Sentence Reduced and Restraining Order Quashed by Court of Appeal

Following leave on all three grounds from the Single Judge, Sophia successfully appealed against the sentence and indefinite restraining order imposed on her client (“FB”) following his conviction for rape before Lord Justice Holgate, Mr Justice Soole and the Honorary Recorder of Luton sitting in the Court of Appeal (Criminal Division).

In May 2025, FB was convicted and sentenced to 7 years’ imprisonment and made subject to an indefinite restraining order. The offence occurred in 2019 when FB met the 17-year-old Victim whilst she was walking home from a party. They later met up for FB to take her shopping for her 18th birthday. On that occasion, he took her to a pre-booked hotel room, provided her with wine and blocked her from leaving when she became uncomfortable, captured on CCTV. He then carried her into the bedroom and raped her. The victim was again seen on CCTV running from the hotel room in a state of undress and distress. She reported him immediately to police but later issued a withdrawal statement. In 2020, the Victim changed her mind and wished to support the prosecution. FB was interviewed and raised the defence of consent. It was not until 2024 that he was charged.

The grounds of appeal against sentence focused on the sentencing judge’s decision to:

1. take a starting point at the very top of the Harm 3/Culpability B range on the basis of disparity in age and/or exploitation of the Victim’s naivety, which were not included in the exhaustive list of culpability factors in the sentencing guidelines;
2. make a finding of elevated harm at the upper end of the Harm 3 range and then to offset FB’s mitigation against that same harm so that no downward adjustment was made for mitigation;
3. conclude that any restraining order, let alone an indefinite restraining order, was necessary in this case.

The Court of Appeal allowed the appeal in full, reducing the term of imprisonment to 6 years and quashing the restraining order altogether. In doing so, the Court concluded that, allowing for mitigation, a 7-year sentence would have involved a notional 8-year starting point, which was manifestly excessive, such that the appropriate sentence should have been 6 years’ imprisonment, notwithstanding the aggravating factors and elevated harm. Importantly, the Full Court placed weight on the “exceptional and unexplained delay” through no fault of FB, which the sentencing judge had refused to take into account in the lower court and, indeed, sought to lay blame with FB.

In respect of the restraining order, the Full Court reiterated the importance of taking an evidence-based approach when applying the statutory test and the need for a Court to explain why such an order was necessary. The Court observed that, whilst a restraining order may give the Victim “peace of mind”, that was insufficient to meet the statutory test. The Court emphasised the twin test of necessity and proportionality on whether to make the order and to the terms of the order and its duration, noting that such an order created “deeply binding prohibitions” amounting to a criminal offence if breached. In FB’s case, the Full Court concluded that the sentencing judge had failed to answer Miss Dower’s submissions when resisting the application. This resulted in the restraining order being quashed in its entirety.

Sophia Dower was instructed by John Kinlough of EBR Attridge.