Attorney General’s Reference and “Unduly Lenient” Sentences: Flexible Use of Guidelines and Limited Appellate Intervention

1. Introduction

In R v Griffiths-Davies [2026] EWCA Crim 737, the Court of Appeal (Criminal Division) (Popplewell LJ, Goose J, and the Recorder of Sheffield sitting as a judge of the CACD) refused leave on an Attorney General’s Reference under section 36 of the Criminal Justice Act 1988. The Solicitor General contended that a total sentence of 4 years 4 months’ imprisonment for a range of child sexual exploitation and child sexual abuse image offences was unduly lenient.

The appeal turned not on factual dispute (the offender had pleaded guilty) but on (i) how the sentencing judge was entitled to calibrate seriousness within a guideline category and range, (ii) whether the presence of multiple culpability factors mechanistically required an uplift, and (iii) the high threshold for intervention under the unduly lenient sentence jurisdiction.

Parties and offences

  • Applicant: His Majesty’s Solicitor General (Attorney General’s Reference).
  • Offender: the offender (no previous convictions), aged 43 at sentence.
  • Lead offence (Count 1): causing a child under 13 (“V”, aged 6) to engage in sexual activity, contrary to section 8 Sexual Offences Act 2003, arising from taking and submitting to a Telegram group a nude image of V holding a sign with the group name.
  • Image offences: distribution and making of indecent photographs (categories A–C) under section 1 Protection of Children Act 1978; possession of prohibited images under section 62 Coroners and Justice Act 2009; possession of extreme pornographic images (bestiality) under section 63 Criminal Justice and Immigration Act 2008.

Procedural context

The sentencing judge imposed concurrent terms, with Count 1 as the lead count, plus an indefinite Sexual Harm Prevention Order and a 15-year Restraining Order. The offender received full one-third credit for guilty pleas (not criticised on the Reference).

2. Summary of the Judgment

The Court of Appeal refused leave. It held that:

  • The sentencing judge was entitled to treat the section 8 offence as less serious, within category 2A, than many section 8 cases (which can include penetrative activity), while recognising that the gravity here lay in the intended and actual use of the image to gain access to abuse networks.
  • The judge did not err by regarding that a number of aggravating features were already “baked in” to the guideline categorisation, and by resisting a mechanistic uplift merely because multiple culpability factors were present.
  • It was permissible sentencing practice to use the indecent images production guideline as a cross-check (without applying it), to understand relative culpability in overlapping conduct.
  • Applying established authority, the sentence did not fall outside the range of sentences reasonably open to the sentencing judge; therefore it was not unduly lenient.

The Court also flagged an administrative/legal correction point: because some offending pre-dated 1 October 2012, a victim surcharge should not have been imposed; if it was recorded, the record should be corrected.

3. Analysis

3.1 Precedents cited

(A) “Extreme youth” within an under-13-only offence

A key preparatory issue at sentence was whether V (aged 6) qualified as “particularly vulnerable due to extreme youth” under the relevant guideline. The judge adjourned to consider authority and concluded that in the context of an offence confined to victims under 13, “extreme youth” is a relative concept and does not automatically apply merely because a child is very young.

The authorities cited to the sentencing judge (and accepted by the Court of Appeal) were:

  • R v W [2022] EWCA Crim 1793 (victim aged 5 or 6).
  • R v KC [2019] EWCA Crim 1632 (victim aged 7 to 8).
  • R v Bajwa [2025] EWCA Crim 1496 (victim aged 8).

In each, the victim’s age was not treated as “extreme youth” for guideline purposes in this offence-type context. The Court of Appeal in the present case expressly endorsed the sentencing judge’s approach: the question is not whether the child is young in ordinary language, but whether the youth is “extreme” compared to the population of potential victims for an offence limited to those under 13.

(B) The unduly lenient sentence jurisdiction

The Court emphasised the controlling principles governing Attorney General’s References, citing:

  • Attorney General's Refence No 4 of 1989 [1990] 1 WLR 41 (test and restraint; sentencing range).
  • Attorney General's Reference No 132 of 2001 (R v Bryn Johnson) [2002] EWCA Crim 1418, [2003] 1 Cr App R(S) 41 (scope of intervention).
  • Attorney General's Reference No 6 of 2012 [2012] EWCA Crim 2746 (unduly lenient threshold).
  • Attorney General's Reference (R v Howard) [2016] EWCA Crim 1511, [2017] 1 Cr App R(S) 8 (public confidence; avoiding “tinkering”).

Synthesising those authorities, the Court reiterated that “unduly lenient” means the sentence falls outside the range of sentences reasonably open to the judge. The jurisdiction is aimed at correcting gross error, not fine adjustments. The Court also anchored this restraint in section 231(2) Sentencing Act 2020: custody must be the shortest term commensurate with seriousness—so leniency, where justified, is not a vice.

3.2 Legal reasoning

(A) Guidelines are not “statutes”: tailoring within category and range

The lead offence was assessed as category 2A (starting point 8 years; range 5–10 years), largely due to: vulnerability and the offender’s conduct in relation to trust/planning/sharing. The sentencing judge then moved downwards within the range, concluding that the activity—taking a single nude photograph of a standing child—was less serious than many section 8 category 2A cases (which may involve direct sexual assault or penetrative activity). The Court of Appeal held this was an orthodox use of guidelines: the starting point is “just that”, and the judge must:

  • situate the case within the spectrum of cases in the same category;
  • adjust within the range to match the particular seriousness before further adjustments;
  • apply guidelines flexibly and not “like a statute”.

(B) Non-mechanistic treatment of culpability factors

The Reference argued that the presence of three culpability “A” factors should have resisted any substantial downward movement. The Court rejected a checkbox approach: the judge was not obliged to uplift significantly (or at all) merely because multiple culpability factors applied. The proper question was overall seriousness once those factors were accounted for in categorisation and the case’s position within the category.

(C) Cross-checking with a related guideline is permissible

The sentencing judge observed that the count 1 conduct could have been charged as making an indecent photograph (likely category C), which carries a much lower starting point. He did not apply that guideline instead; he used it as a cross-check to understand how sentencing policy treats image-making “without more,” while acknowledging that the present case had additional aggravation (Telegram group initiation, intent to access abuse networks) that would drive any image-making sentence well beyond the image guideline range.

The Court endorsed this “measured and proportionate” comparative exercise as sound practice where conduct overlaps, so long as the judge remains anchored to the offence-specific guideline for the offence charged—which the judge did.

(D) Totality and concurrency

The sentencing judge increased the after-trial figure for the lead count to reflect other offending and then imposed concurrent sentences on the remaining counts, producing a total after-trial notional sentence of 6.5 years and a final sentence of 4 years 4 months after credit. The Solicitor General did not challenge the 18-month uplift for totality; the dispute was the after-trial figure chosen for count 1.

The Court’s reasoning was pragmatic: even if a higher sentence was available, the imposed sentence was still within the permissible range; the Reference jurisdiction is not for recalibrating within a reasonable band.

3.3 Impact

(A) Reinforcing restraint on Attorney General’s References

The decision is a clear reminder that the unduly lenient jurisdiction is not triggered by a credible argument that the sentence could have been higher. Prosecuting authorities must show the sentence is outside the reasonable range, not simply below a preferred figure.

(B) “Extreme youth” is contextual for under-13 offences

Although not a novel rule, the case consolidates the practical lesson from R v W, R v KC, and R v Bajwa: in offences limited to children under 13, “extreme youth” is not automatic and should be assessed against the offence’s built-in age scope.

(C) Legitimate use of cross-guideline comparisons

Sentencers may take cautious account of adjacent guidelines as a reality check where overlapping conduct exists, provided they do not substitute the wrong guideline. This can be particularly relevant where the same act (e.g., creating an image) is prosecuted under a sexual activity offence rather than an image offence, producing markedly different starting points.

(D) Administrative compliance: victim surcharge

The Court’s surcharge observation highlights the need for careful temporal checks: where an indictment includes offences predating 1 October 2012, the surcharge may be impermissible and the record must reflect that.

4. Complex Concepts Simplified

  • Attorney General’s Reference (unduly lenient sentence): a prosecution-side mechanism allowing the Court of Appeal to increase a sentence only if it is not merely lenient but unduly—outside the reasonable range.
  • Starting point and range: guidelines provide a typical “starting point” for a category and a permissible range. Courts must still tailor the sentence to the facts; the guideline is not applied mechanically.
  • Category factors and “double counting”: if a factor is used to place the case in a more serious category, it should not automatically be used again to increase sentence unless it has additional weight beyond that already captured.
  • Totality and concurrency: when sentencing multiple offences, courts ensure the overall sentence is just and proportionate; sometimes this is done by making one count “lead” and reflecting the rest through a measured uplift, while ordering other terms concurrent.
  • Cross-checking with another guideline: using another guideline as a reference point to avoid disproportionality, without substituting it for the correct offence-specific guideline.

5. Conclusion

[2026] EWCA Crim 737 underscores three sentencing messages: (1) guidelines require flexible calibration within a category; (2) multiple culpability factors do not mandate a formulaic uplift; and (3) Attorney General’s References demand restraint—intervention is reserved for sentences outside the reasonable range, not for close differences in evaluative judgment. The case also provides a practical compliance reminder on the victim surcharge where part of the offending predates 1 October 2012.