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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 >> Tudor, R. v [2025] EWCA Crim 225 (21 February 2025) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2025/225.html Cite as: [2025] EWCA Crim 225

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IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT TEESIDE
HHJ LAIRD 17SM0766124

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

LORD JUSTICE SINGH:

Introduction

1. This case arises out of the death of Carl James, which was caused by the unlawful act of the respondent offender. We offer our condolences to the family of the deceased.
2. This is an application on behalf of His Majesty's Solicitor General, for leave to refer a sentence to this Court, under section 36 of the Criminal Justice Act 1988 ("the 1988 Act") on the ground that it was unduly lenient.
3. The respondent was born on 28 July 1998 and was aged 25 at the date of the offence in May 2024, and aged 26 at the date of sentence. On 15 October 2024, in the Crown Court at Teesside, the respondent changed his plea to one of guilty to a charge of manslaughter. On 29 November 2024, the offender was sentenced by HHJ Laird KC to a sentence of 6 years' imprisonment. An appropriate statutory surcharge order was imposed.

The Facts

4. The facts are agreed for present purposes and can be taken from the Final Reference. In the late afternoon of 11 May 2024, the deceased, who was known to friends and acquaintances as "Frankie", was in the beer garden at the Jack and Jill public house in Middlesborough. There were a number of other patrons, including children, seated at picnic tables in the garden. The deceased was seated at one table. The offender was seated at a nearby table. The two men had spoken earlier. A Mr Cunningham, who knew the two men and was also in the beer garden, said that they had some "chew" (in other words they had exchanged words), but then agreed not to fight and had shaken hands.
5. About an hour after the initial exchange, the deceased moved to sit next to the offender on his right side at the end of a bench seat. He spoke to the offender but did not appear to be loud or aggressive. A discussion ensued which then became heated. The offender shouted at the deceased: "Fuck off, you can just fuck off." The offender turned to the deceased and, in his seated position, moved very close to the deceased. The offender then suddenly headbutted the deceased to the left side of his head. The deceased fell from his seat to the ground. The offender stood up and moved towards him. The deceased managed to stand up but, just as he did so, the offender punched him to the left side of his head. The offender is 6 feet 3 inches tall and heavily built. According to an eye witness, the offender's punch appeared very forceful. It made a loud noise which caused people to disperse. A woman had to manoeuvre her pushchair and baby out of the way of the offender. The offender then grabbed hold of the deceased from behind. Other patrons intervened and the offender was held in a headlock and pulled away by at least two others to prevent him from continuing his attack. The deceased, who was shorter and smaller than the offender (Mr Cunningham described him as being about 5 feet 8 inches tall and of medium stocky build), stumbled and appeared dazed. He slumped back towards the bench and appeared to hit the left side of his head on the table when falling. People remonstrated with the offender who said, "Fuck this. I'm going" and left the scene. The incident was captured by two CCTV cameras looking out into the beer garden.
6. As a result of the blows he had sustained the deceased lost consciousness. An ambulance was called. People tried to resuscitate him. Paramedics arrived. The deceased was taken by ambulance to hospital. He was admitted and treated but on 14 May 2024, he died from his injuries. He was aged 42.
7. The offender was arrested on 11 May 2024, in the evening, on suspicion of attempted murder and cautioned. He made no significant reply. He was interviewed under caution on 12 May 2024, in the presence of a solicitor and an appropriate adult. He made no comment to questions. On 13 May 2024, the offender was charged with an offence contrary to section 20 of the Offences Against the Person Act 1861, he was further cautioned but made no reply. As we have mentioned, the deceased died the next day (14 May 2024). That subsequently led to the charge of manslaughter.
8. There was a post-mortem examination on the body of the deceased which took place on 16 May 2024. There was also a neuropathological examination conducted. The cause of death was, in the light of those neuropathological findings, considered to be 1A traumatic basal subarachnoid haemorrhage due to 1B, a traumatic tear of the left posterior inferior cerebellar artery due to 1C, a blunt impact on the left side of the head or neck.

The Sentencing Framework

9. The maximum sentence for the offence of manslaughter is life imprisonment. Section 63 of the Sentencing Act 2022 ("the Sentencing Code") provides that:

"Where a court is considering the seriousness of any offence, it must consider—

(a)the offender's culpability in committing the offence, and

(b)any harm which the offence—

(i)caused

(ii)was intended to cause, or

(iii)might foreseeably have caused."

By section 59(1) of the Sentencing Code:

"(1)Every court—

(a)must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender's case, ...

unless the court is satisfied that it would be contrary to the interests of justice to do so."

10. The Sentencing Council has issued a Definitive Guideline for Unlawful Act Manslaughter, with effect from 1 November 2018. The guideline states that:

"For all cases of manslaughter the harm caused will inevitably be of the utmost seriousness. The loss of life is taken into account in the sentencing levels at step two of the sentencing exercise."

The guideline sets out four different categories of culpability, ranging from A (very high culpability) to D (factors indicating lower culpability).

"Factors indicating high culpability

•Death was caused in the course of an unlawful act which involved an intention by the offender to cause harm falling just short of GBH

•Death was caused in the course of an unlawful act which carried a high risk of death or GBH which was or ought to have been obvious to the offender

•Death was caused in the course of committing or escaping from a serious offence in which the offender played more than a minor role

Factors indicating medium culpability

Cases falling between high and lower including but not limited to

•where death was caused in the course of an unlawful act which involved an intention by the offender to cause harm (or recklessness as to whether harm would be caused) that falls between high and lower culpability."

At Step 2, the guideline also states in bold type that:

"where a case does not fall squarely within a category, adjustment from the starting point may be required before adjustment for aggravating or mitigating features."

For a category B case, the guideline recommends a starting point of 12 years' custody, with a category range of 8 to 16 years. For a category C case, the guideline recommends a starting point of 6 years' custody, with a category range of 3 to 9 years.

The Sentencing Process

11. The respondent has three previous convictions for six offences. Of particular relevance for present purposes is that on 26 April 2024, he was convicted at Cleveland Magistrates' Court, on his own pleas, of two offences of battery committed on 27 March 2024. The offender was intoxicated by alcohol and during a disturbance outside a pizza shop in Middlesborough, he punched two men, one to the head and the other to the neck and cheek. He was sentenced on 20 May 2024 to pay compensation. He was on bail awaiting sentence when he committed the present offence.
12. The sentencing court had before it two impact statements, read by their authors: an impact statement from the deceased's partner, which described how the sudden devastating death had affected their young son, her work and home life and her mental health. There was also an impact statement from the deceased's brother which described the devastating impact on the wider family including on the deceased's five sons and two grandchildren.
13. There was no written basis of plea. The offender was therefore sentenced on the basis of prosecution evidence. No pre-sentence report was requested or ordered. There had however been an earlier pre-sentence report prepared in the light of the conviction of the two offences of battery. The author noted that the offender had committed the battery offences and indeed all previous offences when under the influence of either alcohol or drugs. He had heavily misused cocaine. This caused drug induced psychosis and contributed to a mental breakdown and admission to a psychiatric hospital. He admitted to binge drinking alcohol. He was assessed as posing a low risk of reoffending and a low risk of serious recidivism. He posed a medium risk of serious harm to the public.
14. The sentencing court also had before it a Prosecution Note for sentence and a Defence Note for sentence. The offender had written a letter to the judge in which he expressed remorse for his actions.
15. In his sentencing remarks the judge took the following approach. In light of the earlier pre-sentence report, it was unnecessary to obtain one now. He summarised the facts of the case. The assault was brief due to the timely intervention of others but it was also extremely violent. The offender was on bail for two offences of battery when he committed this offence. The prosecution submitted that the level of culpability was in category B, due to the high risk of death or grievous bodily harm which was or ought to have been obvious to the offender. The defence submitted the level of culpability was category C. Both parties acknowledged that the court should not adopt an overly mechanistic approach. Death was caused in the course of an unlawful assault in which the offender intended to cause "a significant injury" to the deceased, with a delivery of a headbutt and punches. The judge could not conclude safely that the assault carried with it a high risk of death or grievous bodily harm which was or ought to have been obvious to the offender. As such the judge formed the view that the case fell into category C. That said, the assault was "very violent" and carried out with an intention to cause a significant injury. That, coupled with aggravating factors, amply justified an upward adjustment for the starting point to 6 years' imprisonment. The aggravating factors were violence in public, young children were present, the offender had committed a violent assault only a couple of weeks earlier and the offender was on bail at the time of this offence. The mitigating factors were the offence was not premeditated, the offender expressed genuine remorse, the offender was still relatively young, there was a realistic prospect of rehabilitation and the offender had pleaded guilty at a relatively early stage. The court could not accede to the submissions made on behalf of the offender that a reduction of one-quarter should be made, a reduction of 20 per cent would instead be appropriate. Taking account of the offender's antecedent history and all the circumstances, on balance, it would not be right to pass an extended sentence. In the circumstances of the case, there were sufficient grounds to move upwards to a starting point of 7½ years' imprisonment, in other words a notional sentence that would have been passed after a trial. The 20 per cent reduction to reflect the guilty plea would then bring that down to a term of 6 years' imprisonment.

Submissions for the Solicitor General

16. On behalf of the Solicitor General, Mr McGhee submits that the sentence imposed was unduly lenient in that the judge failed adequately to reflect the objective high risk the offender created of grievous bodily harm and the offender's subjective intention in the assessment of his overall culpability. The starting point selected was consequently too low. In the alternative, Mr McGhee submits that in selecting a lower starting point that might otherwise have been justified, the judge then made an insufficient upward adjustment to take account of the offender's culpability and the serious aggravating factors which marked the offence. The length of the sentence was thus shorter than that which should have been imposed.
17. Mr McGhee accepts that the judge was entitled to conclude that the offender was not dangerous in the legal sense. He also accepts that a reduction for a guilty plea of 20 per cent, while arguably generous was appropriate and properly justified. Mr McGhee's first main submission is that the prosecution contention that culpability was high, that is category B should have been accepted. The instant case was plainly not a "single punch manslaughter". The offender first headbutted and then punched the deceased, his attack only ended because he was pulled away by others. Mr McGhee submits that a headbutt is capable of being akin to the use of a weapon. He draws an analogy with the use of a knee by reference to Attorney-General's Reference ("JDL") [2018] EWCA Crim 1766; [2018] 2 Cr App R(S) 45 at [27] (Simon LJ) citing R v Smith (Andrew Michael) [2014] EWCA Crim 2606 at [7]. As such Mr McGhee submits it was a factor indicating higher culpability.
18. Mr McGhee reminds this Court that the offender was taller and more heavily built than the deceased. A reasonable inference from all the circumstances is that the offender's unlawful act did carry a high risk of at least grievous bodily harm which was and ought to have been obvious to him. Mr McGhee complains that the judge did not explain with reasons how he resolved this issue. At the hearing before us, Mr McGhee has made clear that the absence of reasons is not his main criticism of the sentencing process in this case.
19. Mr McGhee notes that aside from the contention as to the objectiveness the prosecution had made explicit submission about the subjective intention of the offender. The defence submitted that there was a significant gap between the offender's intention and the consequences of his actions. The judge's determination was that death was caused in the course of an unlawful assault in which the offender intended to cause a significant injury to the deceased. The judge had assessed the offender's level of culpability as medium (that is category C). For culpability for this level in terms of subjective intention, death is caused in the course of an unlawful act which involved an intention by the offender to cause harm or recklessness as to whether harm would be caused, that falls between high and lower culpability. High culpability in this regard is indicated by an intention by the offender to cause harm falling just short of grievous bodily harm. Lower culpability is indicated where there was no indication by the offender to cause any harm.
20. Mr McGhee complains that the judge did not address where between those two levels he placed the offender's intention to cause a significant injury. He submits that it can be reasonably inferred from all the circumstances that the offender's objective intention must have been at of close to culpability of a high level as opposed to a medium level.
21. At paragraph 64 of the Final Reference a significant concession is made, as pointed out by Mr Reid, who has appeared on behalf of the respondent. There it is accepted that the offence did not fall squarely into that category and some downward adjustment from that starting point might properly have been made to reflect the fact that the objective risk and subjective intention might each properly be assessed only as close to culpability at a high level. Mr McGhee also accepts that because there is an overlap between the top of the category range for category C and the bottom of the range for category B and so as to avoid an overly mechanistic approach, the offender's culpability could be placed in category C, but only with an appropriate upward adjustment properly to reflect his true level of culpability. Further, he submits that there were aggravating factors which required a substantial upward adjustment also. Although he accepts before this Court that the exercise is not a mathematical one and the judge was not required to spell out precisely what adjustment he made in respect of which element, nevertheless Mr McGhee submits that the judge overall made an upward adjustment of only 1½ years, which must have been to take account of both culpability and aggravating factors. He submits that adjustment was plainly insufficient.
22. The factors which aggravated this offence were, first, the offender was on bail awaiting sentence for the battery offences. Secondly, the offender had previous convictions, in particular for the recent battery offences, where the offender had punched two victims. Thirdly, the offence was committed in public and in the presence of children. Fourthly, the offence was committed under the influence of alcohol. Mr McGhee fairly acknowledges that there were mitigating factors as well. The offence was not premeditated, the offender expressed genuine remorse, he was still a relatively young man (being 25 at the time of the offence), there was some prospect of rehabilitation, although this could not carry much, if any, weight when he faced a lengthy custodial sentence. Although the offender did not have a mental disorder or learning disability, there was nonetheless information before the judge of his past mental ill health.

Submissions on behalf of the Respondent

23. On behalf of the respondent, Mr Reid KC submits as follows:
24. The judge was entitled to conclude that the objective high risk of death or grievous bodily harm was not established in this case and thus to identify a starting point of 6 years' imprisonment.
25. The judge's conclusion that the respondent intended to cause a significant injury was consistent with his assessment of medium culpability.
26. Having selected the starting point of 6 years' imprisonment, the judge made a substantial upward adjustment of 25 per cent to reflect the respondent's overall culpability and the aggravating features.

Mr Reid has clarified at this hearing that because the judge also considered that there were mitigating factors in the respondent's favour, implicitly the judge must have taken a notional sentence, after trial, of something close to the 8 years' custody which is in fact the bottom end of the recommended range for a category B case. Having taken account of mitigating features, he must have brought that down to 7½ years before then giving a 20 per cent discount for the guilty plea.

27. The judge was entitled to give significant weight to the mitigating features in this case, when assessing the appropriate adjustment to the starting point.
28. Overall therefore the sentence imposed was not unduly lenient.
29. In developing his submissions Mr Reid submits that the factors listed in the Definitive Guideline under category B do not include the use of a weapon, or weapon equivalent as being in and of themselves an indication of higher culpability. Rather the use of a weapon is listed as an aggravating feature but has relevance to culpability where it indicates planning or an intention to cause harm.
30. Mr Reid also reminds us that the judge had viewed the footage and considered all the evidence and was entitled to conclude that the use of a headbutt in this case did not necessarily demonstrate an intention to cause and/or an objective risk of harm falling just short of grievous bodily harm.
31. In so far as complaint is made about the inadequacy of the reasons given by the judge, it is pointed out by Mr Reid that the Defence Sentence Note, in particular at paragraph 5 to 6 can implicitly be taken to have been accepted by the judge. It had been submitted by the defence that since the offence involved a head-butt from a seating position, the case should not be regarded as falling within category B but rather category C. Mr Reid submits that the judge then carefully conducted an exercise in evaluating both aggravating features and mitigating features and was eminently entitled to exercise the judgment which he did. In conclusion, he submits that the sentence fell within the reasonable range which is afforded to a sentencing court by way of discretion and cannot be regarded by this Court as being unduly lenient.

Our Assessment

32. We remind ourselves of some fundamental features of the system for referring sentences as being unduly lenient which Parliament created in the 1988 Act. The principles to be applied are well established and were summarised by this Court in Attorney-General's Reference (Egan) [2022] EWCA Crim 1751; [2023] 2 Cr App R(S) 16 at [3] and [6]. At [3] it was said:

"(1) The judge at first instance is particularly well placed to assess the weight to be given to competing factors in considering sentence.

(2) A sentence is only unduly lenient where it falls outside the range of sentences which the judge at first instance might reasonably consider appropriate.

(3) Leave to refer a sentence should only be granted by this Court in exceptional circumstances and not in borderline cases.

(4) Section 36 of the 1988 Act is designed to deal with cases where judges have fallen into gross error..."

At paragraph 6 the Court cited the judgment of Potter LJ, in Attorney-General's Reference No 132 of 2001 (Bryn Dorrian Johnson) [2002] EWCA Crim 1418; [2003] 1 Cr App R(S) 41, where he said at [24] that the purposes of the system of Attorney-General References include:

"... the allaying of widespread concern at what may appear to be an unduly lenient sentence, and the preservation of public confidence in cases where a judge appears to have departed to a substantial

extent from the norms of sentencing generally applied by the courts in cases of a particular type."

33. We remind ourselves that this Court does not sit to sentence an offender for a second time. Its powers, important as they are, are limited. In particular, this Court cannot interfere with a sentence simply because one or more members of this Court might have imposed a different sentence if we had been sitting in the Crown Court.
34. We also should comment briefly about what has been said about the alleged paucity of reasons given by the judge. No doubt, reasons can always be criticised with hindsight. We bear in mind the conditions in which many judges in the Crown Court have to exercise these difficult sentencing exercises. In our view, the judge's reasoning is reasonably clear from his sentencing remarks. It is possible to discern why the judge formed the views which he did on the various issues before him. There is no need then to give reasons for these. Indeed, this Court has encouraged succinctness in sentencing remarks and discouraged prolixity.
35. Although this is a tragic case in which a human life was lost, we are unable to accept the submissions made on behalf of the Solicitor General that the judge erred in his approach to the categorisation of this offence. What the guideline calls for is judicial evaluation of the facts of a particular case which is before the sentencing court. In our judgment, the judge in this case performed that exercise in a way which he was entitled to. As Mr Reid has observed before this Court, the reality of the matter is that, if this case is properly to be viewed as falling at the cusp between category B and category C, that is in fact what the judge did. It can be tolerably inferred that implicitly the judge had in mind a notional sentence, after trial, of around 8 years' imprisonment. He brought that down, as he was entitled to, to take account of the mitigating features in this case to 7½ years. He then gave appropriate credit for the guilty plea, which is how he ended up with the sentence of 6 years' imprisonment.
36. In all the circumstances, we do not consider that the sentence passed in this case was unduly lenient.

Conclusion

37. For the reasons we have given, this application by the Solicitor General is refused.