“Smith Clarification” – Proper Structuring of Post-Release Driving Disqualifications and the Totality Principle

Introduction

In Smith, R. v [2025] EWCA Crim 978 the Court of Appeal (Criminal Division) considered two intertwined issues:

• Whether an overall custodial sentence of 11 years for a spree of acquisitive and violent offences offended against the Sentencing Council’s Totality guideline.
• How a court should structure a driving disqualification when the offender is already subject to an existing disqualification and will serve a long custodial term before release.

The appellant, a 40-year-old career burglar with 18 previous convictions covering 67 offences, challenged his sentence on the ground that the trial judge misapplied totality. In addition, the Registrar flagged technical errors in the way the judge imposed a 5-year driving ban supplemented by an “extension period” purportedly under s.35A Road Traffic Offenders Act 1988 (“RTOA”).

Summary of the Judgment

The Court of Appeal (Sir Nigel Davis LJ, Chamberlain J and HHJ Lucraft KC) dismissed the appeal against the length of the custodial term but varied the ancillary driving disqualification. Key holdings were:

1. Totality properly applied. Despite consecutive sentences for robbery and aggravated vehicle taking, the 11-year aggregate was not “manifestly excessive” given the gravity of the offending and the appellant’s history.
2. Disqualification order unlawful as framed. Because the appellant was already disqualified and subject to an extended-test requirement from an earlier sentence, the new order duplicated section 36 RTOA and failed to follow R v Needham & Ors [2016] EWCA Crim 455. The Court re-structured the order to:
• a discretionary ban of 5 years;
• a 6-month “extension period” under s.35A RTOA (the minimum for the driving offences before the court); and
• an uplift of the discretionary period to 5 years under s.35B RTOA,
totalling 10 years 6 months, to run from the date of sentence.

Detailed Analysis

Precedents Cited and Their Influence

• Sentencing Council: General guideline – Overarching Principles: Totality
  Forms the backbone for assessing whether consecutive sentences are “just and proportionate”. The Court emphasised that offences of “very different and distinctive characteristics” can warrant consecutive terms if an overall stand-back check is performed.
• R v Needham & Ors [2016] EWCA Crim 455
  Provides step-by-step guidance on combining ss.35A & 35B RTOA where (i) the offender is already serving or about to serve a custodial term over two years and (ii) minimum driving bans are triggered. The Court applied Needham’s “Situation C and D” analysis to re-draft Mr Smith’s ban.
• R v Anderson [2013] EWCA Crim 3060
  Confirms that a court cannot impose a duplicate extended-test requirement when one is already in force under s.36 RTOA. Used to strike out the duplicative order.

Legal Reasoning

1. Choosing the “lead offence”. The trial judge treated one Category B1 dwelling burglary (with a night-time confrontation) as the lead offence, giving 7 years (9y 4m pre-discount). The Court accepted that another judge might have selected the Category A3 robbery, but the structure chosen was not wrong in principle.
2. Consecutivity vs. Concurrency. The key Totality question was whether adding 3 years for robbery and 1 year for aggravated vehicle taking produced an unjust whole. The Court saw “distinctive characteristics” in each offence: violence with a weapon against one victim, and prolonged dangerous driving causing further victims. Consecutive terms therefore valid.
3. Stand-back test. Applying the guideline’s final check, the notional post-trial figure (14y 8m) was proportionate to (a) the appellant’s “appalling record”, (b) the breadth of his criminality, and (c) limited mitigation (late-stage drug relapse).
4. Ancillary driving penalty. The sentencing judge’s slip-rule amendment referenced “s.35A RTOA” but—contrary to Needham—did not calculate (i) the discretionary period, (ii) the extension period, and (iii) the s.35B uplift separately. Moreover, a new extended-test requirement duplicated an existing order, breaching s.36(7) RTOA. The Court used s.35A(4) (minimum 6-month extension) plus a 5-year discretionary term and a 5-year s.35B uplift to reach 10y 6m.

Potential Impact on Future Cases

• Consecutive sentencing guidance strengthened. The judgment underscores that heterogeneous offences (burglary, robbery, dangerous driving) may justifiably attract consecutive terms so long as the “stand-back” check is performed and articulated.
• Driving disqualification framework clarified. When an offender is already disqualified or still serving/extending a long custodial sentence, courts must:
  1. Identify the mandatory minimum extension under s.35A (based solely on the motoring offences before the court).
  2. Set a discretionary ban for deterrence and public protection.
  3. Adjust the discretionary ban under s.35B where substantial custody means the ban would otherwise expire before release.
  4. Avoid duplicating any existing extended-test requirement (s.36(7) RTOA; Anderson).
  This meticulous, three-stage model will now be the template in Crown Courts.
• Administrative vigilance. Registrars and advocates are reminded to cross-check the “licence tail”, existing bans, and potential overlap before final orders are sealed, avoiding unlawful duplication and ensuring accuracy for the Prison and Probation Service.

Complex Concepts Simplified

• Totality Principle: ensures sentences for multiple offences, when added together, are not “crushing” and reflect overall criminality.
• Lead Offence: the offence selected to anchor the sentence; other offences may be concurrent or consecutive to it.
• Mandatory Minimum (“Third-Strike burglar”): by statute, a third domestic burglary carries a minimum 3-year term unless unjust.
• Section 35A RTOA (“Extension Period”): adds a minimum 6-month period to ensure a driving ban extends beyond the custodial term for specified motoring offences.
• Section 35B RTOA: allows uplift of the discretionary ban so that the total ban (discretionary + extension) genuinely operates after release when the offender receives long custody.
• Slip-Rule Hearing: a brief hearing under CrimPR 28.4 where the Crown Court corrects accidental slips or errors in a sentence within 56 days.

Conclusion

Smith provides two significant takeaways:

1. The Court of Appeal reaffirmed that the Totality principle tolerates consecutive sentences for qualitatively different offences—especially where separate victims, violence and significant public endangerment coexist—so long as the final figure is explicitly tested for proportionality.
2. The judgment for the first time sets out, in a single appellate ruling, a full worked example of applying Needham’s s.35A/35B methodology when the offender is (a) already disqualified and (b) will remain in custody for many years. It plugs a practical gap frequently encountered in Crown Courts and should now guide judges, advocates and court staff in crafting lawful, intelligible driving bans.

Consequently, Smith stands as an important authority on both crafting composite sentences and structuring post-release driving disqualifications, reinforcing public protection without over-punishing the offender.