Extended Sentences by the Back Door? R v Fruen and DS [2016] EWCA Crim 561
| Author | Gavin A. Doig |
| DOI | 10.1177/0022018316667119 |
| Published date | 01 October 2016 |
| Date | 01 October 2016 |
| Subject Matter | Court of Appeal |
I have described how G became progressively more involved so that, in the end, he was alone with A and it
was he who marked ‘YES’ on the paper drawn up by the guardi an. The question of quite how it was
appropriate for the key worker to be present at all during the process of taking A’s instructions, let alone
taking over that process, was raised during the appeal hearing but it was not possible to know how the
guardian would respond to the court’s preliminary view that it was wholly wrong for the guardian to allow
such a process to take place in this manner and in her absence with no protection for A or his rights. (at [92])
His Lordship was highly critical of the judge’s failure to respect A’s entitlement to legal professional
privilege and to safeguard his Article 6 rights. He concluded that, with regard to the decision to order the
guardian to file a statement, ‘[t]hat is a significant and highly unusual order to make and, irrespective of
the position of the parties, the judge ought to have questioned the basis of the proposed order and been
aware of the need to protect A’s Art 6 rights and his entitlement to legal professional privilege’ (at [97]).
The decision in the present case highlights numerous failures in process and analysis by the judge at
first instance, and Lord Justice McFarlane’s criticism is scathing. The decision emphasises the impor-
tance of both the ABE guidance and the guidance in Re W, as well as more fundamental requirements
which should have been followed with regard to Article 6 and legal professional privilege. His Lordship
took the opportunity to place a marker with regard to the use of child witnesses, expressing concern ‘that
the previous culture and practice of the family courts remains largely unchanged, with the previous
presumption against children giving evidence remaining intact’ (at [56]). Instead his Lordship has used
this as an opportunity to remind the family courts that ‘the court undertaking a Re W determination will
need to engage in a relatively full and sophisticated evaluation of the relevant factors; simply paying lip-
service to Re W is not acceptable’ (at [60]).
Zach Leggett
Extended Sentences by the Back Door?
RvFruen and DS [2016] EWCA Crim 561
In these conjoined appeals the appellants had been convicted of sexual offences which brought into play
s. 236A of the Criminal Justice Act 2003 (‘the Act’). This case note addresses the impact of that section
on the appeals and generally.
Section 236A introduced a new form of custodialsentence for ‘certain offendersof particular concern’.
It came into force on 13 April2015 and applies to all sentences for relevant offences passedafter that date,
regardlessof the date of the commission of the offence.Its provisions are mandatory.The section applies to
any person who commits an offence listed in sched. 18A of the Act, who was aged 18 or over when the
offence was committed, and who is not being sentenced to life imprisonment or an extended sentence.
Section 236A(2) provides that if the court imposes a sentence of imprisonment for the offence,
....the term of the sentence must be equal to the aggregate of –
the appropriate custodial term, and
a further period of 1 year for which the offender is to be subject to a licence.
The aggregate of the custodial term and the additional licence period must not exceed the statutory
maximum for the offence.
290 The Journal of Criminal Law 80(5)
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