Unduly Lenient Sentence References May Proceed Despite Voluntary Early Removal Abroad Where a Fair Hearing Remains Possible

Case: Singh & Anor, R. v Neutral citation: [2026] EWCA Crim 870
Court: England and Wales Court of Appeal (Criminal Division) (Lord Justice Jeremy Baker, Mr Justice Bryan, Mr Justice Bourne)
Date: 8 July 2026
Procedural route: Application by the Solicitor General under s.36 Criminal Justice Act 1988 (unduly lenient sentence scheme)

1) Introduction

This consolidated judgment addresses a recurring practical problem at the intersection of (i) the unduly lenient sentence (“ULS”) jurisdiction under s.36 Criminal Justice Act 1988 (“CJA 1988”) and (ii) the administrative removal of foreign national prisoners under the Early Removal Scheme (“ERS”) in s.260 Criminal Justice Act 2003 (“CJA 2003”).

In each case, the respondent (a foreign national) was removed from prison and deported after sentence, but before the Court of Appeal heard the Solicitor General’s ULS application. The key issue was whether (and when) the Court can and should proceed in the offender’s absence, particularly given the statutory “entitlement to be present” in paragraph 6 of Schedule 3 to the CJA 1988 and the fair trial guarantees in Article 6 ECHR.

The Court ultimately proceeded, holding that—on the facts of these cases—fair hearings were still achievable through continued representation and the limited nature of ULS issues. It then found both sentences unduly lenient and substituted increased terms (effective if the offender returns to the jurisdiction).

2) Summary of the Judgment

  • Fairness and jurisdiction: The Court held that it could hear the ULS applications despite the respondents’ absence following voluntary deportation under ERS, provided a fair hearing remained possible (and therefore no abuse of process arose).
  • Administrative error identified: Although deportation orders were not barred by s.34(2) UK Borders Act 2007 (which concerns appeals by the foreign criminal), prison governors should not have authorised ERS removal while a ULS reference was outstanding, consistently with PSI 04/2013 and Home Office Guidance (2015).
  • Sadnam Singh: Leave granted; reference allowed; sentence increased from 30 months (count 1) to 4 years’ imprisonment (count 1), with count 2 concurrent unchanged.
  • Hamze Awfarah: Leave granted; reference allowed; total sentence increased from 3 years to 4½ years’ imprisonment (by quashing and substituting 4½ years on two robbery counts, concurrent with all others).

3) Analysis

3.1 Precedents Cited (and How They Shaped the Decision)

  • Attorney-General's Reference No 4 of 1989 [1989] 11 Cr App R (S) 517
    Provided the foundational test: a sentence is “unduly lenient” only if it falls outside the range reasonably open to the sentencing judge; and even then the Court retains a discretion whether to increase it. The present Court relied on this architecture both for the ULS threshold and for recognising a post-threshold discretion (though it exercised the power to increase in both cases).
  • Attorney-General's Reference No 132 of 2001 (Bryn Dorian Johnson) [2002] EWCA Crim 1418
    Reinforced the public confidence rationale for ULS references, which the Court treated as an important counterweight when considering whether there was “utility” in proceeding despite deportation.
  • Attorney-General's Reference (Egan), [2022] EWCA Crim 1751
    Supplied the modern summary of ULS restraint: exceptional circumstances, not borderline cases, and targeted at “gross error”. The Court deployed this summary twice—first to frame the review discipline in the deportation/fairness discussion, and then when concluding each sentence fell outside the proper range.
  • Attorney General's Reference (No 79 of 2015) (R v Nguyen) [2016] EWCA Crim 448 (with discussion of Attorney General's Reference No 19/2005 B (W) [2006] EWCA Crim 785, Attorney General's Reference No 84/2009 R v Quain [2010] EWCA Crim 1879, and Attorney General's Reference No 74/2010 R v Pearson [2011] EWCA Crim 873)
    Clarified the two-stage evidential position: (i) undue leniency is judged only on material before the sentencing judge; but (ii) if the sentence is found unduly lenient, the Court may consider up-to-date material when deciding what substitute sentence is “appropriate”. This supported the Court’s conclusion that the absent offenders suffered limited forensic disadvantage at the threshold stage, because that stage is document-bound to the sentencing record.
  • R v Hayward, Jones & Purvis [2001] EWCA Crim 168 and R v Jones [2002] UKHL 5
    These were the cornerstone authorities for proceeding in a defendant’s absence, emphasising caution and the primacy of fairness. The Court transposed the “fairness” framework (developed in trial context) to a sentencing-review context, treating representation and the constrained scope of ULS issues as key safeguards.
  • R v Gavin & Tasie [2010] EWCA Crim 2727
    Helped draw a distinction between voluntary and involuntary absence in Article 6 terms, and suggested the discretion to proceed may be exercised more readily for sentencing than for determination of guilt. The Court used this to support proceeding where removal was voluntary and the hearing was about sentence.
  • R v Bilalaj [2023] EWCA Crim 254
    The only prior ULS decision directly addressing voluntary deportation before the hearing; it proceeded and substituted a sentence “effective if” the offender returned. The present Court treated it as supportive of proceeding, while stressing the outcome is fact-sensitive and not automatic for future cases.
  • R v Maxwell [2010] UKSC 48
    Provided the abuse of process taxonomy. The Court located the relevant risk (if any) in the first category: where continuing would be unfair because a fair hearing cannot take place. It rejected the second category (integrity/manipulation) as there was no deliberate manipulation and ULS serves systemic confidence.

3.2 Legal Reasoning

A. The statutory tension: “entitled to be present” vs “power may be exercised although he is not present”

Schedule 3 to the CJA 1988 contains two provisions pulling in different directions:

  • Paragraph 6: a person whose sentence is referred “shall be entitled to be present, if he wishes”.
  • Paragraph 8: the Court’s power to pass sentence “may be exercised although he is not present”.

The Court did not resolve this tension by treating voluntary deportation as an outright waiver, even though it viewed waiver as a potentially relevant factor. Instead, it anchored its approach in the overriding requirement of a fair hearing (Article 6), using R v Jones-type principles adapted for a sentencing-review setting.

B. Why fairness was achievable here

  • Nature of the ULS threshold issue: undue leniency is determined strictly on the material available to the sentencing judge (per R v Nguyen), limiting what the respondent might add by personal attendance.
  • Representation continuity: both respondents were represented at sentence, and those lawyers continued to assist the Court. This reduced the risk of “instructional collapse” that can make an in-absence hearing unfair.
  • Limited role of post-sentence material in practice: the Court noted that the usual additional material is a prison progress report, of limited weight. It proposed pragmatic fairness adjustments: assume positive progress for one respondent; ignore adverse behaviour entries in the other’s report.
  • Voluntary removal as a relevant (not decisive) factor: the Court indicated involuntary deportation might have made proceeding unfair (drawing on R v Gavin & Tasie), but here the removals were voluntary and likely occurred with awareness of the ULS process.

C. Abuse of process and “utility”

The Court held that if a fair hearing can occur, it is not an abuse to proceed. It also rejected the argument that there is “no point” because the respondent is abroad: an increased sentence has continuing effect if the respondent returns (because ERS removal does not extinguish the sentence, and statutory provisions preserve liability to detention for the balance if the person is in the UK again). Additionally, victims and public confidence are legitimate interests served by the Court determining whether the original sentence was grossly wrong.

D. Administrative lessons (without creating a legal bar)

Although deportation orders were lawful in timing under s.34(2) UK Borders Act 2007, the Court found ERS authorisation should not have happened in either case, consistently with PSI 04/2013 and HO Guidance 2015 (which treat ULS proceedings as “outstanding criminal matters”). The Court expressly encouraged the Attorney General’s Office to adopt a notification procedure to the Home Office to prevent repetition.

3.3 Sentencing Outcomes: What “unduly lenient” meant in practice here

A. Sexual assault sentence (Sadnam Singh)

  • Guideline categorisation error: the Court held the offending clearly fell within Category 1 harm and Category A culpability (1A), principally due to severe psychological harm and group offending.
  • Starting point and aggravation: correct starting point was 4 years (range 3–7), with significant aggravation including the victim’s age and vulnerability (alone in her home).
  • Outcome: 30 months was outside the reasonable range; substituted minimum appropriate term found to be 4 years (count 1).

B. Multi-incident knife robberies and associated offences (Hamze Awfarah)

  • No dispute on guideline categories: the Court accepted the Recorder’s category decisions, including robbery as A3 (starting point 4 years each).
  • Totality failure: the critical error was treating “four years” as the relevant pre-plea notional term for the lead robberies without properly reflecting the overall criminality of six separate incidents involving a knife and disguise over about 10 days, affecting different victims and (in one incident) children present in the shop.
  • Aggravation understated: the Court rejected the view that robberies were at the “lower end” of the category, pointing to vulnerability (timing/setting), children’s presence, intoxication, and concealment of identity.
  • Recalibration: least proper notional term was 6 years, reduced by 25% for guilty pleas to 4½ years.
  • Outcome: substituted 4½ years on two robbery counts, concurrent, yielding a total 4½ years.

3.4 Impact

  • Clarified approach to deported respondents in ULS proceedings: voluntary ERS removal does not automatically prevent the Court from hearing a ULS reference; the controlling question is whether the hearing can be fair.
  • Practical governance signal: the Court’s criticism of the ERS authorisations, and its expectation of inter-departmental notification, is likely to shape operational practice between the Attorney General’s Office, prisons, and Home Office removal teams.
  • Reaffirmed “utility” of ULS determinations: even where enforcement is contingent on return to the UK, the Court emphasised victims’ interests and systemic confidence as reasons to proceed where fairness allows.
  • Fact-sensitive caution: the Court expressly warned that future cases may be decided differently, especially where absence is involuntary or representation/instructions cannot be maintained.

4) Complex Concepts Simplified

  • “Unduly lenient” (not just “lenient”): A sentence is not increased merely because the Court of Appeal would have passed a higher sentence. It must fall outside the range of sentences reasonably open to the sentencing judge (a “gross error” type threshold).
  • “Leave to refer”: The Solicitor General must first obtain permission (“leave”) from the Court of Appeal before the Court can fully review and, if appropriate, increase the sentence.
  • Early Removal Scheme (ERS): ERS allows certain foreign national prisoners to be removed from prison early for deportation after serving a minimum part of the custodial term. Removal does not erase the sentence: if the person returns to the UK while the sentence is still “live”, they can be detained to serve the remainder.
  • Abuse of process (fairness category): A court will stop (“stay”) proceedings if continuing would be unfair because the defendant cannot have a fair hearing (for example, if absence is involuntary and representation cannot compensate).
  • Totality: When there are multiple offences, the court must ensure the overall sentence properly reflects the whole criminality and is just and proportionate—sometimes requiring consecutive sentences, or (as here) a longer concurrent lead term.

5) Conclusion

[2026] EWCA Crim 870 establishes a practical, fairness-led approach to ULS references where a foreign national offender has left the jurisdiction under ERS: the Court may proceed in the offender’s absence—even where Schedule 3 contemplates an entitlement to be present—if a fair hearing remains achievable through the constrained nature of ULS review and effective legal representation.

On the substantive sentencing issues, the decision also illustrates rigorous enforcement of guideline categorisation (in the sexual assault case) and of totality in multi-incident knife-enabled acquisitive offending.