R v Lionel Rae Fruen

Consideration of s.236A of the CJA 2003, the new “Special custodial sentence for certain offenders of particular concern”.

s.236A came into force on 13th April 2015. It applies to sentences imposed on or after that date, irrespective of whether the offence was committed before or after that date.

It applies to someone convicted of an offence listed in schedule 18A to the Act (certain terrorism and sexual offences, inchoate offences and abolished offences), who was: aged 18 or over when the offence was committed; and is not sentenced to life imprisonment or an extended sentence under section 226A.

Where, for a schedule 18A offence, the court has not sentenced the offender to life imprisonment or an extended sentence under section 226A, it must pass a sentence under 236A.

Under s.236A (2), 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 license.

Passing an ordinary determinate sentence for a qualifying offence is no longer an option.

A defendant subject to s.236A will be considered for release by the Probation Board at the halfway point of his sentence, not two-thirds as under the new extended sentence s.226A. However, prisoners under s.236A are not automatically released at the halfway point, but in accordance with s.224A (4) (b) are released only when the parole board is satisfied that it is not necessary for the protection of the public that the offender be detained in custody.

However, this is not a new indeterminate sentence, as the prisoner must be released at the end of the appropriate custodial term. The defendant will then serve the additional year on license, over and above the normal license period.


The Court stated that where consecutive s.236A sentences are passed then consecutive additional license terms must also be passed (para 24).
The Court also provided a checklist:

a) Is the offence listed in schedule 18A?

b) If the offence is a repealed historic sexual offence, did it involve rape or penetration of a child under 13?

c) Was the offender aged 18 or over when the offence was committed?

d) Section 236A cannot apply if the court imposes life or an extended sentence for the offence or an associated offence.

e) A sentence is to be expressed as a single term comprising the custodial element and a further one-year period of license.

f) Each offence qualifying for section 236A must be sentenced in the terms set out at e) above.

g) Are the section 236A sentences to run concurrently or consecutively to one another? If concurrently, the overall custodial term for those offences plus 1 year further period of license should be stated at the end of sentencing.

h) If consecutively, the total custodial term for those offences as well as the total further period of license should be stated at the end of sentencing.

In the case of Fruen, the sentencing judge fell into error in imposing determinate sentences totalling 6 years, when a s.236A sentence should have been imposed.



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