Constraining Category A Culpability in Causing Death by Dangerous Driving and the Limits of Attorney General’s References: Commentary on R v Muldoon [2025] EWCA Crim 1595

Constraining Category A Culpability in Causing Death by Dangerous Driving and the Limits of Attorney General’s References: Commentary on R v Muldoon [2025] EWCA Crim 1595

1. Introduction

This commentary examines the decision of the Court of Appeal (Criminal Division) in R v Muldoon [2025] EWCA Crim 1595, an Attorney General’s reference concerning the sentence imposed for causing death by dangerous driving, causing serious injury by dangerous driving, and driving whilst disqualified.

The respondent, Keaton Muldoon (aged 24), had originally been prosecuted for the murder of Alana Armstrong and the attempted murder of Jordan Newton‑Kay, arising from an incident on 26 November 2024 in which he drove his Land Rover Discovery in pursuit of an illegal e‑motorbike carrying both victims. The prosecution case at trial was that he deliberately drove into the e‑bike. The jury acquitted him of murder and attempted murder, but he had already pleaded guilty to the alternative counts of causing death and serious injury by dangerous driving, and to driving whilst disqualified.

The sentencing judge categorised the causing death by dangerous driving offence as culpability category B under the Sentencing Council guideline, adopted a 6‑year starting point, increased it to reflect aggravating features and the linked injury offence, then reduced for mitigation and a 25% guilty plea to reach an effective sentence of 5 years 3 months’ imprisonment, with an extended period of disqualification from driving.

The Attorney General applied under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient on the basis that:

  • the judge should have placed the offence in culpability category A, and
  • even allowing for mitigation, the sentence should not have fallen below the category A range.

The Court of Appeal refused leave to refer and dismissed the reference, holding that the sentence fell within the reasonable range and that the judge had been entitled to assess the case as category B. In doing so, the court provided important clarification on:

  • how the culpability categories for causing death by dangerous driving should be applied, and
  • the limited role of the Court of Appeal in Attorney General’s “unduly lenient sentence” references.

2. Summary of the Judgment

The Court of Appeal (Criminal Division) held:

  1. The sentencing judge, having presided over a four‑week trial and made careful, detailed findings of fact, was entitled to place the offence in culpability category B of the causing death by dangerous driving guideline (paras 21–23, 25).
  2. The judge had expressly rejected that:
    • the driving constituted a “prolonged, persistent and deliberate course of dangerous driving”, or
    • the undertaking manoeuvre was an “obviously highly dangerous manoeuvre”
    within the meaning of the category A factors (para 22).
  3. On the Attorney General’s new argument that there was a category A factor of “a deliberate decision to ignore the rules of the road and disregard the risk of danger to others”, the Court held that more is required than any deliberate breach of road rules. Paradigm category A cases include racing, deliberately driving on the wrong side of the road, or reversing for a substantial period on a main road (para 24). On the judge’s factual findings about speed (around 25 mph), proximity to the e‑bikes, and the final undertaking manoeuvre, that factor was not made out.
  4. The Court re‑affirmed that under s.36 Criminal Justice Act 1988 it will only find a sentence unduly lenient where it falls outside the range of sentences a judge might properly impose. Section 36 is to address “gross error” (para 20), and appellate deference is owed both to sentencing judgment and to trial findings of fact (paras 20–22, 25).
  5. Accordingly, leave to refer was refused and the reference itself was also refused (para 26). The sentence of 5 years 3 months’ imprisonment and associated disqualifications remained undisturbed.

The case thus confirms a restrictive interpretation of category A culpability for causing death by dangerous driving and emphasises the high threshold for intervention on an Attorney General’s reference.

3. Factual Background and Sentencing at First Instance

3.1 The incident

On the evening of 26 November 2024, the victims, Jordan Newton‑Kay (23) and Alana Armstrong (25), were riding together on an illegal e‑motorbike on rural roads; their friend James Gilbert rode another such e‑bike (para 4). The bikes were:

  • not legal for road use, and
  • not designed for carrying two people (para 4).

At about 8 pm, in darkness, they encountered Muldoon’s Land Rover Discovery, parked unlit in a lay‑by on Sampson’s Lane. The evidence suggested Muldoon was there in connection with a drug deal (para 4). The two e‑bikes shone their headlights into the Land Rover.

Muldoon’s reaction was to start his vehicle and pursue the e‑bikes down narrow, winding, poorly‑conditioned country roads. The judge found that Muldoon was irritated by the e‑bikes shining lights into his car and intended to “teach them a lesson” by frightening them with his larger vehicle (paras 5, 9).

3.2 The pursuit and collision

The pursuit:

  • lasted approximately 2 minutes 20 seconds,
  • covered just over 1 mile, and
  • occurred on dark, narrow country lanes, including Batley Lane (paras 6–7, 10).

The average speed was about 29 mph overall, and approximately 25.41 mph from the start of Batley Lane to the point of the undertaking manoeuvre (para 7). The judge found that:

  • On more than one occasion, Muldoon deliberately drove very close to whichever e‑bike was nearest in order to frighten the riders (para 11).
  • He then performed an undertaking manoeuvre on what had effectively become a passing place on the narrow road, in darkness, where it was plainly unsafe to do so (paras 6, 11).
  • This dangerous manoeuvre caused Mr Newton‑Kay to lose control of the e‑bike, leading to Ms Armstrong’s fatal fall and to Mr Newton‑Kay’s catastrophic injuries (paras 6–7, 11).
  • The judge was satisfied that there was no direct contact between the Land Rover and Mr Newton‑Kay’s e‑bike (para 11).

Ms Armstrong suffered a single heavy impact to her unprotected back on the road surface and was pronounced dead at the scene (para 7). Mr Newton‑Kay’s injuries were life‑changing: severe lower‑leg trauma necessitating amputation 15 cm above the right knee (para 7).

3.3 Post‑incident conduct and investigation

The judge found that Muldoon:

  • Left the scene knowing that there had been a collision causing serious injury (para 12);
  • Attempted to avoid detection by disposing of the Land Rover, which he had already agreed to sell (para 12);
  • Tried to persuade his passenger to dispose of evidence (para 12); and
  • Deliberately attempted to implicate his uncle as the driver, laying false trails when interviewed (paras 7, 12).

When arrested and interviewed on 2 December 2024, Muldoon answered “no comment” to all questions and made misleading suggestions about the involvement of relatives (para 7).

3.4 Findings on intent and causation

Critically, the sentencing judge held:

  • The jury could not be sure that Muldoon deliberately rammed the e‑bike (para 9).
  • There was no real evidence that, when he left the lay‑by, he intended to hurt anybody (para 10); his intention was to frighten and “teach them a lesson”.
  • Any possible mechanical defect in the e‑bike (e.g. bearing failure) did not break the chain of causation: the inherent risk that a bike might suffer mechanical failure or rider error was a risk that Muldoon deliberately took by driving dangerously close at night on narrow, poor‑condition roads (para 13).

3.5 Mental health and culpability

A psychiatric report diagnosed Muldoon with an emotionally unstable personality disorder within the Mental Health Act 1983 (para 8). However, the judge:

  • rejected submissions that this reduced his culpability (paras 8, 16); and
  • treated it, at most, as part of general mitigation rather than altering the culpability category.

3.6 Sentencing structure

The judge sentenced as follows (para 3):

  • Count 2 – causing death by dangerous driving: 5 years 3 months’ imprisonment, and a driving disqualification of 12 years 6 months (10 years discretionary plus a 2½‑year extension under section 35A of the Road Traffic Act 1988).
  • Count 5 – causing serious injury by dangerous driving: 27 months’ imprisonment concurrent, with 5‑year disqualification concurrent.
  • Count 6 – driving whilst disqualified: 1 month’s imprisonment concurrent, and 12‑month disqualification concurrent.

Analysing the sentencing remarks in reverse (para 17):

  • Starting from the category B starting point of 6 years (para 15), the judge appears to have increased the notional sentence to about 9 years to:
    • reflect the serious aggravating features; and
    • take account of the associated serious injury offence to Mr Newton‑Kay.
  • He then reduced this to about 7 years for mitigation (which the Court did not need to rehearse in detail).
  • Applying a 25% guilty plea reduction produced the final sentence of 5 years 3 months (para 17).

5. Precedents and Authorities Underpinning the Judgment

The extract of the judgment provided does not name specific earlier cases, but the Court’s approach clearly rests on well‑established lines of authority in two areas:

  1. Attorney General’s references under s.36 Criminal Justice Act 1988; and
  2. Application of sentencing guidelines in causing death by dangerous driving.

5.1 Section 36 references and appellate restraint

The principles summarised at para 20 reflect longstanding case law on s.36 references, which holds that:

  • The Attorney General’s power is a “longstop”, not a mechanism for routine sentence adjustment.
  • The Court of Appeal must be cautious, intervening only in cases of clear misapplication of principle or manifestly inadequate sentences.
  • The focus is on whether the sentence falls outside the legitimate range, rather than whether the Court would have chosen a different point within that range.

The judgment in Muldoon faithfully applies these principles, stressing that s.36 is to correct gross error, not to provide a second‑guessing of the sentencing judge’s balancing of aggravating and mitigating factors.

5.2 Sentencing guidelines and the judge’s evaluative role

Since the definitive guidelines for driving offences were introduced, appellate decisions have repeatedly affirmed that:

  • Categorisation of culpability is an inherently evaluative judgment for the sentencing judge, based on a holistic assessment of the conduct.
  • The presence or absence of listed factors is important but not rigidly determinative; the question is whether, overall, the case properly belongs in Category A, B or C.
  • Appellate courts will generally respect a sentencing judge’s categorisation, particularly where the judge has heard extensive evidence at trial.

The Court in Muldoon expressly emphasises the trial judge’s “advantages in relation to the findings of fact” and states that those advantages “carry over into the proper assessment of the culpability” (para 22). The judge rejected both Category C and Category A on reasoned grounds, settling on Category B; the Court declined to disturb that evaluative choice (paras 22–23, 25).

6. Legal Reasoning in Detail

6.1 Competing submissions on culpability

The Attorney General’s case (para 18) was that, on the judge’s own findings:

  • Three Category A factors were present:
    • “a deliberate decision to ignore the rules of the road and disregard for the risk of danger to others”;
    • “a prolonged, persistent and deliberate course of dangerous driving”; and
    • “an obviously highly dangerous manoeuvre”.
  • The serious aggravating features (including leaving the scene and attempting to evade responsibility) justified a substantial upward adjustment within the Category A range.
  • Mitigation, while present, could not properly justify reducing the overall sentence below the Category A range.

By contrast, Muldoon’s defence submissions (para 19) emphasised:

  • The jury’s rejection of the murder and attempted murder allegations;
  • The judge’s duty to sentence only on facts consistent with the verdicts, and not on the basis of deliberate ramming or intent to injure;
  • That the elements of dangerous driving identified by the judge were limited in time and distance within the overall pursuit;
  • That the judge could not rule out some mechanical failure (bearing failure causing wheel lock) as a contributory factor; and
  • That the judge had, after hearing four weeks of evidence, reached a balanced decision that the case fell into Category B, an assessment the Court of Appeal should be slow to disturb.

6.2 The judge’s categorisation: why Category B?

The judge approached categorisation explicitly (paras 14–15). He recognised that:

  • Category C was inapplicable because the driving was well above the “just over the threshold” level;
  • The behaviour involved:
    • a dangerous pursuit over more than a mile,
    • deliberate proximity to vulnerable riders to frighten them, and
    • a plainly dangerous undertaking manoeuvre in darkness on a narrow country lane.

However, he expressly rejected two Category A factors:

“Your driving could not properly be described as prolonged and persistent and deliberate, and whilst the manoeuvre you carried [out] was clearly dangerous, I do not consider it could properly be described as an obviously highly dangerous manoeuvre.” (para 15)

On that basis, he assessed the case as Category B, starting at 6 years (paras 15–16), with upward and downward adjustments as noted earlier (para 17).

6.3 The Court of Appeal’s deference to the judge’s evaluative assessment

The Court of Appeal first emphasised that this was a “very difficult sentencing exercise” (para 21), because:

  • The prosecution’s most serious allegations (deliberate ramming with intent to kill or cause serious harm) had been rejected by the jury (para 21).
  • The judge had to reconstruct the incident from limited evidence: surviving witnesses, some CCTV of headlights only, and expert speed calculations (para 21).

The Court then stressed that:

“In our judgment, the judge’s advantages in relation to the findings of fact also carry over into the proper assessment of the culpability.” (para 22)

The judge had heard full submissions at sentence on whether the case involved:

  • a prolonged course of dangerous driving, and
  • an obviously highly dangerous manoeuvre,

and had refused to accept those as Category A features (para 22). The Court therefore held:

“In those circumstances the judge was entitled, on the material and submissions that were before him, to place this into category B.” (para 23)

6.4 The “deliberate decision to ignore the rules of the road” factor

The novel point arose from a Category A factor not put to the judge at first instance (para 24). On appeal, the Attorney General argued that Muldoon’s conduct also engaged the Category A factor of a “deliberate decision to ignore the rules of the road and disregard the risk of danger to others”.

The Court accepted that, on a literal reading, this factor might appear broad enough to capture any deliberate breach of road rules (para 24). For example, any conscious speeding could arguably be said to involve a deliberate disregard of road rules and the risk they exist to prevent.

However, the Court rejected such a literalist approach. It held:

“It is apparent, however, that more is required and cases where this culpability A factor have been proved include: racing; deliberately driving on the wrong side of the road; and reversing for a substantial period on a main road.” (para 24)

On this basis:

  • The paradigm Category A examples involve manifestly egregious and inherently extreme behaviours.
  • The factor is not triggered by any and every deliberate instance of dangerous driving, but only where the driver’s conduct amounts to a clear, wholesale repudiation of the basic rules of safe road use.

Applying that understanding, the Court examined the judge’s factual findings: speeds of around 25 mph, dangerous closeness to the e‑bikes to frighten their riders, and the final undertaking manoeuvre (para 24). It concluded:

“[T]he judge’s findings about speed (about 25 mph), proximity of the car to the e‑motorbikes, and the final manoeuvre, do not suggest a deliberate decision to ignore the rules of the road and disregard the risk of danger to others.” (para 24)

The Court also noted, without treating it as decisive, that prosecution counsel at sentencing had not advanced this Category A factor (para 24).

6.5 Overall conclusion on culpability and sentence

Having affirmed the Category B assessment, the Court considered whether, within that framework, the judge’s sentence nonetheless fell outside the proper range. It concluded that it did not:

  • Starting at 6 years (Category B), moving up to about 9 years to reflect aggravation and the linked serious injury offence, then down to 7 years for mitigation, before a 25% plea reduction, was a conventional and defensible application of the guideline (para 17).
  • The final term of 5 years 3 months sits comfortably within the Category B range (4–9 years).

In the Court’s view, this was not a case of “gross error” or of a sentence outside the permissible range. Thus, both the application for leave and the reference itself were refused (para 26).

7. Impact and Future Significance

7.1 Constraining Category A culpability in driving death cases

The most significant doctrinal contribution of Muldoon is its clarification of the threshold for Category A culpability in causing death by dangerous driving.

The Court’s treatment of the “deliberate decision to ignore the rules of the road” factor ensures:

  • That Category A remains reserved for truly extreme conduct – such as racing, driving deliberately on the wrong side of the road, or prolonged reversing on a main road – which represents a fundamental repudiation of basic road safety norms.
  • That not every deliberate episode of dangerous driving, even one that is deeply irresponsible and causes death, is automatically escalated to Category A.
  • That sentencing remains proportionate and calibrated across Categories A, B and C, preserving a meaningful gradation of culpability.

This guidance will likely influence prosecutors and judges in future cases involving:

  • short but intense episodes of dangerous driving;
  • pursuits at modest or moderate speeds that nonetheless cause catastrophic harm;
  • cases where the driver’s motive is to frighten or intimidate, rather than to injure or kill.

Such cases may more routinely be seen as Category B unless the facts display features akin to the paradigmatic Category A scenarios identified by the Court.

7.2 Reinforcing appellate deference on Attorney General’s references

The case also reinforces the limited scope of the Attorney General’s “unduly lenient” jurisdiction:

  • The Court reiterates that s.36 addresses gross error, not reasonable disagreement between sentencing judges and prosecutors over fine gradations.
  • It underscores that the Court will very rarely overturn a sentencing judge’s culpability categorisation where that judge has:
    • heard substantial evidence at trial;
    • made clear factual findings; and
    • given explicit reasons for rejecting higher or lower categories.
  • The Court is wary of permitting the Attorney General to advance, for the first time on appeal, new guideline factors not argued below, especially when that would entail recasting the nature of the conduct found by the trial judge.

Practically, this judgment signals to the Crown and the Attorney General that:

  • Any arguments for Category A should be squarely put to the sentencing judge, with full engagement on the guideline factors at that stage.
  • Reliance on s.36 should be reserved for clear misapplications of the guideline, not for attempts to relitigate the level of culpability on marginal facts.

7.3 Mental disorder and culpability in driving cases

While not the central feature of the decision, the case illustrates the handling of mental disorder in driving cases:

  • An emotionally unstable personality disorder, even if clinically recognised, will not automatically reduce culpability.
  • Particularly in driving offences – which often involve situational anger, irritation, and impulsivity – courts will look for a clear causal connection between the disorder and the offending before treating it as significantly reducing culpability.

In Muldoon, the judge and the Court treated the disorder as insufficient to displace the central picture: a young man who chose, out of irritation, to chase and frighten vulnerable road users on an unsuitable road at night, with tragic consequences (paras 8, 16).

7.4 Respecting the jury’s verdict in sentencing

The case also exemplifies the principle that sentencing must remain consistent with the jury’s verdict:

  • The jury’s acquittals on murder and attempted murder meant the judge could not sentence on the basis of intentional ramming or intent to cause serious harm.
  • The judge instead carefully identified what he could be sure of – an intent to frighten, not to injure (paras 9–10) – and grounded the sentence accordingly.

The Court of Appeal’s refusal to recategorise to Category A is consistent with that discipline. It preserves the integrity of the verdict–sentencing relationship and discourages “back‑door” re‑labelling of an incident as effectively murderous when the jury has declined to find that.

8. Complex Concepts Simplified

8.1 Causing death by dangerous driving: culpability vs harm

In this offence:

  • Harm is fixed: a person has died, so harm is always at the highest level.
  • Culpability measures how bad the driver’s behaviour was – from a short lapse just over the dangerous driving threshold (Category C) to very bad, deliberate, or highly reckless conduct (Category A).

The guideline uses listed factors to help judges decide which category the case falls in, then to choose a starting point and adjust up or down for aggravating and mitigating features.

8.2 The Category A factor: “deliberate decision to ignore the rules of the road …”

This is not intended to capture every deliberate breach of a traffic rule. Instead, as clarified in Muldoon:

  • It applies where a driver’s behaviour amounts to a gross and obvious disregard of basic road safety principles.
  • Examples given by the Court include:
    • racing another vehicle;
    • deliberately driving on the wrong side of the road; and
    • reversing for a substantial distance on a main road (para 24).

8.3 Attorney General’s “unduly lenient sentence” reference

This mechanism allows the Attorney General to ask the Court of Appeal to look again at a sentence that appears too low. However:

  • The Court does not ask: “What sentence would we have passed?” It asks: “Is the sentence so low that it falls outside the range of sentences a reasonable judge could have imposed?”
  • The Court will intervene only in cases of clear error or sentences that are far below the appropriate guideline range.

8.4 “Slip rule” hearing

A “slip rule” hearing allows a court to correct accidental errors in an order or sentence (for example, a miscalculated date or period) shortly after it is made. Here, the reference to a slip rule hearing (para 17) concerned the precise calculation of the period before an extended retest following disqualification, rather than the substantive length of the prison term.

8.5 Section 35A Road Traffic Act 1988 – extension of disqualification

When a court disqualifies a person from driving and also imposes a custodial sentence, section 35A of the Road Traffic Act 1988 ensures that the offender does not serve most of the disqualification while in prison.

The court can:

  • set a discretionary disqualification (here, 10 years), and
  • add an extension period (here, 2½ years) to reflect the time likely to be spent in custody,

so that the real time during which the offender is prohibited from driving in the community matches the court’s intended ban.

9. Conclusion

R v Muldoon [2025] EWCA Crim 1595 is an important decision in the law of dangerous driving and sentencing. It does not radically change the law but provides clarification and consolidation on two critical points:

  1. Scope of Category A culpability in causing death by dangerous driving:
    The Court confirms that Category A – particularly the factor “a deliberate decision to ignore the rules of the road and disregard the risk of danger to others” – is reserved for truly extreme and paradigmatic cases (racing, wrong‑side driving, prolonged reversing), not for every serious instance of deliberate dangerous driving. This ensures a principled distinction between Categories A and B and guards against inflationary categorisation.
  2. Limits of Attorney General’s “unduly lenient” references:
    By emphasising that s.36 addresses gross error and that appellate intervention is appropriate only where a sentence lies outside the reasonable range, the Court reinforces deference to the sentencing judge’s evaluative role – especially where that judge has heard a full trial and given detailed factual findings and candid reasons for guideline categorisation.

The decision also illustrates sound judicial practice in:

  • Respecting the jury’s verdict by sentencing on a factual basis compatible with the acquittal on murder and attempted murder;
  • Treating mental disorder cautiously in the context of impulsive, anger‑driven driving offences; and
  • Applying sentencing guidelines with both structure and flexibility, recognising that culpability ranges are guides, not mechanistic codes.

In the broader legal context, Muldoon helps to stabilise sentencing practice in causing death by dangerous driving cases, preventing over‑extension of Category A, and setting a clear expectation that Attorney General’s references are a corrective jurisdiction, not a routine means of recalibrating difficult but reasonable sentencing decisions.

Case Details

Year: 2025
Court: England and Wales Court of Appeal (Criminal Division)

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