[2025] EWCA Crim 1237

We remind ourselves of the important but relatively limited role of this court on an application under section 36 of the 1988 Act. The principles are well established and were summarised, for example, in Attorney General's Reference (R v Egan) [2022] EWCA Crim 1751; [2023] 2 Cr App R(S) 16 at [3] to [6], where this court cited the seminal decision of this court in Attorney General's Reference No 4 of 1989 (1990) 90 Cr App R 366 at 371; and the decision of this court in Attorney General's Reference No 132 of 2001 (R v Bryn Dorian Johnson) [2002] EWCA Crim 1418; [2003] 1 Cr App R(S) 41. As the court there summarised, the principles are as follows:

Turning to the circumstances of the present case, in our judgment the judge was entitled to take the view that it would be unjust in the particular circumstances of this case to impose the statutory minimum term for the offence of being concerned in the supply of a Class A drug. That was very much a matter for his assessment and evaluation and it would not be appropriate for this court to interfere with that judgment.

However, when it comes to the question of whether a community order was an adequate sentence in this case, we do, with respect, consider that it was necessary to impose a custodial sentence. A sentence needed to be passed in accordance with the usual approach in the guideline, even if one were to put to one side any question of a minimum sentence. In our judgment, it was not reasonably open to the sentencing court to take the view that it would be contrary to the interests of justice not to follow that guideline.

The main factor which clearly influenced the sentencing judge was the serious attack on the offender in September 2023 and the consequent impact on his life. Nevertheless, as Miss Husbands has submitted, that cannot affect the culpability of the offender at the time of this serious drug offending. It can be taken into account in other ways. In particular, it is an important feature of the mitigation available to the offender and no doubt those who have to deal with the offender – for example, the prison authorities – will have to take steps to make sure that he can be properly looked after in the context of prison. But there are, with respect, people with disabilities who do have to serve custodial sentences in prison.

If the definitive guideline were to be applied, for a category 3 offence (that is, dealing directly with customers), and even taking the judge's position that the offender had played a lesser role, the starting point recommended is three years' custody, with a category range of two years to four and a half years. That is for a single offence and is the notional sentence after a trial. Account must be taken of both aggravating and mitigating features. Guilty pleas also need to be taken into account.

In addition, the other offences which were committed need to be taken into account. But, in our view, count 1 can properly be taken as the lead offence, and the other sentences ordered to run concurrently with the sentence imposed upon it. Very importantly, the fact that many of these offences were committed while there was a suspended sentence order in operation needs to be reflected in the overall sentence.

It follows that the sentence for count 1, which should be treated as the lead offence, needs to be increased so as to reflect the overall gravity of the offending, while respecting the principle of totality, so that the total sentence is just and proportionate.

We have reached the conclusion that the sentence on count 1 should be one of five years' imprisonment.

We also consider that the 15 month sentence imposed for the suspended sentence order needs to be activated, but should be made concurrent, as we have already taken it into account in arriving at the total sentence.

The sentences on the various other matters cannot be left untouched and also need to be varied. But we make it clear that they will all be made concurrent.

The new sentences in relation to each count or matter are as follows.

The first matter, with the reference URN 36CJ1256022, is an offence of failure to provide a specimen of blood, contrary to section 7(6) of the Road Traffic Act 1988. The sentence is altered so as to be eight weeks' custody.

The next matter, with the reference URN 37CJ1431822, consists of four matters. First, for driving a motor vehicle with a proportion of a specified controlled drug above the specified limit, contrary to section 5A(1)(a) of the Road Traffic Act 1988, the sentence will be one of four weeks' custody. Second, for driving a motor vehicle with a proportion of a specified controlled drug above the specified limit, again there will be a sentence of four weeks' custody. Third, for driving a vehicle with a child passenger under the age of 14 not wearing a seatbelt, contrary to section 15(3)(b) of the Road Traffic Act 1988, the judge imposed no separate penalty, and we leave that unchanged, so there will be no separate penalty. Fourth, for using threating words or behaviour, contrary to section 4A of the Public Order Act 1986, there will be a sentence of four weeks' custody.

We turn next to the indictment, which has the reference URN 37CJ1446222. It contains five counts and the sentences will be as follows: on count 1, which is the lead offence of being concerned in supplying a controlled drug of Class A to another, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971, we impose a sentence of five years' imprisonment; on count 2, possession of a controlled drug of Class B with intent, contrary to section 5(3) of the 1971 Act, there will be a sentence of ten months' custody; on count 3, possession of a controlled drug of Class B with intent, again there will be a sentence of ten months' custody; on count 4, producing a controlled drug of Class B with intent, contrary to section 5(3) of the 1971 Act, there will be a sentence of three weeks' custody; and on count 5, possessing a controlled drug of Class B, contrary to section 5(2) of the 1971 Act, there will be no separate penalty.

Next, with the reference URN 37CJ1453723, for an offence theft, contrary to section 1(1) of the Theft Act 1968, there will be a sentence of four weeks' custody.

Lastly, with the reference URN 37CJ1710824, for breach of a Restraining Order, contrary to section 363(1) of the Sentencing Act 2020, there will be a sentence of eight weeks' custody.

We also need to deal with the suspended sentence order, which was imposed on 22 February 2022 for an offence of affray. We activate the custodial sentence in full, that is 15 months. But, as we have said, all of the sentences will run concurrently with each other.

That results in a total sentence of five years' imprisonment.

We need to deal with the period of disqualification from driving. The judge imposed a period of three years' disqualification and ordered the offender to take an extended re-test. We maintain the order that there has to be an extended re-test, but we increase the period of disqualification from three years to five years and six months. That represents the initial three years which the judge had imposed, but in addition includes half of the total sentence of imprisonment which this court is imposing. That accords, in our judgment, with the decision of this court in R v Needham [2016] EWCA Crim 455.

There are two ancillary matters that arise. First, in relation to the statutory surcharge, we direct that the appropriate statutory surcharge is payable.

Finally, the Criminal Appeal Office has raised a procedural issue, on which we have received helpful submissions from counsel. In particular, there is a very helpful note from Miss Husbands, on behalf of the Solicitor General.

The issue concerns whether the matters that were committed by the Magistrates' Court to the Crown Court were committed lawfully. Suffice to say that the note from Miss Husbands, with which Mr Dyble takes no substantial issue, sets out reasons why either the committals were lawful, or, if there is any doubt about them, there was an alternative way in which they could have been properly committed to the Crown Court for sentence.

It is unnecessary to prolong this judgment to deal with this technical issue, important though it is, because it has been made clear by this court in a number of recent decisions that a committal for sentence is lawful where there was a power available to commit, even though the magistrates sought to use another, unlawful power: see R v Webb [2024] EWCA Crim 1699 at [13]. That is clear from the judgment of this court in R v Butt and Jenkins [2023] EWCA Crim 1131. See also R v Bills [2025] EWCA Crim 794 at [5], where again Butt is cited, for the proposition that a sentence is not invalidated in cases in which an incorrect statutory power was used to commit a case to the Crown Court.