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England and Wales Court of Appeal (Criminal Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Costin, R. v [2025] EWCA Crim 729 (21 May 2025)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2025/729.html
Cite as: [2025] EWCA Crim 729

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WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
Neutral Citation Number: [2025] EWCA Crim 729
CASE NO 202403014/A5

IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT SNARESBROOK
HHJ GORDON T20230645/T20227537

Royal Courts of Justice
Strand
London
WC2A 2LL
21 May 2025

B e f o r e :

LORD JUSTICE FRASER
MR JUSTICE HILLIARD
MR JUSTICE CONSTABLE

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REX

- v -

MICHAEL COSTIN

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Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE
Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

____________________

MISS S MORRIS appeared on behalf of the Appellant
MR W HORNSBY appeared on behalf of the Crown

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HTML VERSION OF JUDGMENT
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Crown Copyright ©

  1. MR JUSTICE HILLIARD: The provisions of the Sexual Offences (Amendment) Act 1992 apply to this case. Under those provisions, where an allegation has been made that 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.
  2. On 24 July 2024, in the Crown Court at Snaresbrook, the appellant, then aged 59, was sentenced for 22 offences of indecent assault. He had pleaded guilty to some offences and was found guilty of others after a trial.
  3. In what we will call the first set of offences which were committed in the 1980s, he was sentenced to concurrent terms of five years and three months' imprisonment for each of five offences. He had pleaded guilty to the offences. For what we will call the second set of offences which were for the most part committed in the 1990s, he was sentenced to concurrent terms of 10 years' imprisonment for each of 16 offences. He had pleaded guilty to nine of the offences and was convicted after a trial of seven of the offences. No separate penalty was imposed in respect of one offence.
  4. The sentence on one of the first set of offences was ordered to run consecutively to one of the sentences on the second set of offences. Thus the total sentence was one of 15 years and three months' imprisonment.
  5. He now applies for leave to appeal against sentence with the leave of the single judge, although limited to one ground only.
  6. The facts of the offences were as follows. The first set of offences were committed in the 1980s when the appellant was involved in a scout group in Essex. He had become a young leader, responsible for younger scouts. During this time, when he was aged between 17 and 21, he indecently assaulted a number of victims, their ages ranging from 11 to 15. This included sexual touching of genitals, both directly and over clothing or sleeping bags, and masturbating them and performing oral sex on some of them. Most of the offending took place during scouting activities, particularly where there were overnight camps or activities. One complainant had been indecently assaulted when he was at the appellant's home. The appellant encouraged some boys to engage in sexual activity with each other. One complainant said that the appellant created an environment which normalised such behaviour.
  7. By the time of the second set of offences, the appellant was in his mid to late twenties. He was employed as a teacher and still involved in the scouts but now with a group in Suffolk. He was in a more senior position as a leader. The abuse involved fondling of genitals, masturbation and oral sex. In one case he placed his thumb in the anus of one of the victims. The offences occurred during scout group activities and at the appellant's home. The victims were aged about 12 to 14. Some of the complainants described being given alcohol and cannabis by the appellant. Some of the complainants knew him as a teacher at their school.
  8. The judge heard a considerable number of victim impact statements from the many different victims. There were a number of consistent themes. For example, mental health and relationships with family and friends had suffered. Their development had been affected. Some had developed substance abuse issues. Some found it difficult to trust others. It was clear that the adverse effects continued to be felt many years later.
  9. The appellant had previous convictions for sexual offences. He had been sentenced to two years' imprisonment in 1992 for four offences of indecent assault. The victims were about 14 years old and the appellant had been their scout leader. In 2011, he had been sentenced to an indeterminate sentence of imprisonment for public protection with a minimum period to serve of 1,456 days for eight offences of engaging in sexual activity with a male child under the age of 16 and four offences of engaging in sexual activity with a female child under the age of 16. These offences were committed in different circumstances, not in a scouting context, against young children the appellant had come to know.
  10. Once the appellant had served the custodial period of 1,456 days, he could only be released from custody when the Parole Board were satisfied that it was safe to do so. IPP sentences had been created by section 225 of the Criminal Justice Act 2003. These types of sentence were subsequently modified and then finally abolished by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 although that was done with prospective effect only from December 2012. Thus it remains a lawful sentence which the appellant is required to serve in relation to the other offences.
  11. The judge had a pre-sentence report. The appellant told the author that at the time of the first set of offences he had not considered it to be abuse, nor that he was grooming his victims for sexual activity. He said that he thought that they would find the activity pleasurable and did not consider that they were unwilling participants. He took the same view about the later offending. He said that he had first realised that his behaviour was harmful whilst engaged in sexual offending work during his IPP sentence. The pre-sentence report noted that the appellant had made regular applications for parole since completing the minimum term of the sentence. The Probation Service recommended release under strict licence conditions at his last parole hearing.
  12. After the appellant had been interviewed for some of the latest offences the subject of this appeal, he was transferred back from a Category D to a Category B prison. The author of the pre-sentence report thought it was likely that the outstanding allegations had prevented his release on parole. The appellant expressed his regret for what he had done. He was, however, assessed as posing a high risk of serious harm to children.
  13. The judge also had a report from a psychologist dated February 2019. The purpose of that report had been to provide a risk assessment for the Parole Board following the appellant's completion of the Healthy Sex Programme in October 2018. On balance, the author felt that the appellant's risk could be safely managed in the community, as his risk was not believed to be imminent or likely to escalate quickly.
  14. When he passed sentence, the judge said that he was satisfied that the appellant presented a significant risk of causing serious psychological harm to victims by the commission of further specified sexual offences but said that he would not pass an extended sentence because the appellant's future risk could be satisfactorily managed by the release provisions of the IPP sentence. He said that he would pass two sets of sentences. The sentences within each set of offences would be concurrent with each other but the two sets would be served consecutively to each other. He would pass the same sentence for each offence in the particular set concerned on the basis that each offence had aggravated the others.
  15. The judge started with a figure of eight years and 10 months' imprisonment for each offence in the first set. He reduced this to seven years after taking account of aggravating and mitigating features. He then made a further reduction of 25 per cent to reflect the appellant's guilty pleas, resulting in the sentence of five years and three months' imprisonment.
  16. For the second set of offences the judge started with a figure of 11 years and one month's imprisonment. He concluded that the aggravating and mitigating features of this offending balanced each other out. He only allowed credit of 10 per cent for guilty pleas, because although the appellant had indeed pleaded guilty to some of the offences, other offences merited no credit at all as the appellant had been convicted of them after a trial. The result was a sentence of 10 years' imprisonment.
  17. The judge made specific reference to the principle of totality and to the need for the overall sentence to be just and proportionate. The judge referred to the appellant's evidence at trial on those counts which were contested when he had said that he acted for the benefit of the complainants so that they could experience the enjoyment of sexual activity and to his claim that he had obtained no sexual gratification from what he was doing. The judge said that he was concerned by these claims and that there was, in his view, a continued lack of self-awareness which demonstrated the need for further work to be undertaken to address the risk posed by the appellant. He said that what he described as repeated, brazen, manipulative and abusive offending had been committed over two long periods. The judge said that there was strong evidence that the appellant's desire to commit such offences was very deeply entrenched and his evidence in court led the judge to conclude that the risk of further offending remained. The judge said that he would give the appellant credit for the various therapeutic and rehabilitative courses and programmes which he had undertaken whilst in custody. However, he observed that they had not prompted him to mention the present offending at any stage. The appellant had been described as a model prisoner and the judge would also give him credit for that. The judge recognised that between the trial verdicts in February 2024 and sentencing in July 2024, there had been a delay in sentencing the appellant and said that he would make a reduction in the sentence to reflect that. The judge declined to make any further allowance for time that the appellant had spent in custody whilst serving the sentence of imprisonment for public protection.
  18. It had been argued by Ms Morris in written grounds before the single judge that the judge had taken too high a starting point for the offences individually and cumulatively and that he had failed to make a proper allowance for totality. The single judge refused leave on those grounds and they have not been renewed. However, leave was granted to argue the ground that the judge failed to give any weight at all, let alone sufficient weight, to the punitive impact that these proceedings had had on the appellant as a direct result of him being subject to a sentence of imprisonment for public protection.
  19. In written grounds of appeal amplified today orally, counsel says that the appellant had been in prison since 2010 for the offences that led to the imposition of the IPP sentence. The tariff imposed as part of the sentence in 2011 was a minimum of 1,456 days before consideration for release. This tariff had expired in 2015. Counsel says that the police investigation into the current offences had begun in 2017 and the appellant had first been remanded in custody for some of these offences in July 2022. Ms Morris explained that she was not being critical but that matters had taken time. She explained that the Parole Board reviews had paused post-charge whilst the current offences reached a conclusion. She said that the availability of a favourable Parole Board review outcome had been extinguished for the previous seven years as recognised by the author of the pre-sentence report. The appellant had been returned to closed conditions which blocked any progress as regards his release on temporary license or for a period of testing prior to release into the community. Ms Morris argues that any prospect of a future favourable review will now be delayed by the imposition of this further custodial sentence. The appellant will not be considered for parole as long as the sentence continues. This is despite the fact, she argues, that all of the index offences predate the imposition of the IPP by many years. Further, the existence of the IPP means that the current proceedings and the resulting sentence imposed will commence at the point of sentence and none of the time the appellant spent in custody since the inception of the current proceedings will count towards the sentence imposed.
  20. Finally, the appellant would continue to serve his sentence in closed custodial conditions until he is eligible to apply for a place within the open prison estate many years hence. We are grateful to Ms Morris for her submissions which she has advanced to best effect.
  21. The appellant had to be sentenced for a large number of offences. The judge carefully considered the appropriate sentences if the offences had been committed at the present time and made measured reference to current sentencing guidelines as he was required to do. For the most part, the present day categorisations had not been in dispute. Most of the offences would have a starting point of three years' custody and a range from two to six years. However, there were exceptions. For example, two of the counts in the first set of offences were multiple-incident counts which reflected the fact that the appellant had sucked the victim's penis in all on at least seven occasions. The judge was satisfied, rightly in our judgment, that this victim had suffered severe psychological harm. An offence of this kind, a Category 1A offence of sexual assault, would have a starting point of four years' custody and a range of three to seven years' custody. There were then further offences against three more victims in the first set of offences which had to be taken into account when considering the appropriate sentence.
  22. The second set of offences were obviously more serious because the appellant was older and because of the responsibilities which he had been exercising. One offence involved the appellant masturbating his victim and putting his thumb in his anus. The offending took place at the appellant's home. He had invited the victim there. The victim was a child. If viewed in isolation, this sexual activity with a child would have a starting point under present day guidelines of five years' custody and a range of four to 10 years' custody. There were then offences against nine further victims to be considered. This was a catalogue of very serious offending. It is clear to us that the judge had totality well in mind. He ordered the sentences within each temporal group of offences to run concurrently. He was then entirely justified in ordering the sentences for the two sets of offending to run consecutively. They had taken place at different times with separate scout groups and different victims and there had to be effective punishment for all of the offending.
  23. As to the submission which is pursued, it is common ground that the time spent in custody by the appellant whilst serving the IPP sentence cannot count towards the sentence for the present offences. This sentence only began to run when it was passed on 24 July 2024.
  24. There are some similarities with the situation where an offender commits an offence on licence and is then recalled to custody whilst awaiting sentence for the new offence. In that situation, time spent in custody whilst recalled is not time on remand and it does not count towards the new sentence. That is the effect of section 240 ZA of the Criminal Justice Act 2003: see, for example, R v Kerrigan and Walker [2014] EWCA Crim 2438.
  25. There is, however, a discretion to do justice on the particular facts of the case, for example in a case of excessive delay and to make an adjustment to the latest sentence: see R v Ashley [2024] EWCA Crim 1456 and the cases cited there, where it was said that an offender had no right to a set-off but the judge had a residual discretion to make some allowance where, for example, the recall was triggered solely by the conduct that is the offence for which the sentence is being passed and/or there had been a significant delay through no fault of the offender before their sentence is imposed. But it was made clear that to elevate the discretion to an entitlement would be contrary to the intention of Parliament as to what time should or should not count towards a sentence.
  26. Here the appellant was at all material times serving a sentence which had been lawfully imposed. True it is that he might have been released on licence had it had not been for the investigation into the index offences. However, that would only have been because those index offences would have remained hidden until the investigation into them started. What are called "historic sexual offences" sometimes take many years to come to light. But that delay operates to the advantage of a defendant in those circumstances. For many years, serious offending against numerous victims can remain secret. Here, any assessments leading to his release would have been made in ignorance of the true scale of the appellant's offending and of the fact that he would seek to deny some of that offending and be convicted by a jury; and that even against the background of the fuller picture, he was still claiming that he had not received sexual gratification himself from the offending, but had been seeking to enable the victims to receive pleasure for themselves. Had these factors been known about by the Parole Board, if considering his release on licence from the IPP sentence, they would have been bound to have had a considerable impact upon the assessment of risk that he presented and upon the decision whether or not to release the appellant on licence. Further, and as the judge observed, it can now be said and known that all the courses and programmes completed by the appellant had not resulted in him volunteering the full extent of his offending.
  27. In all these circumstances, we do not think that the judge's decision not to exercise his discretion to make an allowance for the fact that the appellant's parole prospects had suffered because proceedings were instituted for the index offences is open to criticism. It was a reasonable decision for him to make. The consequences for the appellant's parole prospects and for how he will spend his time in custody are understandable and unsurprising. They are the consequence of further offences which the appellant had committed. The judge considered all the relevant factors as he was ideally placed to do having conducted the trial of the offences where the appellant had pleaded not guilty.
  28. The fact that he was in custody prior to the sentences that were imposed for these offences was a function of his IPP sentence which remains in effect. That sentence is an indeterminate sentence. To invite the court to take into account what might have occurred regarding release on licence under that IPP sentence is to invite speculation as to what the Parole Board would have done in an entirely hypothetical situation. Such speculation is not only impermissible, it would be an extremely difficult if not impossible task. The position of an IPP prisoner cannot be equated to someone remanded in custody.
  29. The judge did make an allowance for the delay between the conclusion of the appellant's trial and the sentencing hearing and we agree that that was an appropriate allowance to make. Ms Morris also argues that there were unjustified delays in bringing the appellant to trial. We have given this aspect careful consideration because if there was undue delay that would have added unnecessarily to time spent in custody by the appellant which would not count towards his sentence.
  30. Mr Hornsby for the respondent has explained that there were a large number of offences to investigate which had been committed many years before. Investigations had begun in 2017 but other victims were not coming forward until 2021 and 2022, with more interviews of the appellant in 2023. We also note that the appellant did not admit some of the offences until a very late stage in the proceedings and continued to deny others. Had the appellant admitted the offending at the beginning of the investigative process, no doubt he would have been sentenced far earlier in time than he was. As it is, considerable time elapsed but the overall picture is not, in our judgment, one of undue delay but of matters being dealt with as they came to light.
  31. In all these circumstances we are not persuaded that the judge was in error in declining to make any further allowance for time which the appellant had spent whilst serving the IPP sentence. Accordingly, this appeal must be dismissed.

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