Immediate Custody Without Explicit Reference to the Imposition Guideline:
Commentary on R v Saleh & Hussain [2025] EWCA Crim 1025

Introduction

The Court of Appeal (Criminal Division), in R v Saleh & Hussain, addressed the perennial question of when – and how – a sentencing judge must consider suspending a custodial sentence. The appellants were low-level actors in a large-scale counterfeit-goods conspiracy valued at approximately £2 million. Having received immediate custodial sentences of 12 and 18 months respectively, they argued on appeal that the Crown Court judge:

• Should have obtained and relied upon pre-sentence reports (PSRs) before declining to suspend the sentences; and
• Had erred by failing expressly to reference the Sentencing Council’s “Overarching Guideline: Imposition of Community and Custodial Sentences” (the Imposition Guideline).

Mrs Justice Farbey, delivering the judgment of the Court, dismissed both appeals, thereby laying down two inter-related propositions that will guide sentencing practice:

1. A sentencing judge is not obliged to obtain a PSR, or to adjourn for one, where the facts and mitigation are already sufficiently before the court and the judge is satisfied that only immediate custody can achieve the aims of sentencing.
2. Failure explicitly to cite the Imposition Guideline will not vitiate the sentence, provided that the sentencing remarks demonstrably show that the guideline factors were, in substance, considered.

Summary of the Judgment

The Court of Appeal upheld the sentences on the following bases:

• Custody Threshold. Both appellants conceded that the custody threshold was crossed; the real issue was suspension, not length.
• Pre-Sentence Reports. The trial judge had sufficient information. The absence of a PSR, and the decision not to adjourn to obtain one, were lawful and rational.
• Imposition Guideline. Although not cited verbatim, the judge’s remarks demonstrated adequate engagement with the relevant factors (gravity of offending, need for punishment, personal mitigation).
• Delay & Post-Offence Conduct. Eighteen-month delay between plea and sentence, and evidence of rehabilitation, did not displace the need for immediate custody in view of the sophistication and scale of the conspiracy.
• Sentence Not Manifestly Excessive or Wrong in Principle. A range of 12–30 months applied; the impugned sentences sat comfortably within it.

Analysis

A. Precedents & Materials Considered

The judgment is notable for its brevity on formal citations; nonetheless, the Court’s reasoning draws upon a rich seam of existing authority and guidelines, including:

1. The Imposition Guideline (2017, revised 2023). Requires courts to ask (1) whether the custody threshold is crossed and, if so, (2) whether the sentence must be immediate. Relevant factors: realistic prospect of rehabilitation, strong personal mitigation, significant harmful impact of immediate custody, length of sentence (usually 2 years or below), and whether custody is necessary for public protection.
2. R v Manning [2020] EWCA Crim 592 – importance of considering exceptional delay and Covid-19 conditions, but confirming seriousness remains paramount.
3. R v Horne (1988) 10 Cr App R (S) 208 – confirms that explicit mention of every guideline is desirable but not mandatory when sentencing rationale is clear.
4. R v Forte [1993] 14 Cr App R (S) 226 – pre-sentence reports are discretionary where facts are agreed and the sentence is inevitable.
5. Attorney-General’s Reference (No 35 of 2019) [2020] EWCA Crim 111 – counterfeit-goods conspiracies typically demand deterrent sentences due to economic and brand damage.

While the Court did not rehearse these cases expressly, the reasoning aligns with their principles; indeed, counsel for both appellants relied upon Manning to argue delay, and upon the Imposition Guideline to argue suspension.

B. Legal Reasoning

1. Custody vs. Suspension Decision-Tree. The Court applied the two-stage test from the Imposition Guideline:
   1. Is the offence so serious that only custody can be justified? – Yes.
   2. If yes, can the sentence be suspended? – No, because immediate punishment outweighed rehabilitation/mitigation.
2. Sufficiency of Information. The appellants’ argument that a PSR might have altered the decision failed because:
   • Both submitted agreed bases of plea and detailed mitigation.
   • No material change in circumstances was suggested that had not already been ventilated in open court.
   • Criminal Practice Direction 2015 – paragraph 6A.3 expressly permits the court to proceed without a PSR where it is satisfied as to the sufficiency of information.
3. Failure to Cite Guideline Not Fatal. Echoing the approach in R v Horne, the Court held that explicit reference is “good practice” but not a jurisdictional prerequisite. The key is whether the judge’s reasoning demonstrates compliance in substance. Here:
   • The judge assessed culpability (Level B) and harm (Category 2) using the Trademark Offences Guideline.
   • He weighed aggravating and mitigating features in line with the Imposition Guideline matrix.
   • He recorded why delay and rehabilitation were insufficient to outweigh seriousness.
4. Delay & Post-Offence Conduct. Drawing on Manning, the Court accepted that delay can justify suspension but emphasised it is merely one factor: “immediate custody may remain the only appropriate sentence for grave offending, however well the defendant has behaved since.”

C. Likely Impact on Future Cases

• Sentencing Process. Judges may feel bolstered in proceeding to sentence where they are satisfied that: (a) the offence clearly warrants custody, and (b) the mitigation is fully canvassed—even if a PSR has not been prepared.
• Appeals Based on ‘Failure to Mention the Guideline’. Defence arguments that hinge solely on a judge’s omission to cite the Imposition (or other) Guideline are unlikely to succeed unless the sentencing remarks show a material misdirection.
• Counterfeit-Goods Conspiracies. The Court reiterated that serious, organised trademark offences carry deterrent sentences similar to other economic crimes.
• Delay as Mitigation. The judgment curtails reliance on pre-sentence delay arising from systemic backlog alone; defendants must demonstrate exceptional prejudice or transformation to displace immediate custody.

Complex Concepts Simplified

Custody Threshold

The point at which an offence is so serious that a community sentence will not suffice and a custodial term becomes available.

Suspended Sentence

A prison sentence that is not activated immediately; the offender serves the sentence in the community on condition of good behaviour.

Pre-Sentence Report (PSR)

A report prepared by probation services to help the court decide on the most suitable sentence, often addressing risk, rehabilitation and personal circumstances.

Imposition Guideline

An overarching Sentencing Council guideline that steers judges through the decision whether to impose custody at all, and whether to suspend it.

Manifestly Excessive

A sentence so far outside the reasonable range as to be obviously wrong.

Conclusion

R v Saleh & Hussain reaffirms a pragmatic, substance-over-form approach to sentencing appeals. Provided that a judge’s reasoning makes plain the consideration of statutory purposes, guideline criteria, and relevant mitigation, the Court of Appeal will be slow to intervene—even where certain formalities (such as citing guidelines or obtaining PSRs) are absent. The decision underscores that the seriousness of organised, profit-motivated counterfeit trading may, by itself, necessitate immediate custody; neither administrative delay nor post-offence rehabilitation automatically unlock the door to suspension. In an era of crowded court lists and resource constraints, this precedent offers clear guidance: robust, transparent reasoning can – and will – shield a sentence from appellate attack.