken together with the timeline whereby the option of such a sentence would not have been available at the time of the hearings before 14 July 2008, together with the observation of the Judge on 11 July that he would be imposing a sentence of IPP in respect of the applicant but not King¸ a question arose as to whether the Judge was aware of that option at the hearing on 11 September 2008.

In accordance with the McCook procedure, questions had been submitted to the applicant's advocate at the hearing. These included whether there had been discussion between the parties and/or submissions to the Judge about the option of an extended sentence. His answer was that he could not recall whether the issue of availability of extended sentences was discussed. There was no such suggestion in either the original or addendum pre-sentence reports, each of which predated the amendment of the relevant statutory provisions.

Whilst acknowledging that the Judge would not have had the benefit of the guidance given by Lord Judge CJ in Attorney General’s Reference (No 55 of 2008), handed down on 26 November 2008, the principles stated therein ought to have been apparent from the modified legislation.

Ms Douglas submits that the applicant's offending was not of such a nature and prolificity to make it unlikely that a lengthy period in custody, followed by a lengthy period of supervision would not adequately manage the risk. On this alternative argument, the Judge should have ordered an extended determinate sentence, with a custodial term of 5 years and an appropriate extended licence period.

As to the finding of dangerousness, Counsel for the Crown, Mr William Davis submits, first, that the absence of serious harm to the victim of the robbery did not preclude such a finding: see e.g. the observations of Sir Igor Judge P (as he then was) in R v Johnson [2007] 1 WLR 585. However the Judge would have been entitled to make that finding on the facts which he found on the subject offence, planned and instigated by the applicant using a carving knife with a blade 6-9 inches in length. It was purely fortuitous that the victim had suffered only minor injury.

The Judge was right to consider the information in the reports of Dr Levee and Dr Mendelson about the alleged serious assault on another prisoner in February or March 2008. He was not limited to incidents proved by convictions or evidence that would have been admissible at trial: R v Considine [2008] 1 WLR 414. There was ample time between the dates of those reports and the final hearing on 11 September to consider their contents and instruct Counsel appropriately. If the Judge had misunderstood the position in his sentencing remarks, Counsel could have corrected him. He did not do so.

There was ample other information in the pre-sentence report and the two medical reports to support the finding of dangerousness. All in all, there was no basis to interfere with the Judge's assessment.

Mr Davis submitted that, whilst there was no reference in either the prosecution opening or the sentencing remarks to the amendments that came into force on 14 July 2008, there was no reason to conclude that these had been overlooked by the prosecution or by the Judge. The co-accused King had a previous conviction for affray (in 2005), which was a specified violent offence: CJA 2003, Schedule 15, paragraph 46. Under the pre-amendment provisions, the statutory assumption of dangerousness (s.229(3)) would have applied to King. Accordingly, since no such assumption had been made in his case, they must have been aware of the amendments.

The Judge having found that the applicant met the test of dangerousness and the condition of a notional minimum term of at least two years being satisfied (s.225(3B)), it was open to him to impose a DPP under the amended provisions. The Judge did not have the benefit of the advice subsequently given in November 2008 by the Court of Appeal in Attorney General’s Reference (No 55 of 2008), which might explain why he did not give reasons for his decision to impose an IPP, rather than an extended determinate sentence.

However, on the material before him, the Judge was fully entitled to take the course which he did. Mr Davis noted the applicant’s repeated offending and the sentences which had not deterred him; and the fact that the subject offence had taken place the day after the applicant was released and whilst subject to licence. The reports before the Court indicated that the applicant had a personality disorder. He complained of symptoms that could have indicated mental illness. However he had resisted Dr Mendelson's attempt to carry out an assessment. The applicant told Dr Mendelson that he would be willing to comply with further medication in prison, but Dr Mendelson considered that he was very unlikely to engage with any other therapy in hospital. His prospects were poor. Based on that evidence, it was impossible for the Judge to assess when any risks posed by the applicant were likely to be addressed; or therefore whether an extended sentence would provide appropriate protection for the risks which he posed to the public. Following the imposition of the IPP, the applicant had indeed been advised by his legal team that there were no arguable grounds of appeal.

Skilfully and forcefully as the argument was presented, we are quite unpersuaded that the Judge erred in his assessment that the applicant met the test of dangerousness, or erred in his overall approach to that issue. The subject offence had been organised and instigated by the applicant; it had involved the use of a large knife which was held to the throat of the victim. Although the injury was very limited, it might very well have been otherwise if the victim had not been compliant in the face of a terrifying threat. Whilst the applicant's very substantial record of offending did not involve serious acts of violence, this further offence reflected an escalation in his offending.

The pre-sentence reports and the expert medical reports then showed a very troubling picture. This included the account which the applicant gave to Dr Levee of his violence on another inmate in February or March 2008; and which was also referred to in the medical notes before Dr Mendelson. There is no basis to doubt the record in the sentencing remarks to the effect that Counsel for the applicant had confirmed the truth of the account which the applicant had given. If that had been incorrect, the transcript would have recorded an intervention and correction by Counsel. The Judge was entitled to take that matter into account; together with the applicant's unwillingness to co-operate in the psychiatric assessment and Dr Mendelson's conclusion that there was a significant risk of the applicant causing serious harm by further specified offences.

The effect of the adjournment of the sentencing hearing for the very proper reason of obtaining a psychiatric report was that the IPP provisions had changed by the date of final disposal. Unlike the previous position, the Court now had the option of imposing an extended determinate sentence. It may have been the case that the Judge did not have the full assistance on the effect of the amended provisions which he should have received. That said, we agree that the sentence imposed on the co-accused King is consistent with the court's knowledge and understanding of the new provisions.

True it is that the Judge did not have the benefit of the guidance which the Court of Appeal was to hand down on 26 November 2008. Further the pre-sentence report and its addendum each pre-dated the amendment of the legislation. However the new provisions now allowed for the imposition of an extended sentence and it was inherently necessary for that option to be considered. Further, the Judge would have been aware of the observations in Lang as to the similarities of a sentence of life imprisonment and an IPP; and also of the need for reasons to be given for not imposing an extended sentence, where that option was available.

In the absence of any reference in the sentencing remarks to the option of an extended determinate sentence, and having regard to the Judge's indication which he had given at the earlier hearing on 11 July, we draw the inference that this option was not considered. We consider that this option should have been expressly considered; and therefore conclude that (subject to satisfaction on the reasons for delay) the Court should revisit the sentence: see Roberts at [42].

Having considered all the material which was before the Judge, we respectfully conclude that the imposition of the sentence of second last resort on this young applicant was not justified. In our judgment the necessary protection for the public would have been sufficiently achieved by an extended determinate sentence totalling 10 years, comprising a custodial term of 5 years and an extended licence period of 5 years.

Having regard to the substantive merits of the appeal and the explanation for the delay, we are also satisfied that the necessary very long extension of time should be granted.

Accordingly, we grant the application for the extension of time; grant leave to appeal; and allow the appeal to the extent of quashing the order of an IPP and substituting the extended determinate sentence which we have indicated.