Court of Appeal Examines Sentencing Errors and Dangerousness in R v Colin Barker Case: Key Issues Explored

Introduction

The case of R v Colin Barker ([2023] EWCA Crim 1633) before the Court of Appeal (Criminal Division) presents an examination of sentencing errors and the principles related to dangerousness and extended sentences. The judgment revisits the original sentencing of Colin Barker, which involved sentences of detention for public protection for sexual offences against children, and the subsequent application for appeal following a substantive delay.

Key Facts

Colin Barker was convicted in the Crown Court at Croydon in 2009 for several offences of sexual activity with child family members and making indecent photographs of a child. He was consequently handed a sentence of detention for public protection with a minimum term of four years. Approximately 14 years later, Barker sought leave to appeal on the grounds that the sentences were erroneously imposed.

The appeal dealt with the nature of the offences, the application of the custody threshold and the labelling of the sentence type. It was also notable for the length of time that had elapsed since the original sentence was imposed.

Legal Principles

Sentencing for Public Protection

A key aspect of this case concerned the imposition of sentences of detention (or imprisonment) for public protection under section 225/226 of the Criminal Justice Act 2003. The court discussed that while imprisonment for public protection was available, it was not mandatory, contrary to the position during the original sentencing. The judge at the time may have erred either in understanding the discretionary nature of such a sentence or in adequately considering whether an extended sentence could achieve the same ends of public protection.

The Doctrine of Dangerousness

The case brought into focus the doctrine of dangerousness as defined for sentencing purposes and its prerequisites. It was accepted that the offender was appropriately classified as dangerous but queried whether an extended sentence under section 227 of the Criminal Justice Act 2003 could sufficiently protect the public.

This relates back to the principle elucidated in Attorney General’s Reference No 55 of 2008 (R v C and Others), which set out that imprisonment for public protection should only be imposed when no other sentencing package could provide adequate public protection.

Extended Sentences

The appeal considered whether an extended sentence could have been a more appropriate alternative to providing necessary public protection against the risk raised by the individual offender. Extended sentences consist of an appropriate custodial term and an additional period for license, as highlighted in Attorney General’s Reference No 55 of 2008.

Making Indecent Photographs & Sexual Offence Guidelines

In addressing the legality of the sentence’s length for the crimes of making indecent photographs and sexual offences, the court referred to the Sentencing Guidelines Council’s guidelines effective at the time of the sentencing.

Outcomes

The Court of Appeal, having considered the above principles and the explanations for the considerable delay in bringing the appeal, granted the extension of time and leave to appeal and allowed the appeal. The original sentences of detention for public protection were quashed, and substituted with extended sentences comprising custodial terms of five years and extension periods of five years, taking effect from the date of the original sentencing.

Conclusion

The case of R v Colin Barker has brought into relief several crucial tenets of sentencing practice. The Court of Appeal scrutinized the application of imprisonment for public protection, the assessment of dangerousness, and the viability of extended sentences. The judgement reasserted that even where a sentence of imprisonment for public protection is discretionary, courts must thoroughly consider whether less severe alternatives like extended sentences could sufficiently serve the purpose of protecting the public. This case serves as an exemplar for revisiting sentencing decisions, and underscores the importance of accurately interpreting statutory provisions to avoid miscarriages of justice.