R v Mohammed Zulfqar

MRS JUSTICE CHEEMA-GRUBB: The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.

On 25 February 2010 at Birmingham Crown Court, Mohammed Zulfqar, then aged 23, was sentenced by His Honour Judge Faber following a guilty plea to attempted rape. He was assessed as dangerous and made subject to a sentence of imprisonment for public protection ("IPP") with a minimum term of three years less one day spent on remand. He was placed on the sex offenders' register for life and required to comply with notification requirements indefinitely.

No appeal was brought at that time. The applicant remained in custody for many years. In July 2025 the Parole Board directed his release, subject to the strict conditions of his life licence.

He now seeks an extension of time of 15 days in which to renew his application for an extension of time of over 14 years for leave to appeal against that sentence. Following refusal of permission by the single judge, the full court referred the application to this court and granted a representation order for junior counsel.

The core submissions are that the judge failed to consider any alternative disposal to IPP such as an extended sentence ("ES") and that the imposition of IPP was wrong in principle.

We can take the facts from the sentencing remarks addressed to the applicant:

The applicant pleaded guilty at the plea and case management hearing. CW described the enduring impact the attempted rape had in a victim personal statement dated 23 January 2010. Before the incident she was an independent woman who enjoyed walking alone, visiting shops and taking her young child out in the pushchair. Since the attack her confidence had been shattered. She was unable to walk anywhere alone and rarely ventured out, even with company. She constantly felt the need to look over her shoulder, fearful of being attacked again. Her reliance on her husband and family increased and she no longer visited her parents as often, nor did she take her child out for walks which has affected her child's relationship with his grandparents. The psychological effects were severe. CW struggled with sleep. Everyday triggers such as the smell of vodka provoked intense distress. The trauma affected her marriage. She expressed ongoing fears about the possibility of her attacker being released, feeling unsafe in her own community and unable to move away. She had developed an aversion to crowds, needing to see everyone around her to feel secure. Counselling had been sought to help her adapt but she remained uncertain about how she would rebuild her life.

The applicant had previous convictions for violence and possession of weapons. The first relevant conviction was in September 2002 for possession of a flick knife. A second such conviction was two months later. In December 2002 for an offence of robbery (described as a bag snatch with a female accomplice) he received a detention and training order of 18 months. In February 2006 he was before Warwick Crown Court where for dangerous driving and other offences he received his first term of detention, an eight month sentence in a young offender institution. In July 2006 at Birmingham Crown Court for three offences of burglary and possessing an imitation firearm and a further offence of having a six-inch bladed kitchen knife, he received a further sentence, a total of four years' detention in a young offender institution. Before the same court in October 2008 he appeared for driving matters and excess alcohol and received 18 months' imprisonment. In January 2009 for an offence of handling stolen goods and driving with excess alcohol he received eight weeks' imprisonment. He was on licence when he committed this offence and had been recalled to prison by the time of sentence.

The pre-sentence report for Mohammed Zulfqar provides a detailed analysis of his background, the circumstances of the offence and his risk profile. The author reviewed his previous convictions, probation records and offender assessment system (OASys) data. In assessing dangerousness the report highlights several factors:

There was no dispute that the starting point for sentence in the relevant guideline was eight years' custody for a first-time offender and after a trial, within a range of six to 11 years. This, despite it being an attempted rape, because it was a sustained attack where the use of a knife was threatened. A review of the sentencing hearing transcript reveals that neither prosecution nor defence counsel made any reference to the possibility of an extended sentence. Defence counsel, then Mr Brook, stated:

The submissions focused on the risk assessment, the seriousness of the offence, the applicant's antecedents and mitigation.

By way of an alternative, Mr Brook argued:

“So any risk that Mr Zulfqar poses can be, in my respectful submission, managed by a determinate sentence. He will be clearly closely supervised on his release and the licence conditions because of this type of offence."

His Honour Judge Faber said:

In passing sentence he said:

There is no reference therefore in the sentencing remarks to the judge considering an extended sentence (“ES”) as an alternative to IPP. The judge did not explain why an extended sentence would not provide adequate protection for the public nor set out any reasoning for rejecting such an option.

In the grounds of appeal settled on 23 April 2024 by Mr Beechey who now represents the applicant, it is stated that he had been advised originally that there were no grounds of appeal. The applicant discovered while in custody in 2023 that the grounds now relied on may exist and new solicitors were instructed in October that year. The transcript of the sentencing hearing having been obtained in March 2024, the grounds were settled expeditiously thereafter.

The need for an extension of time for renewing the application is explained in a letter from the applicant to the Criminal Appeal Office dated 14 January 2025. In it he explains that he did not receive the single judge's decision and paperwork from the prison despite repeated requests to prison officers. The prison claimed not to have received notification of the decision. Having obtained a copy through his solicitors he sought to review his application for leave, although it was late. He asserts that the delay was beyond his control and offers to provide further proof if required. He expresses a hope that these circumstances would be taken into account.

A recent probation report indicated that the applicant was living at approved premises and complying with licence conditions following his release. He has been assessed as posing a medium risk to children and known adults and a high risk to the public but the risk is not currently assessed as imminent. He has completed offence focused work and there have been no further instances of sexual or other offending.

Mr Beechey realistically accepts that the judge was entitled to find the applicant dangerous. He further accepts that a sentence of IPP was in principle available. But he emphasises that such a sentence was not mandatory. He focuses on two grounds for appeal. First, the failure to consider alternatives to IPP. The sentencing judge did not consider any alternative to IPP such as an ES. The judge was required to consider whether an ES could have provided adequate public protection, given amendments to the Criminal Justice Act 2003 which made IPP discretionary rather than mandatory. Furthermore, that it was wrong in principle to impose IPP. The applicant contends that the imposition of IPP was wrong in principle particularly for a young man with no previous sexual offences who had pleaded guilty and had shown some positive response to supervision in the past. The skeleton argument submitted by Mr Beechey refers to decisions of this court which emphasize that IPP is a last resort and that courts must consider all alternatives and the potential for change in young offenders. The pre-sentence report misunderstood the law, as we have explained, and did not address an ES. The judge did not properly consider the applicant's young age and potential for change. Furthermore, other features such as this being his only sexual offence and the applicant's positive response to previous supervision, and the impact of the life-long sex offenders registration are factors, Mr Beechey submits, supporting an ES.

Accordingly, had the judge applied his mind to the possibility of such a disposal and properly assessed the applicant's particular circumstances, including rehabilitation, an extended sentence would have been imposed. Thus making the IPP sentence wrong in principle.

For the respondent Miss Millar defends the original sentence. She observes that the explanation for the delay in mounting an appeal is not detailed. The respondent accepts that both imprisonment for public protection and extended sentence were available to the judge under the law at the relevant time. She submits that although there is no explicit reference to an extended sentence in the sentencing remarks, the sentencing judge was aware of both options and considered them as indicated by an observation at the start of the hearing that he was considering whether a determinate or indeterminate sentence was required.

Furthermore, she submits that the judge's decision to impose IPP was not wrong in principle or manifestly excessive. The judge had carefully considered the facts, the impact on the victim and the applicant's antecedents, including previous violent offences, as well as the fact that he was on licence at the time of the attempted rape.

As is well-known, the original statutory provisions governing sentences of IPP required such sentences to be imposed in certain circumstances. With effect from July 2008 however section 227 of the Criminal Justice Act 2003 was amended. In its amended form it provided that in circumstances where the court found an offender aged 18 or over on conviction to be dangerous and the court was not required to impose a sentence of imprisonment for life, the court may impose a sentence of IPP if either the offender had a previous conviction for a relevant offence or the notional minimum term to be specified was at least two years.

At the time of this applicant's sentencing section 227 also provided that where the court had found an offender aged 18 or over upon conviction to be dangerous and the court was not required to impose a sentence of imprisonment for life, the court may impose an extended sentence of imprisonment if either the offender had a previous conviction for a relevant offence or the appropriate custodial term would be at least four years. An extended sentence would comprise the appropriate custodial term and an extension period comprising a further period of licence "of such length as the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the commissioned by the offender of further specified offences. "Where, as in this case, the offender had been convicted of a specified sexual offence, the maximum extension period was eight years.

On 26 November 2008 this court gave judgment in Attorney General's Reference No 55 of 2008 (R v C and others) [2008] EWCA Crim 2790, (2009) 1 WLR 2158. The Chief Justice, Lord Judge referred to a sentence of imprisonment for public protection as the most draconian sentence available to the court apart from life imprisonment. At paragraph 14 he said:

With all respect to the judge it does not appear that he followed the approach stated by the Chief Justice in that passage, which was not drawn to his attention by counsel. The words which we have quoted from the judge's sentencing remarks are somewhat equivocal. They might mean either that the judge believed the statutory provisions left him with no alternative but to impose a sentence of IPP, or they might mean that the judge was aware that such a sentence was discretionary but concluded that in all the circumstances it was necessary and appropriate. If the judge meant the former he would have been in error. Assuming he meant the latter, he gave no indication of why he took the view that an extended sentence would not provide sufficient protection for the public.

We can find nothing in the facts of the offending and nothing in the pre-sentence report which would provide any sufficient basis to enable the judge to conclude that an ES would not give adequate protection to the public or that the second most draconian sentence was unavoidably necessary.

This omission to engage with the statutory discretion or relevant authorities requiring consideration of alternatives is material and it constitutes an error in principle. In her written skeleton argument counsel for the respondent relies on R v Howlett [2019] EWCA Crim 1224. There the applicant was convicted of multiple offences including blackmail, damaging property, conspiracy to commit grievous bodily harm with intent, causing grievous bodily harm with intent and possession of a bladed article. The most serious offence involved a premeditated group attack in which the applicant stabbed the victim multiple times causing life-threatening injuries.

The sentencing judge imposed an extended sentence of 22 years, 18 years custody plus four years extended licence under section 226A of the Criminal Justice Act 20003 finding Howlett to be a dangerous offender. The applicant challenged the finding of dangerousness and argued that the sentence was excessive and disproportionate compared to a co-defendant. The Court of Appeal upheld the sentencing judge's decision, emphasising that the trial judge is best placed to assess dangerousness having heard the evidence and seen the offender. The applicant's antecedents including previous violent offences and weapon offences supported the finding of dangerousness. The pre-sentence report even if imperfectly reasoned provided ample evidence of risk and the disparity argument was rejected as the applicant's role in history justified a longer sentence than that imposed on a co-defendant.

Although she has not pursued this in her oral argument, in writing the respondent sought to argue that the appellate courts should be slow to overturn a trial judge's assessment of dangerousness, especially where the judge has heard the evidence and considered the offender's history. The case is cited for the principle that "it will be a rare case in which an appellate court which has not conducted the trial and seen the offender would overturn on sentence an exercise of judicial discretion in relation to an assessment of dangerousness."

However, the relevance of Howlett to the present case is limited because this application is not a challenge to the judge's assessment of dangerousness, but to the failure to consider and explain alternatives to IPP as required by the authorities such as the Attorney General's Reference No 55 of 2008. The sentencing judge did not explicitly consider or explain why an ES would not suffice, nor indeed did counsel address the alternative of an ES. The judge's remarks do not show the necessary level of engagement with the statutory discretion or the relevant authorities. While Howlett supports judicial discretion in assessing dangerousness, it does not address what we have identified as the error in issue in this case. Howlett is therefore not determinative of the application and does not undermine the argument that the sentencing judge erred by not considering all available disposals or providing reasons for rejecting an extended sentence.

To avoid injustice, for these reasons, we grant the extensions of time and grant leave to appeal. The sentencing judge was required to consider all available disposals and to explain why an IPP was necessary, particularly in light of the applicant's age of 22 at the time of the offence, his potential for change and the possibility of managing risk through an extended sentence and other protective measures.

The facts of the offending while very serious do not provide a sufficient basis to conclude that an extended sentence would not provide adequate protection for the public. The features we have mentioned are significant factors in this respect.

The appeal is allowed. We quash the sentence of imprisonment for public protection and substitute for it an extended sentence comprising a custodial term of six years less one day, and an extension period of five years. The applicant remains subject to the sex offenders' register for life. These sentences take effect as at the date of the original sentencing.