Abstract
Nigel Stone, Visiting Fellow in the School of Psychology, University of East Anglia, reviews recent appeal judgments and other judicial developments that inform sentencing and early release.
Suspension of Sentence?
Perverting justice by paternity deceit
Aged in her early 20s, S. had been in a relationship with F. but, by the point when she was pregnant with their second child (G.), that relationship had deteriorated and she left F., embarking on a relationship with a new partner, P. Following G.'s birth, she did not permit any contact between F and the two children. F. applied to the family court for a contact order, also seeking a DNA test to secure his status as father of G. He was concerned that he had not been named on her birth certificate, the identity of the father being left blank.
When contacted by F.'s solicitor, S. responded that F. was not G.'s father and she had completed a DNA test to prove it. Asked to produce that test result, she supplied a false test result that indicated that P. was G.'s father. She also attended the registry of births and had P.'s name added to G.'s birth certificate as father. Having doubted the authenticity of that test result, F. obtained a family court order for a DNA test, which established that he was G.'s father. S. admitted fabricating the purported DNA test, claiming she had done so without thinking, in ‘a moment of panic’.
On conviction after contested trial of doing acts intended to pervert the course of justice and making a false declaration as to a birth, S. (now aged 25 and having no prior convictions) incurred 32 months’ imprisonment, with 12 months concurrent for the false declaration. Meantime, the family court had directed that the children should live with F.'s mother under a special guardianship order. The Crown Court had been informed that in her mid-teens S. had sustained serious injuries in a road traffic accident, leaving her with very significant disability affecting her arms and a significant risk of epilepsy. A psychological assessment had diagnosed her post-traumatic stress disorder. She had been able to complete a degree in psychology and, her current offending apart, there had been no suggestion that she had been ‘anything other than capable of looking after her two daughters’. By point of sentence, she was eight weeks’ pregnant by P., having known that she was facing sentence, being warned by the court that custody was a real possibility.
On S.'s appeal against sentence, the Court of Appeal considered the application of the relevant Guideline (Perverting the course of justice, 2023), as regards culpability and harm. Among factors identified as indicating high culpability (Category A), the prosecution had argued that two had featured in her case – conduct over a sustained period of time and of a nature that was sophisticated and/or planned. As regards harm, the prosecution had asserted that S.'s conduct had caused F. serious distress, thus falling within Category 1. For a Category 1A offence, the Guideline indicates a starting point of four years, with a range between two and seven years.
The Appeal Court did not agree that S.'s conduct had been maintained over ‘a sustained period of time’, a term the Court considered to be ‘intended to capture those cases where, for instance, an offender provides a false account or a false document and, when challenged, maintains or adds to the falsity’. That was not the case here; her culpability level had been ‘medium’. As for ‘harm’, the impact of her actions on the family court proceedings had been limited. As for the distress experienced by F., that was in large measure a consequence of S.'s refusal to allow him to see his children and her antagonistic approach to the family proceedings. The sentence to be imposed had to reflect the effect of her offending and not those extraneous considerations.
Her offending should thus have been treated as falling within Category 2B of the Guideline, indicating a starting point of 12 months, with a range between nine and 24 months. Taking account of the aggravation deriving from the birth certificate falsehood and S.'s personal mitigation, the Court determined that she merited 12 months’ imprisonment, with no separate penalty for the birth certificate offence, as that it was ‘part and parcel of the attempt to pervert’.
By the point of her appeal hearing, S. was 17 weeks pregnant. The prison where she was detained assessed her as facing a ‘high risk’ pregnancy because, in addition to her mental health difficulties, she was finding it increasingly difficult to manage her personal/self-care needs as a result of her physical difficulties. Those difficulties ‘will only increase as the pregnancy advances, creating higher stress levels which may impact the pregnancy’.
Taking into account Sentencing Council guidance on sentencing pregnant women, (Sentencing pregnant women and new mothers, 2024), the Appeal Court concluded: By her catastrophically stupid behaviour S. lost her good name and probably her career prospects. She gravely prejudiced the chances of resuming family life with her daughters. Those were matters that the judge properly should have taken into account. When one adds in the pregnancy and the significance of that for a woman in custody, we are satisfied that, despite the fact that offences of perverting the course of justice generally attract immediate custody, this is a case in which immediate custody was not appropriate.
The Court substituted a sentence of 12 months suspended for two years. As for conditions, the Court did not consider any penal requirement appropriate, as S. had spent some 10 weeks in custody. ‘As for rehabilitative measures: ‘[she] is an intelligent woman. She has the support of her current partner. We are not persuaded that such measures are necessary.’
R v SAVILLE, [2025] 2 Cr App R(S) 4.
Death by driver's carelessness: how ‘extreme’?
D. had pulled out onto an A road in the half-light of a November morning at 07.30, in front of a motorcyclist (with headlight on) who had no time to react and died in the resulting collision. Then aged 79, D. had no prior criminal history, save for a caution in 2001 for theft. He had been driving for 34 years, with an unblemished record. The PSR writer considered his remorse ‘undeniable’ and the judge had described him as ‘truly riddled with guilt’. He had been diagnosed with anxiety and post-traumatic stress disorder as a consequence of the collision. Character references from his wife and children spoke not only of his positive qualities but also of the marked adverse change in him following the collision.
Following G.'s guilty plea to causing death by careless driving, the judge observed that he had made a serious error of judgment that fell just below the threshold for dangerous driving. By reference to the relevant Guideline (Causing death by careless or inconsiderate driving, 2023) the judge treated the case as falling within Category A and thus adopted a starting point of two years’ imprisonment (with a range between 12 and 48 months), adding six months to reflect that the victim as a motorcyclist was a vulnerable road user, which he then subtracted to take account of mitigation. Following eight months’ discount for plea, the judge subtracted a further four months as ‘an act of mercy’. As regards the possibility of suspending sentence, the judge acknowledged, by reference to the relevant Guideline (Imposition of community and custodial sentences, 2017*) that there was a realistic prospect of rehabilitation. Further, D. had strong personal mitigation, and immediate custody would have a significant harmful effect on his wife of 57 years as he helped to manage her epilepsy. Notwithstanding those considerations, the judge had concluded that appropriate punishment could be achieved only by imposing immediate custody. D. thus incurred an immediate term of 12 months’ imprisonment.
On D.'s appeal against sentence, it was argued on his behalf that the offence had been a very short-lived, single error of judgment. He had not been travelling at excessive speed and the junction did not have an obligatory ‘Stop’ sign. He had looked before driving out but had simply not seen the motorcycle (being driven at about 5 to 10 miles an hour above the applicable 30 mph speed limit).
In the Court of Appeal's view, the real question for Guideline classification purposes was whether D.'s driving had been such an extreme example of executing an unsafe manoeuvre as to place the offence in Category A rather than Category B., the starting point for the former being double that for the latter (12 months, with a range between 26 weeks and three years). In the Court's judgment, ‘this was a bad case of executing an unsafe manoeuvre, which justified some uplift in the starting point, but not so bad as to justify doubling the starting point’.
Approaching the sentencing exercise afresh, on the basis of a Category B offence, the Appeal Court increased the starting point of 12 months by six months to reflect that D.'s driving should be treated as falling in the upper end of the Category B spectrum, but reduced the term by six months to allow for mitigation and then by a further four months to reflect plea. The Court thus arrived at a term of eight months.
As regards suspension of sentence, the Court acknowledged that there remained a strong argument for immediate imprisonment but considered the mitigating factors sufficiently strong to justify suspension for 18 months. Since D. had already spent about 12 weeks in prison, the Court did not impose any requirements. The Court affirmed the Crown Court's imposition of a seven-year disqualification from driving (with a requirement to pass an extended re-test), though noting that D. had resolved never to drive again.
R v DAGNALL, [2025] 2 Cr App R(S) 3.
* Now revised, with effect from 01 September 2025.
Repeat supply offending: Sentencing fundamentally flawed
Police officers undertaking a welfare check on a resident at the Brighton premises of a homeless charity were told that numerous non-residents had been visiting another resident's room. On checking that room, they found C. present there, along with a visiting drug user, and determined that he had been using the room for drug dealing. He was in possession of £1,455, seven wraps of crack cocaine and a mobile phone that evidenced that he had been offering to sell heroin and crack over several months, directly to users in the Brighton area. In interview he claimed to be visiting Brighton to buy a car for cash.
Aged 34 at time of arrest in October 2021, C. had numerous drug offences among his convictions, mainly for simple possession. However, in 2007 he had incurred three years’ YOI detention for supplying cocaine and heroin at age 19 to 20. In September 2018 he had received 54 months’ imprisonment for supplying cocaine, using the same phone line as in 2021. He had been on licence in respect of that sentence when he committed his 2021 supply offending. He thus came within the provision of the Sentencing Code (s313) which stipulates that for a third conviction of class A drug trafficking the court must impose a minimum term of at least seven years, save where ‘particular circumstances’ relating to the offences or to the offender apply that would make this ‘unjust’. By reference to the relevant Guideline (Drug offences, revised 2021), the prosecution and defence agreed that C. fell to be dealt with as a supplier who had played a ‘significant’ role within ‘harm’ Category 3, street level supply to users.
On C's conviction of two counts of possession of class A controlled drugs with intent to supply, following contested trial in August 2024, the judge found that ‘particular circumstances’ applied, based on information within the pre-sentence report:
C. had committed his first qualifying offence ‘a very long time ago’ when ‘very young’. (The judge also referred to an observation in the PSR that C. might have received ‘a disproportionate sentence as a result of the colour of his skin’ and sought to give assurance that this sentencing exercise would be ‘free from any type of discrimination’.) He had not committed any further offence since his arrest in October 2021 prior to his trial (including 276 days subject to curfew). He was now ‘settled in a stable relationship involving a new partner and children’. The quantity of drugs in this instance had been quite low, albeit that the cash indicated further supplying. Sentencers need to take into account the current prison overcrowding crisis.
Observing that ‘a court just needs to step back sometimes apply logic and common sense’, the judge referred to his ‘desired outcome when sentencing people’: ‘The whole point ultimately is to make sure they do not offend again … What I do not want to be responsible for is regression and you offending again because I just follow an automatic minimum sentence’.
Thus, feeling freed from that minimum, the judge took a starting point term of 54 months, reduced to 42 months to reflect the small quantity of drugs C. had been caught in possession of. Having then taken into account what he considered to be mitigating factors, the judge imposed two years’ imprisonment, suspended for two years with an unpaid work requirement of 300 hours and a rehabilitation activity requirement of 28 days, also making a £1000 compensation order in favour of the homeless charity, plus forfeiture of the £1445.
On reference by the Attorney General, alleging undue leniency, the Crown argued that the minimum term should have been applied and that, in any case, C.'s 2021 offending merited a longer custodial term, which could not have been suspended.
The Court of Appeal was clear from the outset that ‘this sentencing exercise was fundamentally flawed’: In our system, sentencing judges do not have complete freedom to pass whatever sentence they like, governed by their personal views about the desirability and efficacy of imprisonment. … judges are required to apply the law.
The Appeal Court identified the following particular flaws in the judge's approach:
C. was not being sentenced for supplying seven wraps of cocaine and it had been entirely wrong to reduce the starting point on that account. He had engaged in street level supplying to users of both heroin and cocaine over a period of four or five months point. His phone and the quantity of cash he was carrying on one day at the end of this period proved the substantial extent of his offending. He had failed to take into account significant aggravating factors requiring a significant upward adjustment from the 54 month starting point – in particular ‘cuckooing’ (usually involving ‘exercising control over the home of another person for drug-related activity’ and often ‘targeting any premises where children or other vulnerable persons are likely to be present’) by using the resident's room at the homelessness charity; C.'s previous convictions. Those factors had merited a significant upward adjustment from the appropriate starting point. As for mitigating factors, the change in C.'s circumstances ‘plainly have relevant traction’ but, as regards the state of the prison system, the Chair of the Sentencing Council had made it clear that this consideration is ‘predominantly concerned with cases where custodial sentences might be short and where a court may be contemplating whether or not they should be suspended’.
In the Appeal Court's view, a term of six years had been merited.
As regards the application of s313, C.'s age at the time of the first qualifying offence and the 11-year gap between the first and second qualifying offence were matters to be properly taken into account. However, the judge had failed to mention that the second of the three sets of offences had been committed as recently as 2018 and that C. had been still subject to the ensuing sentence when he reoffended. ‘There was in a sense a continuous course of conduct which had been broken by a significant term of imprisonment which had failed to deter the offender.’ Further, though a realistic prospect of rehabilitation is a relevant factor which should be considered, ‘this consideration on its own could in no way justify a decision that it would be unjust to impose the statutory minimum sentence’.
Quashing the suspended sentence order (SSO) and approaching the sentencing exercise afresh, the Appeal Court considered that s313 should apply. However, the seven-year term thus indicated was moderated by two months’ reduction (to 82 months) to reflect progress since the SSO was imposed – C. had undertaken some 50 hours unpaid work and had been complying with the rehabilitation activity requirement, albeit ‘to a very modest extent’. The compensation order was also quashed as C. had no means to pay, the sum forfeited now directed to be paid to the homeless charity instead.
R v CLARKE (ATTORNEY GENERAL's Reference), [2025] 1 Cr App R(S) 44.
Sexual Harm
Victim's ‘particular vulnerability’
Having been drinking heavily from mid-afternoon, V. had joined friends at a bar late in the evening, being described as ‘uncharacteristically drunk’. She left the bar alone after midnight, without her possessions, having experienced what she later described as a ‘blackout’. Noticing her in the street, a fast-food delivery rider, B. aged 25, stopped and had initially appeared, by her recollection, ‘friendly’, before grabbing her face and kissing her on the mouth. Though V. had pulled away, he walked her into nearby bushes where he pushed her to the ground, sought to undress her, and molested her to the extent of digital penetration of her vagina, roughly and deeply, causing minor abrasions. She was able to kick him and break free, flagging down a passing vehicle.
On B.'s conviction, following contested trial, of sexual assault and assault by penetration, the judge treated the latter as the lead offence. The prosecution and defence agreed that he should be dealt with under Culpability level B but disagreed whether he came within Harm level 2 or 3, depending on whether V. could be considered ‘particularly vulnerable’. The Guideline (Sexual offences, revised 2022) identifies a starting point of six years’ custody, with a range of four to nine years, for a Category 2B offence but a starting point of two years’ custody, with a range between a high-level community order and four years’ custody for a Category 3B offence.
Determining that V. had been clearly ‘vulnerable’ but not ‘particularly vulnerable’, the judge imposed three years’ imprisonment for the assault by penetration and a concurrent term of three months’ imprisonment for the sexual assault, by forcible kissing. A pre-sentence report had assessed B. to pose a high risk of committing offences causing significant harm to women, based mainly on his denials and the OASys risk assessment.
On reference by the Attorney General, alleging undue leniency on the basis of erroneous offence categorisation for Guideline purposes, the Court of Appeal observed that the judge appeared to have been particularly influenced by the fact that V. had been walking, unaided, at a good pace, and had been able to extricate herself after being dragged to the bushes, and to seek help. However, the judge had failed to take account that she had been ‘uncharacteristically drunk’, had fallen over while at the bar, had had a complete memory blank, had left without her phone, purse and other personal effects, and had walked randomly to a remote location unknown to her, in a deserted street in the rain at night. She had been ‘effectively on autopilot’, with ‘no sense of the threat posed by the offender’. These circumstances reached the ‘high threshold’ of particular vulnerability and her reaction to the assault did not undermine that conclusion.
Determining the correct sentence by reference to Category 2B under the Guideline, the Appeal Court acknowledged that there will always be degrees of ‘vulnerability’ and ‘particular vulnerability’. In this instance the starting point should be adjusted from six to five years to reflect the issues that had influenced the judge. Factoring in the aggravating factors – ‘location, timing and the fact that the offender targeted the victim’ – but taking care to avoid ‘double counting’ factors already taken into account in determining ‘particular vulnerability’, the Court also noted personal mitigation – B.'s age, ‘the fact that he was working and sending money home’ to his wife and child in Uzbekistan, and his ‘positive good character’. In conclusion, the Appeal Court substituted a sentence of 66 months’ imprisonment, with a concurrent term of nine months for the sexual assault. Though asked by the Attorney General to make a finding of dangerousness and thus impose an extended sentence, the Court considered there to be no sufficient basis for that determination.
R v BOLTAEV (ATTORNEY GENERAL's Reference), [2025] 2 Cr App R(S) 9.
Aspects of Violence
Quasi-relationship violence: Recall to prison
Aged in his early 50s, A. had shared a day out with a female friend V., accompanied by his nephew aged nine, in the course of which he had reacted jealously to her innocuous interaction with a younger man. On their return to his home that evening he asked V. whether she wanted to start a relationship with him. When she rejected his advance towards her, he punched and kicked her multiple times, prevented her from leaving, stamping on her foot, grabbing her by the neck and throttling her, and biting her breast. She later described losing consciousness. When A.'s nephew woke during the prolonged attack and became very upset, V. was able to escape, her face severely swollen and distorted. A passer-by contacted the Police who attended and took her to hospital where she required treatment for multiple injuries including fractures to her eye socket, ribs and foot. Her ensuing victim statement referred to her loss of confidence, after being attacked by someone she knew and trusted.
A.'s numerous convictions dating from 1989 included various assaults, culminating in imposition of an IPP (indeterminate sentence for public protection) in 2005 for wounding with intent. [The judgment does not detail the IPP crime, nor state when he was released on IPP licence, though he had been further convicted of battery in 2015.] His arrest for attacking V. triggered his IPP licence revocation and he had remained in prison until his trial for causing GBH with intent, the prosecution being delayed for several months by unavailability of counsel and judge. On conviction following contested trial, a PSR relayed that many of A.'s convictions had featured violence against women with whom he had been in a relationship, or their friends or family.
The Crown Court judge considered that A. fell, for Guideline (Assault, revised 2021) purposes, within Culpability category A (given strangulation and persistence in the attack) and Harm at the top end of category 3 (given that the injuries he caused, though numerous, were not very serious and long lasting). That categorisation indicated a starting point of five years’ custody, with a range between four and seven years. The judge identified as aggravating factors: the presence of a child; the attack occurring in a domestic context; A.'s intoxication at the time after drinking; his previous convictions; committing the crime while on IPP licence. These lifted the sentence term to ten years, reduced to allow for the effect of A.'s recall, as the time he had been in custody awaiting sentence would not count towards the time he would have to serve for the further offence.
On A.'s appeal against a 13½ year extended sentence, comprising a custodial term of 8½ years and an extended licence of five years, it was argued on his behalf that the judge had not been justified in adopting a ten-year term, double the Guideline starting point and three years above the top of the associated range. In particular, (i) the child had not witnessed most, if any, of the actual violence; (ii) A. had not been in an intimate personal relationship with V.; (iii) though drink had been taken, A. had not been drunk; (iv) his previous convictions were almost all elderly and relatively minor; (v) he had already been punished by his recall for committing this further offence while on IPP licence.
The Court of Appeal embarked on reviewing the case by reiterating the principle that the effect of recall to custody does not count towards any further sentence imposed; ‘an offender has no right to a set-off’. However, there is a residual discretion for the sentencer to ‘make some allowance’, especially where: (a) the recall was triggered solely by the conduct resulting in the further conviction, or (b) there has been significant delay, through no fault of the offender, prior to sentence being imposed, or (c) the judge has treated the fact of the offender having been on licence at the time of reoffending as an aggravating feature of the further offence.
Addressing the specific arguments regarding aggravating factors, the Appeal Court observed:
The judge should have been slow to treat the ‘influence of drink’, as an aggravating factor, given that V. had said A. had not been ‘drunk’. A.'s nephew may not have seen all the actual blows and other inflictions of violence, but this was evidently a prolonged and noisy attack, and his reported distress had evidenced an adverse effect on him. Though A’.s relationship with V. had not presented a ‘classic’ instance of a domestic setting most commonly found in cases of domestic abuse, there were aspects here of similar concern – breach of trust, and an attack within a home where the victim had the right to feel that she would be safe. While A.'s previous convictions were not of the most serious, these had been persistent, normally violent, and almost always against his former women friends or their associates. Though A. would have had no basis for complaint if the judge had not made any adjustment to reflect aspects of his recall, she had made ‘generous allowance’ for the ‘time on recall’ element. ‘When a judge has made allowance for time served on recall, they may then also deploy the fact of an offence committed on licence as aggravation.’
In conclusion, the Appeal Court noted that the Guideline recognises that due regard to aggravating matters can take a sentence outside the category range. In this instance the judge had been perfectly entitled to impose what was a robust but not manifestly excessive sentence. Appeal dismissed.
R v ASHLEY, [2025] 1 Cr App R(S) 37.
Large scale violent disorder: Deterrence and severity
Dealing jointly with four appeals against sentence, individually unrelated but all concerning instances of violent disorder (punishable by a maximum of five years’ imprisonment) perpetrated in the immediate aftermath of the fatal stabbing in July 2024 of three young girls at a dance class in Southport, the Court of Appeal (the Lady Chief Justice presiding) sought to clarify and apply the applicable sentencing principles at stake in common. Having regard to ‘the reduction of crime (including its reduction by deterrence)’, as one of the five statutorily specified ‘purposes of sentencing’ (Sentencing Code s57) and the relevant Guideline (Violent disorder, 2020), the Appeal Court reiterated:
• In the context of widespread and significant public disorder, it is not only the precise individual acts of an offender that matter. It is the fact that the offender is taking part in violent disorder, threatening violence against other people and/or property, and is part and parcel of widespread threatening and alarming activity. That is the gravamen of the offending: being one of those who, by weight of numbers, pursues a common and unlawful purpose. Whilst what an individual offender may have done themselves is of relevance, their acts must not be taken in isolation; rather the court must look at the whole picture.
As regards the weight to be given to the need for deterrence, this too can vary according to the context of the offending. ‘If public safety is under threat because of the potential spread of violence across the nation, then deterrence may be of the highest importance.’ The four cases under appeal illustrated ‘the speed with which disorder in one part of the country may be replicated in other areas, each incident encouraging and promoting further incidents elsewhere’. Defendants who choose to involve themselves in activity which threatens the safety and well-being of communities across the nation must therefore expect severe sentences designed not only to punish them but also to deter others.
• As regards whether the application of deterrent sentences ‘inherently prevents consideration of’ suspension of sentence or ‘curtails the need for a pre-sentence report’, the Appeal Court did not consider that any such generic issue applied, each case requiring a fact-specific decision in that respect. However, serious public disorder ‘may well lead to the conclusion that appropriate punishment can only be achieved by immediate custody’.
The four individual cases illustrate the application of those principles.
Cush Aged 20, C. had participated in a Whitehall demonstration. Though no widespread disturbance ensued, protesters were shouting aggressively at police officers and refusing to comply with a dispersal order. C. had kicked out at a police officer, striking his hand, though causing no lasting injury. At the time of this offence, he had been on bail awaiting sentence after pleading guilty to two offences of criminal damage. Following his guilty plea to assaulting an emergency worker (punishable by up to two years’ imprisonment), the sentencing judge comment that his behaviour had run ‘the risk of inflaming the wider situation and encouraging others to attack the police’. A PSR relayed C.'s account of experiencing traumatic events in his childhood, suggesting that this may have led to some emotional instability. The report offered the possibility of a community order with conditions of unpaid work and rehabilitation activity.
The judge had identified ‘culpability’ to be ‘high’, with ‘harm’ ranked at level 2 (‘minor physical or psychological harm/distress’), thus indicating (as in all instances of common assault) (Assault, revised 2021) a starting point of a medium level community order, with a category range from a low-level community order to 16 weeks’ custody. C. incurred an immediate term of 46 weeks’ YOI detention.
Dismissing C.'s appeal, the Appeal Court considered that a ‘very substantial uplift’ had been justified (to 16 months, before credit for plea). Having been walking away from the scene, C, had returned to direct violence at the officer, with the clear risk of provoking similar violence from others. The judge had had due regard to mitigating factors, including C's youth, mental health and possible personality disorder but had been ‘entitled to give much of it limited weight’. As regards suspension of term, the judge had been plainly entitled to conclude that appropriate punishment could only be achieved by immediate custody, without needing to hear more from the probation officer.
Temesgen Aged in his late teens, without prior convictions and described in character references as well-behaved (though he had incurred a caution for assault earlier in 2024 and he faced a pending prosecution for dangerous driving), with good prospects and heavy family responsibilities, T. had participated in a ‘right wing, demonstration’ in Plymouth that led to ‘widespread lawlessness’. Having covered his face, he had thrown ‘liquid’ at counter-demonstrators and then ‘an object, probably a bottle’. He had apologised when arrested. Following his guilty plea to violent disorder, the judge deemed that his offence fell within Category A1 of the Guideline, thus indicating a starting point of four years’ custody and a range between 36 and 54 months. The judge identified a term of 21 months before credit for plea.
On T.'s appeal against 14 months’ immediate custody, imposed without a pre-sentence report (PSR), the Court of Appeal agreed that the judge had been in error in placing him in culpability category A. That relates to ‘the targeting by a group of an individual, or of individuals who are fewer in number than the group’. This was an instance of ‘one group using or threatening violence against another group’. He properly fell within Category B1, thus indicating a starting point of three years’ custody, with a range between two and four years. Further, as T. was a young defendant with family commitments, facing custody for the first time it would have been preferable for the judge to obtain a PSR.
That said, the sentence imposed had not been manifestly excessive or wrong in principle. Among aggravating factors, T. had been ‘an active and persistent participant, undeterred by being pushed back and struck by a police officer in the early stages of his involvement’. There was ‘no good ground on which to challenge the imposition of an immediate sentence’. Appeal dismissed.
White Aged 18, with no recorded prior criminal history and while homeless, following tensions with his mother, W. had joined at an early stage in a large-scale protest in Middlesbrough in which police officers were assaulted, an extensive range of properties were damaged and members of the public had been placed in fear. CCTV images showed him throwing a brick against the window of a Chinese takeaway several times until the window broke. He had handed himself in when he saw the published images and realised that he was ‘wanted’. A PSR relayed that he had been in care and diagnosed with ADHD and autistic spectrum disorder, also experiencing other mental health concerns linked to self-harming. The report writer recommended community requirements of unpaid work and rehabilitation activity.
Following W.'s guilty plea to violent disorder, the sentencing judge located the offences in Category B1, thus indicating a starting point of three years’ custody, with a range between two and four years. Adopting an elevated starting point of 39 months to reflect the context of widespread disorder that day, the judge applied an 18-month reduction to reflect W.'s age, low IQ and lack of maturity as a vulnerable care leaver. The consequent 21 months was then reduced by a third for his early guilty plea, leading to a final sentence of 14 months’ YOI detention.
On appeal, the Court of Appeal noted that W, had perpetrated a brief attack aimed at property, not people, albeit involving the use of a brick. As for mitigation, he had handed himself in, accepting responsibility and expressing remorse. His childhood had exposed him to trauma and abuse, and he had been left a vulnerable young adult. The PSR author had considered that his ADHD and autistic spectrum condition had significantly impacted his thinking and conduct. The Court noted that attaining age 18 does not indicate a ‘cliff edge’ descent from the principles applicable to children and young people as defendants.
Describing this case as a difficult decision to determine, the Court was ultimately persuaded that the ‘exceptional, and exceptionally powerful combination of personal mitigating features’ should have led the judge to conclude that appropriate punishment could be achieved by a suspended sentence order (SSO). The Court substituted 14 months’ SSO, suspended for two years, with a rehabilitation activity requirement for up to 40 days.
Williams Aged in his mid-40s, W. participated when drunk in riotous disorder in Sunderland, involving extensive damage and injuries to police officers. He was ‘persistent, loud and abusive’, shouting at the police line, assuming a boxer's stance and urging officers to fight with him. He threw a drink at the police that struck a shield and then a piece of metal which fell just short of police lines. His prior criminal history included violence, obstructing police, harassment, and breach of court orders but he had never previously served a custodial sentence. A PSR described a difficult childhood and some mental health difficulties – anxiety, depression, and panic attacks. He helped in caring for his sick mother and CAFCASS staff confirmed that he was co-operating well with his former partner in shared living arrangements for their two children.
Following W.'s guilty plea to violent disorder, the judge placed his offence within category B1 of the Guideline. On his appeal against 26 months’ imprisonment, the Court of Appeal observed that a sentence at or near the top of the category range had been merited, before consideration of W.'s personal mitigation. The judge's starting point of 39 months, elevated from 36 months to reflect the aggravating factors, had been justified and he had taken due account of the interests of W.'s children, for whom their mother was now taking fuller responsibility. The term imposed after credit for plea was not excessive and, as it exceeded two years, suspension was not an option. R v CUSH and Others, [2025] 1 Cr App R(S) 33.