Guideline Selection for Section 30 Hate Criminal Damage: Higher-Value Guideline Applies Absent a Section 22 Value Determination

Case: Campbell v R Citation: [2026] EWCA Crim 51
Court: Court of Appeal (Criminal Division) (England and Wales)  |  Date: 6 February 2026
Subject: Sentence appeal; religiously aggravated criminal damage (Crime and Disorder Act 1998, s.30)

1. Introduction

The appellant, Mr Campbell, appealed (with leave) against concurrent sentences of 32 months’ imprisonment imposed after trial for three counts of Religiously Aggravated Damage to Property, contrary to section 30(1) of the Crime and Disorder Act 1998. The offending involved late-night attacks on three educational/community sites in the Romford area that had recently been used as places of Muslim worship: graffiti such as “No Mosque Here/No Mosques/No Muslims Here” and the placement of pig heads at entrances.

The sentencing appeal raised two tightly focused issues of general importance:

• Which Sentencing Council guideline should be used where the monetary value of the criminal damage is under £5,000, but the defendant is charged only with the s.30 aggravated offence?
• Whether the judge’s approach involved double counting by using a guideline category incorporating serious distress/community impact and then applying a further uplift for the aggravated (hate crime) element.

2. Summary of the judgment

The Court of Appeal dismissed the appeal, holding that:

• The sentencing judge was right to apply the higher-value criminal damage guideline (the one with an A1 starting point of 18 months and a range up to 4 years for the basic offence), notwithstanding that the total clean-up cost was less than £5,000.
• The judge’s uplift to reflect the high level of religious aggravation did not amount to double counting. The judge properly avoided inflating the basic offence within-range to reflect features that could be left to the uplift stage.
• In any event, the final sentence could also be justified even had the lower-value guideline been used, because the decisive driver of sentence was the hate element and its community impact.

3. Analysis

3.1 Precedents cited

R. v Rezazadeh [2020] EWCA Crim 607

The sentencing judge and the Court of Appeal used R. v Rezazadeh [2020] EWCA Crim 607 as a comparative yardstick for the scale of uplift in a “high aggravation” mosque-targeting case. In Rezazadeh, the offender attacked five mosques with weapons (sledgehammer/golf club), causing damage and community fear; a sentence of 45 months after guilty pleas was upheld. The Court of Appeal in Campbell stressed the orthodox limitation of such comparisons: Rezazadeh did not set a tariff, but it was a “useful check” showing that 32 months here was not manifestly excessive.

R v Alden [2002] EWCA Crim 421

R v Alden [2002] EWCA Crim 421 was central to the Court’s explanation of the procedural “cap” problem in low-value criminal damage. It stands for the proposition (as treated by the Court here) that low-value criminal damage remains, in law, an either-way offence with the ordinary maximum, unless and until a court applies the special s.22 MCA 1980 procedure so that the matter must proceed “as if” summary-only—triggering restricted sentencing powers even in the Crown Court in certain procedural configurations. In Campbell, the Court relied on the “logic in Alden” to conclude that because no s.22 value decision was ever made, the basic offence should be treated as either-way with a 10-year maximum, supporting the choice of the higher guideline.

Gwynn [2002] EWCA Crim 2951; [2003] 2 Cr. App. R.(S.) 41

The Court acknowledged textbook commentary describing tension between R v Alden [2002] EWCA Crim 421 and Gwynn [2002] EWCA Crim 2951; [2003] 2 Cr. App. R.(S.) 41. Gwynn is treated (in the materials cited) as authority that in some “sending” situations under s.51 Crime and Disorder Act 1998, the Crown Court may be required to make a value finding that can limit sentencing powers for low-value criminal damage. However, the Court in Campbell deliberately did not attempt to reconcile the full complexity or resolve any inconsistency, because it was unnecessary: the offence before it was not basic criminal damage but s.30 aggravated criminal damage, which “is not, and never can be, a summary offence”.

R. v Tuplin [2009] EWCA Crim 1572

R. v Tuplin [2009] EWCA Crim 1572 was cited (via the textbook extract) as part of the same procedural cluster as Gwynn, indicating how low-value criminal damage can be subject to magistrates’ powers limits even when in the Crown Court depending on how the case arrives there. The Court did not decide the correctness or outer reach of these authorities, but treated them as illustrating why the guideline “grey box” attempts to summarise complex law.

Fennell [2000] 1 WLR 2011 and Considine (1980) 70 Cr App R 239

These cases were referenced in the quoted commentary to support the proposition that low-value criminal damage is not inherently “summary-only”; rather, s.22 MCA 1980 requires magistrates in certain cases to proceed “as if” it were summary-only. That conceptual framing supported the Court’s reasoning that, absent the relevant procedural determination, the basic offence should be treated as either-way.

McKechnie, Gibbons and Dixon (1992) 94 Cr. App. R. 51 and R. v Downs

These were referenced within the extracted textbook discussion as part of the disputed/uncertain historical line about when and how the Crown Court’s powers are capped for low-value criminal damage. The Court noted the broader uncertainty but declined to resolve it on this appeal.

3.2 Legal reasoning

(a) The guideline selection problem

The appeal’s first ground asserted that because the total remediation cost was under £5,000, the judge was bound to use the “lower guideline” (Criminal damage (other than by fire) value not exceeding £5,000/ Racially or religiously aggravated criminal damage).

The Court rejected that. The core reasoning was:

• The “lower guideline” is designed for cases where the basic offence has been treated “as if” triable only summarily (with correspondingly low custody maxima) via the s.22 MCA 1980 mechanism.
• Here, the defendant was charged (albeit with some early drafting error) with the aggravated offence under the Crime and Disorder Act 1998, which is not one of the “scheduled offences” to which s.22 MCA 1980 applies; thus the magistrates could not make a s.22 value determination and did not do so.
• Where no such cap-triggering determination is made, the “logic in R v Alden [2002] EWCA Crim 421” implies the underlying criminal damage remains an either-way offence with a 10-year maximum. That maximum drives the guideline choice (even though the defendant is sentenced for the s.30 offence with its 14-year maximum).
• Because only the aggravated offence was ever charged, it was “impossible” to know what maximum would have applied to the uncharged basic count in a counterfactual world. The Court resolved that uncertainty by treating the basic offence as uncapped (no s.22 decision), which makes the higher guideline the correct primary guideline, with a duty to have regard to the lower guideline.

(b) Avoiding double counting: category factors vs uplift

The appeal’s second ground claimed “double counting”: the judge used a category (A1) that already included serious distress and serious social impact, and then uplifted again for the aggravated element.

The Court held there was no double counting because:

• The judge selected A1 because culpability and harm were high (planning/premeditation; intended serious distress and wider impact).
• Crucially, the judge did not then move upward within the A1 range to reflect the particularly grave nature of those harms; he kept the basic sentence at the starting point (18 months) and reserved the principal adjustment for the aggravation uplift stage.
• Given the guideline leaves the quantum of uplift “at large”, the judge was entitled to make a significant increase to reflect the high level of religious aggravation, and remained well within the available range for the basic offence.

(c) A substantive observation about harm in hate criminal damage

The Court highlighted a structural difficulty unique to criminal damage: the law sometimes makes the monetary “value” determinative of maximum sentence for the basic offence. In hate-motivated damage (like targeted anti-Muslim graffiti), the Court emphasised that the real harm may be “in the minds of people, not on the walls”. That observation supported the conclusion that low clean-up cost should not drive a low sentence where the offending is designed to intimidate and inflame community tensions.

3.3 Impact

• Sentencing practice: Prosecutors and courts can expect that where s.30 is charged alone and no s.22 MCA 1980 value determination has been made, the court may properly sentence by reference to the higher criminal damage guideline and then apply an uplift for high aggravation.
• Charging decisions matter: The decision underlines the practical consequences of charging the aggravated offence from the outset: it may avoid the procedural route by which low-value basic criminal damage becomes “as if summary-only”.
• Community impact evidence: The judgment reinforces the importance of impact statements and evidence of community tension/policing resource implications when assessing harm and the appropriate uplift in hate crime property offending.
• Comparative cases as “sense checks”: The Court confirms that where guidelines are non-prescriptive on uplift, limited comparison with prior CA decisions (e.g., Rezazadeh) remains legitimate as a proportionality check, without turning such cases into a tariff.

4. Complex concepts simplified

• “Either-way” offence: an offence that can be tried either in the magistrates’ court or the Crown Court (depending on allocation decisions and statutory rules).
• Section 22 MCA 1980 (low-value criminal damage): a special rule for certain listed offences where, if it is clear the value involved is below £5,000, the magistrates must proceed “as if” the offence were summary-only—often limiting custody (here referenced as 3 months due to the relevant cap mechanism).
• “Basic offence” vs “aggravated offence”: the underlying criminal damage (Criminal Damage Act 1971, s.1) is the basic offence; if it is racially/religiously aggravated (Crime and Disorder Act 1998, s.30), it becomes a separate aggravated offence with a much higher maximum sentence.
• Guideline “starting point” and “category range”: the starting point is the benchmark sentence for the typical case in that category after trial; the range shows permissible variation for more/less serious cases within the category.
• “Uplift”: an increase to reflect an additional feature—here, the statutory hate aggravation—after identifying the sentence that would have been appropriate for the basic offence.
• Double counting: impermissibly increasing sentence twice for the same feature (e.g., treating “serious distress” as both a reason to select a high category and again to increase within-range, and again as an uplift) rather than calibrating the sentence once for that harm.

5. Conclusion

Campbell v R confirms a practical rule for sentencing courts confronted with s.30 religiously aggravated criminal damage where the monetary damage is low: absent a s.22 MCA 1980 value determination (or other cap-triggering step), the court may properly proceed on the basis that the underlying criminal damage is either-way with a 10-year maximum and apply the higher criminal damage guideline (while considering the lower guideline). The decision also provides a clear example of how to apply a substantial hate-crime uplift without double counting, and it underscores that in targeted hate incidents the gravamen of harm is often fear, distress, and wider societal impact, not the cost of cleaning the wall.