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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 >> Bradley, R. v [2025] EWCA Crim 234 (19 February 2025) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2025/234.html Cite as: [2025] EWCA Crim 234

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IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT DERBY
HIS HONOUR JUDGE MARTIN HURST URN: 30DI2219620

Reference by the Attorney General under s36 Criminal Justice Act 1988

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

LORD JUSTICE SINGH:

Introduction

1. This is an application on behalf of His Majesty's Solicitor General 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.
2. The Respondent Offender was born on 6 November 1992 and is now aged 32, although he was 27 at the date of the offence. He has no previous convictions, cautions or the like.
3. On 2 October 2024, in the Crown Court at Derby, the Respondent changed his plea to one of guilty to an offence of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861.
4. There was a second count on the indictment of dangerous driving. It was ordered that this should lie on the file on the usual terms.
5. On 13 December 2024, at the same court, the Offender was sentenced by His Honour Judge Martin Hurst to a sentence of 24 months' imprisonment suspended for 18 months. There was an unpaid work requirement of 180 hours. An appropriate surcharge order was made and other relevant orders, namely a compensation order and a costs order.

The facts

6. The facts are agreed for present purposes and are set out in the Final Reference on behalf of the Solicitor General.
7. On 22 October 2020, at around 8 pm, a Pedro Ehigiatoro left his home address alone and went for a run.
8. At around the same time the Offender was driving his car with his stepdaughter as a passenger. The Offender subsequently told the author of his pre-sentence report that he had been at home when he received a telephone call from his stepdaughter, who was crying and distressed. She told him that a man had approached her on the street and said, "I want to fuck you". Fearing for her safety, the Offender drove to pick her up.
9. When driving home the Offender's stepdaughter mistakenly thought the victim was the man who had spoken to her and pointed him out to the Offender.
10. The Offender stopped his car and shouted at Mr Ehigiatoro out of the window. Mr Ehigiatoro did not recognise the Offender or his passenger and ran off.
11. The Offender followed him in his car. Mr Ehigiatoro ran down a dead-end. The Offender stopped his car behind him and got out. The Offender shouted that he was going to kill him. He shouted, "Who are you?" and,"Where are you from?"
12. The Offender then attacked him, forcing him to the ground, whereupon he started to punch and kick him. The victim tried to put his hands up to protect himself. He pretended to have a fit. The Offender's stepdaughter shouted for him to stop.
13. The incident was captured by CCTV footage.
14. The prosecution's case was that the Offender had used a baton or baseball bat to hit the victim's head. The Judge watched the CCTV footage and sentenced the Offender on the basis that he could not be sure that a baseball bat had been used.
15. The Offender returned to his car and drove off.
16. Mr Ehigiatoro's sought help from a member of the public, who called the police and ambulance services. He was taken to the Queen's Medical Centre where his injuries were noted as a haematoma under the skin of his forehead, a cut to the back of his head, and abrasions to the palms of both hands, the left elbow and left knee. The cut to his head was closed with wound glue, and the other injuries were cleaned and dressed.
17. As a result of the attack, Mr Ehigiatoro was left feeling shocked and shaken. He had moved to the UK two months earlier from his home in Africa in order to be with his wife and to feel safe. He is now scared for himself and his wife.
18. When interviewed following his arrest, the Offender answered no comment to all questions.
19. Eventually he was charged by postal requisition on 14 June 2022.
20. The procedural history is then relatively complicated. The Offender appeared in the Magistrates' Court on 18 July 2022, when there was no indication of plea and the case was sent to the Crown Court.
21. The case was listed for a plea and trial preparation hearing on 15 August 2022, but the Offender was not arraigned on that date. The case was adjourned until 17 October 2022 for an application to dismiss, and a trial date was fixed for 10 January 2023.
22. On 17 October 2022 the application to dismiss was rejected, but again the Offender was not arraigned.
23. On 8 December 2022 the Offender was arraigned and pleaded not guilty to both counts that were then on the indictment.
24. On 16 December 2022 a defence statement was served. In summary, the Offender denied being the attacker.
25. The case was listed for trial in January 2023, May 2023 and January 2024. On all three occasions the trial was vacated through no fault of the parties.
26. On 1 October 2024 the case was listed for trial before His Honour Judge Smith KC. The judge commented that, for his purposes, he considered that a plea to an offence of inflicting grievous bodily harm contrary to section 20 of the 1861 Act would be appropriate. The trial could not be accommodated in that judge's court and was adjourned to be listed before Judge Hurst.
27. On 2 October 2024 the case was listed for trial before Judge Hurst. The Offender sought a sentencing indication from the Judge in respect of count 1 on the following basis: that he pleaded guilty to count 1 on the basis he believed the victim had been responsible for committing an offence towards a teenage family member. He did not use a bat at any time during the assault.
28. That basis was not accepted by the prosecution. The Judge viewed the CCTV footage and stated that he could not be sure to the requisite criminal standard that a bat was used.
29. The most the Judge was prepared to say was that it would not be easy, but, on the face of it, he would be able to suspend the sentence. On that basis, principally because of the delay and because the Offender was of good character, it would be a case where he would be able to consider a suspended sentence.
30. The Offender pleaded guilty to count 1.
31. A pre-sentence report was ordered and sentence was adjourned.

The sentencing process

32. The offence of wounding with intent in section 18 of the 1861 Act is punishable by a maximum penalty of life imprisonment. There is a definitive guideline which has been issued by the Sentencing Council, with effect from 1 July 2021, which applies to all Offenders aged 18 and older in relation to that offence.
33. Of particular relevance for present purposes is this. The guideline recommends the following range of sentences in relation to offences which fall within category A culpability and 3 harm. The starting point recommended is 5 years' custody with a suggested range of 4 to 7 years. If an offence falls into category B culpability and 3 harm, the starting point recommended is 4 years' custody with a suggested range of 3 to 6 years.
34. It is also relevant to mention the definitive guideline issued by the Sentencing Council in relation to the Imposition of Community and Custodial Sentences. This applies to all offenders aged 18 and older, with effect from 1 February 2017, and includes general guidance in relation to the imposition of a suspended sentence order. The guidance emphasises that a suspended sentence is a custodial sentence between 14 days and 2 years, and lists factors that should be weighed by the sentencing judge in considering whether to suspend the operational period of the sentence.
35. Factors in favour of suspension include:

(1) where there is a realistic prospect of rehabilitation;

(2) strong personal mitigation; and

(3) where immediate custody will result in significant harmful impact on others.

36. Factors against the imposition of a suspended sentence include:

(1) where the offender presents a risk/danger to the public;

(2) appropriate punishment can only be achieved by immediate custody; and

(3) a history of poor compliance with court orders.

37. When the Judge came to sentence in this case on 13 December 2024, he was not assisted by a sentencing note prepared by the prosecution or on behalf of the Offender. He did, however, have a pre-sentence report and victim personal statements.
38. The Judge sentenced by reference to harm being category 3 - this was common ground - and also that culpability was category B. The Judge said, for relevant purposes:

"I have now watched the footage twice. If there had been a Newton hearing, I could not be sure that there had been a weapon used. Certainly my view of it is that if one may have been used at one stage, it certainly was not being used at other stages. But I counted no fewer than five kicks that you delivered to your victim in this case, as well as three stamps. But as I have just observed to Mr Janes when he was making this point, although there may have been that number of uses of the foot, the fact of the matter is this court has seen that sort of behaviour on numerous occasions, and it is possible to define how serious the blows are, not least from this footage, but also from the injuries that have been caused. Happily, in this case, the injuries caused your victim were comparatively modest."

39. The Judge recognised that the starting point recommended in the definitive guideline for a category B3 case is 4-years custody with a range of 3 to 6 years. The Judge concluded that there were no aggravating factors to merit an upward adjustment but found that there were mitigating factors, particularly that the Offender had no previous convictions, his expression of remorse and the long delay in this case. From his sentencing remarks it appears to us that it was particularly the delay in this case which led the Judge to treat it as being an "exceptional case", together with the mitigation available to the Offender and the plea of guilty, albeit late in the day, which therefore attracted only a 10 per cent discount - and no complaint is or can be made about that - led the Judge to take the view that this allowed him "just, and it is just, to get this case to 24 months' imprisonment, and I take the view, looking at the imposition guideline, that every aspect of that guideline falls in your favour".
40. That, as we understand it, is what led the Judge ultimately to conclude that the appropriate sentence in this case should be one of 2 years' custody suspended for a period of 18 months.

Relevant principles on section 36 of the 1988 Act

41. The principles to be applied on an application under section 36 of the 1988 Act are well established and can be found, for example, in the judgment of this court in Attorney-General's Reference (Egan) [2022] EWCA Crim 1751; [2023] 2 Cr App R (S) 60 at [3] to [4]. In summary:

(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 sentencing 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 was designed to deal with cases where judges have fallen into "gross error".

42. Furthermore, as is fairly accepted on behalf of the Solicitor General before us, this court has long made it clear that even where it considers that a sentence was unduly lenient, it nevertheless has a discretion as to whether to exercise its powers to increase a sentence: see the seminal decision in Attorney-General's Reference (No 4 of 1989) (1990) 90 Cr App R 366 at 371 (Lord Lane CJ).
43. It is also important to note that in Egan this court had occasion to deal with the relationship between the system for Attorney General References and the judgment of this court in Goodyear [2005] EWCA Crim 888; [2005] 1 WLR 2532: see in particular [48] to [51]. We derive from that passage some points which are also pertinent to the present case.
44. The first is to stress again what this court has said on numerous occasions as to the importance of complying with the formal procedures which are required for Goodyear indications. Those were set out in Goodyear itself and have subsequently been set out in detail in a relevant Practice Direction. They are well known to practitioners and should be at the forefront of the minds of everyone concerned, including of course sentencing judges. In the present case, as in Egan, the relevant processes were not fully complied with. For example, there was not a proper application in writing before the Judge was invited to give an indication.
45. The second point which this court mentioned in Egan at [49] is that, even in a case where this court concludes that there has been an unduly lenient sentence, the court retains a discretion whether in fact to increase that sentence. Nevertheless that is a discretion. There are no absolute rules. It by no means follows that it will always exercise that discretion against the law officers. Everything depends on the particular facts of the case and whether it would be unjust to increase the sentence having regard to all the relevant circumstances. Those circumstances can include, for example, the conduct of the prosecution in the sentencing court.
46. The third observation which this court made in Egan at [51] also has some potential relevance to the present case. The court said that double jeopardy can sometimes play a part in this court's consideration of the factors which it must take into account in deciding whether to increase a sentence or not, referring to Attorney-General's Reference (Nos 14 & 15 of 2006) (French & Webster) [2007] 1 Cr App R (S) 40 at [60] (Lord Phillips CJ). But the court in Egan made it clear that it by no means follows that because a sentence was suspended in the court below this court is not able to increase a sentence if that is ultimately the right conclusion to which the court should come.

Submissions for the Solicitor General

47. On behalf of the Solicitor General, Ms Pattison submits that the Judge fell into error in three respects: first, by miscategorising the level of culpability; secondly, by identifying a sentence of 24 months' imprisonment; and thirdly, by deciding to suspend the sentence. She submits that a sentence significantly longer than 24 months' imprisonment was merited in this case and so the conditions for suspension simply did not arise.
48. Ms Pattison observes that the correct procedure in relation to an indication of sentence was not fully followed in this case, by reference to the decisions of this court in Goodyear and Egan.
49. She submits that the Judge correctly determined that the level of harm in this case was category 3 but that when assessing culpability he did not take into account that this was a revenge attack on the basis of the Offender's own admissions. She points out that revenge is a factor indicating culpability category A.
50. Ms Pattison submits that even if this was not considered revenge, so as to elevate culpability to category A, it was a targeted attack and therefore merited an upward adjustment within category B when considering culpability.
51. Furthermore, although the Judge could not be sure that a baseball bat or baton had been used in the attack, the Offender did use the equivalent of a weapon, namely a shod foot to stamp on the victim while he was on the ground. This factor, she submits, alone merited a starting point within the medium culpability bracket of category B.
52. Furthermore, she submits that the Judge was wrong to say that there were no aggravating factors in this case. The offence was committed in front of the Offender's stepdaughter, and therefore a child.
53. It is accepted that a downward adjustment was merited to reflect the Offender's lack of previous convictions and positive good character.
54. It is not, however, accepted that any or any significant account should have been taken of the delay in these proceedings. She submits that from the date of charge at least, the reason why the proceedings took more than two years to reach their conclusion was mainly because the Offender chose to advance a false defence and only admitted his guilt at a late stage.
55. No complaint is made by either party before us about the reduction of 10 per cent for the guilty plea, which was merited to reflect the late stage at which it was entered.
56. Returning to Ms Pattison's submissions, she notes that the Judge did not specifically refer to the criteria for imposing a suspended sentence order in the Imposition Guideline other than to say that every aspect of that guideline fell in the Offender's favour. She submits that, contrary to the impression formed by the Judge, this was not an "exceptional case".
57. The decision to suspend the sentence was unreasonable, not least because the appropriate punishment was a term of significantly longer than 24 months and therefore it would have had to be immediate custody.

Submissions for the Respondent

58. On behalf of the Respondent, Mr Janes reminds this Court that an Attorney General's Reference is not to be equated with an appeal against sentence. He submits that while the sentence in this case could be regarded as lenient, it was not unduly so. He submits that the Judge was entitled to place the offence in category B3. It was not necessary then for the Judge to identify with mathematical precision the reduction given for any one element of the factors he took into account, provided that any reduction could be said to be within the proper range of his discretion.
59. Mr Janes also submits that the Judge clearly set out the reasons why he was departing from what at first glance might have been the relevant starting point. This court has acknowledged that that is a relevant consideration in considering any reference: see Attorney-General's Reference (No 8 of 2007) (Krivec) [2007] EWCA Crim 922; [2008] 1 Cr App R (S) 1 at [16] (Lord Phillips CJ).
60. Mr Janes submits that although the Judge did not expressly refer to the guideline on imposition of sentences, having regard to the pre-sentence report, the Respondent's good character and his prospects of rehabilitation the Judge was entitled to conclude that it was appropriate to suspend this sentence.
61. In the alternative, Mr Janes submits that even if this court considers the sentence to have been unduly lenient, there are features of it which would justify this court in not exercising its discretion to substitute a more severe sentence.

(1) There was a plea after an indication as to sentence.

(2) Prosecution counsel did not remind the court that the Attorney-General could review the sentence in appropriate circumstances. This is of potential relevance, although it does not bar this court from granting a Reference: see Attorney-General's Reference (No 48 of 2006) (Farrow) [2006] EWCA Crim 2396; [2007] 1 Cr App R (S) 90 at [21] to [23] (Latham LJ, VP of the CACD).

(3) The Respondent was of good character until these proceedings and this would be his first period of custody. This is relevant as part of the double jeopardy principle.

(4) The Respondent has made good progress with the unpaid work element of his sentence.

62. In all the circumstances, therefore, Mr Janes submits that neither the need to uphold public confidence in the criminal justice system nor the particular offending by the Respondent require this Court to interfere with the sentence passed.

Our assessment

63. We see force in many of the submissions made on behalf of the Solicitor General, and we grant leave under section 36 of the 1988 Act. In particular we must stress that the law cannot condone or countenance the sort of action which the Respondent took in this case, even if he believed that the victim had committed an offence against his stepdaughter. People cannot take the law into their own hands.
64. Even if the Judge was correct in placing this offence into category B3, we see force in the Solicitor General's submissions that he could not properly bring the notional sentence down below 3 years - certainly not sufficiently low where after credit for guilty plea the eventual sentence could be 2 years' imprisonment. Accordingly, it would not have been possible for the court to suspend this sentence.
65. Nevertheless we have reached the conclusion that in the circumstances of this particular case it would not be right to exercise this Court's discretion to increase the sentence imposed in the Crown Court. This is particularly for the following reasons.

(1) The Judge did give an indication as to sentence, even if this was not strictly in compliance with the procedure which should have been adopted.

(2) Counsel for the prosecution did not demur at the time and did not draw the Judge's attention to the possibility of an Attorney General's Reference.

(3) There was a long delay between the offence and the date of charge. Although the Respondent can fairly be said to bear much of the responsibility for the delay after that date, he was not responsible for that earlier delay.

(4) He has not committed any further offences in the period since.

(5) He has accepted that what he did was wrong and that he should not have taken the law into his own hands.

(6) He has complied with the terms of the suspended sentence order, including the unpaid work requirement.

66. We bear in mind the helpful recent report dated 31 January 2025, which has been prepared for the purposes of this court, in which it is observed that the Respondent has completed the mandatory online learning he was required to before the deadline. The feedback for his sessions has been good/excellent, and the supervisors have raised no issues regarding his work quality or behaviour. He has completed 32.45 hours of his unpaid work requirement and has 147.15 remaining. The report also states that the Respondent is in full-time employment. If he were resentenced to immediate custody he would lose his job. He has three children: one step-child and two of his own. The impact of custody would directly impact his family emotionally as they would be without a father and his wife would be without a husband to help support her in taking care of the children. The author was not aware of the Respondent's wife's employment status but did express concern that he could be the only person in the home who is employed and so custody would take away their only source of income, leaving them in financial hardship. That element is one aspect of double jeopardy if he were to be sentenced now to a term of immediate custody. We stress again that this is in the particular circumstances of this case only.

Conclusion

67. For the reasons we have given, we grant the Solicitor General leave under section 36 of the 1988 Act but refuse the Reference and do not interfere with the sentence of the Crown Court.