Sumner v R – Clarifying the Post-Barnes Formula for Driving Disqualification Where Pre-28 June 2022 Dangerous-Driving Offences Attract Prison Sentences of Seven Years or More

Introduction

In Sumner, R. v ([2025] EWCA Crim 730) the Court of Appeal (Criminal Division) revisited the perennial problem of calibrating sentences and ancillary driving disqualifications for dangerous-driving offences that pre-date, yet are sentenced after, the 28 June 2022 legislative watershed. The applicant, Mr Daniel Sumner, a 33-year-old agricultural worker, caused the death of a cyclist and serious injury to another while driving a tractor–roller combination in rural Cheshire. Having pleaded guilty, he received (a) an aggregate custodial term of 8 years 6 months and (b) a driving disqualification of 10 years 7 months plus an extended retest. He sought leave to appeal on two fronts:

1. That the judge had over-assessed culpability (Category A rather than B) under the Sentencing Council Guidelines on causing death or serious injury by dangerous driving, leading to a manifestly excessive custodial term.
2. That the period of driving disqualification was wrongly calculated, both mechanically and conceptually, in light of the complex interaction between the Road Traffic Offenders Act 1988 (“RTOA 1988”) and the post-2022 release provisions in the Criminal Justice Act 2003 (“CJA 2003”).

Summary of the Judgment

The Court (Garnham J) refused leave to appeal the custodial sentence, holding that an effective 10-year starting point (reduced to 8 years 6 months after 15 % plea credit) was within range given the gravity of the driving and the tragic consequences.
However, it allowed the appeal in relation to disqualification. The disqualification was reduced to 7 years 8 months, broken down as:

• 2 years discretionary period (the statutory minimum under s.34(4) RTOA 1988 as it stood in 2020); plus
• 5 years 8 months extension period (mandated by s.35A(4) RTOA 1988, calculated as two-thirds of the 8 years 6 months custodial term pursuant to s.244ZA CJA 2003).

In doing so, the Court cemented a working formula for practitioners and sentencing judges confronting similar historic offences sentenced today.

Analysis

1. Precedents Cited and Their Influence

1. R v Needham [2016] EWCA Crim 455 – Established that the extension period of a driving disqualification (i.e., the period after release but before an extended test can be taken) must mirror the actual time the offender will serve in custody. It therefore varies with release regimes (half-way vs two-thirds release).
2. R v Barnes & Berouain [2024] EWCA Crim 1548 – Resolved the conflict over whether offenders sentenced after 28 June 2022 for pre-28 June 2022 dangerous-driving deaths and given 7+ year sentences are released half-way (old rule) or two-thirds (new s.244ZA). The Court held the two-thirds regime applies, irrespective of offence date.
3. Sentencing Council Guidelines (2023 editions) on (i) Causing Death by Dangerous Driving and (ii) Causing Serious Injury by Dangerous Driving – Provide categorical grids based on culpability (A, B, C) and harm. The Court measured the applicant’s driving conduct against these.

2. The Court’s Legal Reasoning

Culpability assessment – The Court recognised:

• Excess speed of 10+ mph above the tractor’s 20 mph limit.
• Total failure to adapt to sun glare.
• Complete lack of observation of two vulnerable cyclists.

These failings were egregious, but not a “deliberate decision to ignore rules” or prolonged dangerous driving. Accordingly, the driving sat at the cusp of upper-B / lower-A culpability, justifying a trial-length sentence of 10 years (later reduced by 15 %).

Disqualification calculus – Three statutes interacted:

1. RTOA 1988 s.34(4) – sets an obligatory disqualification “of at least 2 years” for causing death by dangerous driving (pre-2023 text).
2. RTOA 1988 s.35A – obliges the court to add an extension period equal to the time actually spent in custody before release (Needham).
3. CJA 2003 s.244ZA – after 29 April 2020 (via PCSC Act 2022) requires two-thirds release for prisoners sentenced to 7+ years for specified serious offences (including death by dangerous driving, whatever the offence date) – as clarified in Barnes.

At first instance the judge:

• Assumed (wrongly) that the minimum discretionary element was 5 years.
• Miscalculated the extension (5 years 7 months instead of 5 years 8 months).

The Court of Appeal corrected both. It relied on its limited but important power under s.11(3) Criminal Appeal Act 1968: it can reduce or vary sentences so long as it does not impose something more severe overall. Here, trimming the disqualification to 7 years 8 months was less onerous than the original 10 years 7 months, hence permissible.

3. Broader Impact

1) Template for historic cases: Many dangerous-driving fatalities occurred before 28 June 2022 but are still working their way through the courts. Whenever the custodial term is 7 years or more, Sumner (building on Barnes) confirms that:

• The prisoner serves two-thirds; therefore
• The s.35A extension equals two-thirds of the headline sentence; and
• The discretionary element can lawfully be as low as 2 years (pre-2023 law).

2) Counsel’s duty of accuracy: The Court candidly observed that prosecution counsel’s erroneous advice (“minimum 5 years”) misled the judge. This underscores counsel’s obligation to verify statutory minima, especially amid transitional legislation.

3) Limits of the slip-rule and appellate correction: The decision demonstrates how the slip-rule (CrimPR 28.4) cannot cure substantive unlawfulness; only the appellate court, wielding s.11(3) powers, can vary a disqualification that has already taken legal effect.

Complex Concepts Simplified

• Obligatory vs Discretionary Disqualification – For certain road-traffic crimes, Parliament a period off the road (obligatory). Judges may then choose to further “discretionary” years if the circumstances warrant it.
• Extension Period (s.35A RTOA 1988) – A bolt-on to ensure that the offender remains banned for a period ; meant to stop someone stepping from prison straight behind a wheel.
• Extended Driving Test – A more rigorous practical and theory test that must be passed before regaining a licence following serious motoring offences.
• Section 244ZA CJA 2003 – The statutory provision (inserted by the PCSC Act 2022) that shifts the release point for serious offenders from halfway to two-thirds of the sentence.
• Section 11(3) Criminal Appeal Act 1968 – Governs the Court of Appeal’s power when it substitutes a different sentence; the new sentence must not be more severe than the one under appeal.

Conclusion

Sumner is a technical yet important decision that tightens the sentencing machinery for older dangerous-driving cases. While upholding a substantial custodial sentence, the Court of Appeal has:

1. Illustrated a disciplined approach to culpability categorisation, resisting a reflex leap to Category A where the driving, though appalling, was not overtly deliberate or prolonged.
2. Given definitive guidance on how to calculate post-sentence driving bans where (i) the offence is pre-28 June 2022, (ii) the sentence is 7 years or more, and (iii) the two-thirds release regime applies.
3. Reminded practitioners that statutory minima matter and that inaccurate submissions can yield unlawful sentences.

Going forward, Sumner will be the go-to authority for sentencing judges navigating the intricate overlap between the RTOA 1988 and the revised custodial-release framework when fixing extended driving disqualifications. By harmonising doctrine and arithmetic, the case safeguards both judicial consistency and offender fairness.