[2025] EWCA Crim 1237

As we have been reminded on behalf of the Solicitor General, this court is not bound by an indication which may have been given by a sentencing court: see Attorney General's Reference No 17 of 1998 [1999] 1 Cr App R(S) 407. That continues to apply after the procedure which has now been endorsed by this court in R v Goodyear [2005] and subsequently the Criminal Procedure Rules.

We have also been reminded on behalf of the Solicitor General of the definitive guideline issued by the Sentencing Council for offences of being concerned in the supply of Class A drugs.

There is no dispute in this case that count 1, which is the relevant offence, was about being concerned in supplying drugs directly to users. The harm was therefore necessarily within category 3 in the guideline.

If one takes the position, which the judge did, that the indictment referred to only one day, and therefore the offender's role was a lesser one, the guideline recommends a sentence with a starting point of three years' custody, within a category range of two years up to four years and six months.

As is common with Sentencing Council guidelines, a stepped approach is required if the guideline is to be applied properly. In the course of that stepped approach, having gone through steps 1 and 2, it is only at step 3 that the guidelines states that consideration should be given to the imposition of the seven year minimum term which is otherwise required under section 313 of the Sentencing Code, and to consider whether the imposition of that minimum term would be unjust in the particular circumstances of the case.

There is no dispute that in the circumstances of the present case, other things being equal, the facts are such that the third drug trafficking offence did trigger the minimum sentence provisions. Count 1 was committed on 27 May 2022.

It is accepted on behalf of the Solicitor General that the question of whether there are particular circumstances which made the imposition of the minimum term unjust is inherently a fact sensitive exercise: see R v Woolfe [2019] EWCA Crim 2249; [2020] 2 Cr App R(S) 6.

Our attention is drawn to the decision of this court in R v Clarke (Jewell) in particular at [16], where Edis LJ said that the court is required to apply the law that Parliament enacted; it should not be tempted to treat perfectly normal circumstances as particular circumstances justifying a decision not to impose the minimum sentence.

Further, at [28] Edis LJ said that the judge was required to follow the guideline which set out a process by which if he had followed it faithfully he would also comply with his legal obligation under section 313 of the Sentencing Code. The proper way of approaching that case was to go through the steps in the guideline which applied, in the order in which they are set out in the guideline. That involves dealing with step 1 first, step 2 second and step 3 third.

According to the guideline, in considering the offence at step 3, a provisional assessment is made as to the seriousness of the triggering offence. Against that, the seriousness of the earlier offences and the period of time that has elapsed between offences, may determine whether the imposition of the seven year term would be unjust. However, in Attorney General's Reference (R v Marland) [2018] EWCA Crim 1770, the sentencing judge had given considerable weight to the passage of time between the commission of the offence with which they were dealing and the second qualifying offence, this court held that that was not a sufficient reason not to impose the minimum sentence required by the statute.

We should also mention the more general provisions of section 59 of the Sentencing Code, which required a sentencing court to follow any relevant sentencing guideline, unless satisfied that it would be contrary to the interests of justice to do so.

Turning to the question of breaches of the suspended sentence order, we are reminded on behalf of the Solicitor General that paragraph 14 of Schedule 16 to the Sentencing Code requires a court to activate a suspended sentence order unless it is of the opinion that it would be unjust to do so.

The guideline on breaches of a suspended sentence sets out the predominant factor in determining whether activation is unjust which relates to the level of compliance with the original order, and the facts and nature of the new offence. Where the breach involves multiple or more serious new offences being committed, the penalty would usually be full activation of the original custodial term.

The guideline makes clear that only new and exceptional factors or circumstances not present at the time the suspended sentence order was imposed, should be taken into account.

We are also reminded on behalf of the Solicitor General that merely passing the custody threshold does not mean that a custodial sentence is inevitable: see, for example, R v White [2024] EWCA Crim 1390; [2025] 1 Cr App R(S) 28.