Introduction

This commentary analyses the judgment of the England and Wales Court of Appeal (Criminal Division) in R v Cromwell [2025] EWCA Crim 1315, a sentence appeal that squarely addresses two recurring issues in contemporary sentencing practice: when (if at all) caring responsibilities require a court to suspend an otherwise appropriate immediate custodial sentence; and whether a restraining order prohibiting proximity to a victim’s home by a fixed radius (here, 100 metres) is too vague or impracticable to be valid.

The appellant, a 51-year-old woman of effective good character, pleaded guilty on a full facts basis to two counts of assault occasioning actual bodily harm (s.47 Offences against the Person Act 1861) arising from a planned, group attack on her estranged husband and his new partner inside the partner’s home. The sentencing judge categorised the conduct as A1 (high culpability, highest harm) under the Sentencing Council’s Assault guideline, identified the appellant as the ringleader, and imposed 12 months’ immediate custody (concurrent on both counts) with a five-year restraining order. Twenty-five per cent credit was given for the guilty plea at PTPH.

The appeal did not contest the length of the term. It focused on suspension, invoking the appellant’s extensive caring responsibilities for her youngest children (two with diagnosed additional needs) and further relied on post-sentence material. A secondary ground challenged the practical enforceability of the 100‑metre radius condition in the restraining orders.

The Court of Appeal granted leave, treated the matter as the full appeal, and dismissed it. In doing so, it reaffirmed core principles on the interplay between Article 8 ECHR and the “cusp of custody” analysis (Petherick; Foster), clarified the appellate standard of review for suspension decisions (Atkinson), and confirmed the validity and practicality of fixed-distance conditions in restraining orders.

Summary of the Judgment

• Standard of review: The Court reiterated that it is not free to substitute its own view for that of the sentencing judge on suspension; the question is whether the decision not to suspend fell outside the range of reasonable responses (R v Clayton Atkinson [2023] EWCA Crim 991).
• Seriousness and “cusp” analysis: The offending was a planned, group assault in the victims’ home, with the appellant as ringleader. This was not a case on the cusp of custody. Immediate imprisonment was plainly appropriate despite good character and caring responsibilities.
• Article 8/caring responsibilities: While full weight must be given to the impact of custody on dependants (Petherick; R v Carla Foster [2023]), the interference was proportionate here. The judge had already substantially reduced the sentence length to reflect the appellant’s caring role; suspension was not compelled. Post-sentence material described potential harms in generic terms and lacked concrete evidence of exceptional or drastic consequences.
• Health issues: The appellant’s medical conditions, though sympathetically noted, were manageable in custody and did not justify release. In any event, home detention curfew was imminent.
• Restraining orders: The 100‑metre exclusion zones around any address where the appellant knows or suspects the victims reside were upheld as common, clear, and enforceable. Such radii prevent harassment in the vicinity and are not impractical. No amendment was warranted.
• Result: Appeal against sentence dismissed; restraining orders maintained. The 12-month immediate custodial sentence stands.

Detailed Analysis

1) Precedents Cited and Their Influence

R v Clayton Atkinson [2023] EWCA Crim 991

The Court underscored Atkinson at [16]–[17]: on sentence appeals, especially those challenging a judge’s decision whether to suspend, the appellate court does not re-sentence. It asks whether the refusal to suspend was “outside the range of answers to which [the judge] could properly have come.” This deferential standard is central. It framed the Cromwell appeal: even if another judge might have suspended, the question is whether non-suspension was a legally impermissible outcome. The Court held it was well within the permissible range.

R v Petherick [2012] EWCA Crim 2214

Petherick remains the leading domestic authority on sentencing offenders with caring responsibilities in light of Article 8 ECHR (right to family life). It establishes a structured approach: (1) Is there an interference with family life? (2) Is the interference in accordance with the law and in pursuit of a legitimate aim? (3) Is the interference proportionate? It further recognizes that, particularly where the case is “on the cusp of custody,” the impact on innocent children can sometimes tip the balance in favour of suspension.

In Cromwell, the Court explicitly applied this framework. Questions (1) and (2) were straightforwardly answered “yes,” as in most criminal cases. The heart of the analysis was proportionality in question (3). Cromwell clarifies that the Petherick “tipping” principle is fundamentally tethered to “cusp” cases; where the offending is significantly above the custody threshold (as here), the balancing exercise does not compel suspension, even for offenders with substantial caring roles.

R v Carla Foster [2023] EWCA Crim 1196

Foster reaffirmed the necessity to give full weight to caring responsibilities and Article 8, and it is notable because the Court of Appeal there substituted a suspended sentence in exceptionally sensitive circumstances. Cromwell distinguishes, without criticising, Foster’s outcome by emphasising context. Foster involved unique factual and moral complexities, a powerful mitigation matrix, and a case perceived as on or close to the cusp. Cromwell, by contrast, involved a premeditated group assault in the home, escalating seriousness well beyond the cusp. The Court thus confirms that Foster does not herald a general expectation of suspension when caring responsibilities are present; everything turns on seriousness, the cusp assessment, and concrete evidence of disproportionate impact.

2) The Court’s Legal Reasoning

a) Seriousness, guideline categorisation, and the “cusp of custody”

The sentencing judge assessed the offending under the Assault guideline as A1: high culpability/highest harm. Indicators included planning, group activity, invasion of the victims’ home, the appellant’s ringleader role, the recruitment of her adult children and a third party, sustained aggression, and the terror inflicted. The starting point was 2 years 6 months’ custody, with a range of 1 year 6 months to 4 years for category A1 ABH. On those facts, the judge concluded that immediate custody was inevitable and that the case was “not on the cusp of custody.”

The Court of Appeal agreed: a planned, multi-handed home attack places the offending well clear of the margin where suspension might be tipped by mitigation. This set the baseline for all subsequent analysis, including Article 8 balancing.

b) Mitigation and sentence reduction versus suspension

Even while finding immediate custody unavoidable, the judge imposed a markedly mitigated term of 12 months—less than half the A1 starting point—explicitly to reflect the appellant’s caring responsibilities. The Court of Appeal approved this approach: substantial mitigation can and often should be reflected in the length of the custodial term rather than in its suspension where the seriousness otherwise requires custody. Cromwell therefore elucidates a practical distinction: mitigation can reduce the quantum of custody; it does not automatically change the modality (immediate vs suspended) unless the case is at or near the cusp.

c) Article 8 proportionality and evidential sufficiency

The Court accepted that custody interfered with the family life of the appellant’s children, and that such interference is a core consideration. However, proportionality turned on concrete impact. The materials included a pre-sentence report and a recent probation report emphasising that the appellant played an irreplaceable caring role and outlining potential harms (emotional strain, school absences, behavioural deterioration, family fragmentation). Yet those harms were presented in general terms without specific, evidenced, exceptional consequences post-sentence. Moreover, an adult sibling had stepped in, supported by wider family; accommodation remained available; and there was no evidence of immediate destitution or homelessness.

In that evidential context, the Court held that the judge’s refusal to suspend was within the reasonable range. The decision also reflects sensitivity to proportionality over time: the appellant was due to be released on home detention curfew within weeks, further tempering claims of continuing disproportionality.

d) Health conditions

The Court noted medical issues (hypertension, hypercholesterolemia, a potential cardiac defect pending review, eye surgery waiting list, restless leg syndrome, and mild anxiety/depression), but concluded these could be managed in custody and were not exceptional. Cromwell reiterates the high threshold for medical grounds to displace immediate custody.

e) Restraining orders and proximity conditions

The restraining orders, made for five years, contained two relevant limbs: (i) no contact, directly or indirectly, with either victim; and (ii) not to go within 100 metres of any address where the appellant knows or suspects the victims live. The appellant argued the 100‑metre radius was impracticable to measure and enforce; a prohibition on attending the address itself was said to be sufficient.

The Court firmly rejected that submission. Fixed-distance conditions are commonplace precisely because they protect against intimidation or harassment in the vicinity, not just at the doorstep. They are not too vague: offenders and police can reasonably judge a 100‑metre perimeter without maps. Cromwell thus endorses the continued use and enforceability of radii in restraining orders where proportionate and necessary to protect victims.

3) Impact and Significance

a) Caring responsibilities and suspension: sharpening the threshold

• Cromwell underscores that caring responsibilities—even profound, long-standing ones—do not, by themselves, compel suspension where the offending crosses well beyond the custody threshold. The decisive pivot remains the “cusp of custody.”
• Practitioners should expect courts to distinguish between: (i) mitigation affecting the length of custody; and (ii) mitigation converting immediate custody to suspension. The former may be substantial; the latter requires that the case be genuinely near the cusp and that the Article 8 harms be concrete, evidenced, and exceptional.
• Post-sentence material must be specific. Generic forecasts of harm to dependants are unlikely to displace an otherwise proper decision to impose immediate custody, especially if a replacement care plan exists and essential needs are met.

b) Article 8 proportionality: practical evidential lessons

• Where a sentence appeal relies on Article 8, evidence should identify precise consequences: missed medical or therapy appointments for dependants; confirmed school absences; deterioration in mental health attested by professionals; breakdown of care arrangements; imminent risk of homelessness or destitution; or other concrete markers of disproportionality.
• Coordination with Children’s Services, healthcare providers, schools, and carers to produce contemporaneous, detailed reports will materially impact proportionality assessments. Cromwell shows that speculation, however plausible, is insufficient.

c) Appellate deference on suspension decisions

• Atkinson’s “range of reasonable responses” standard is determinative. If a judge carefully weighs Article 8 factors and explains why the case is not on the cusp, the Court of Appeal will rarely intervene. Cromwell is a reminder that even robust mitigation does not equate to a right of suspension.

d) Restraining orders: confidence in fixed-distance terms

• Cromwell confirms the legitimacy and practicality of fixed-radius prohibitions in restraining orders. Defence arguments based on measurement impracticability are unlikely to succeed. To challenge such conditions, arguments should focus instead on necessity and proportionality to the particular risks, not on enforceability per se.
• For victims and policing, Cromwell supports a protective perimeter model that prevents “lurking” or proximity-based intimidation, not only doorstep attendance.

e) Sentencing practice: measured mitigation through term reduction

• The judgment validates a pragmatic approach: account for caring responsibilities through a materially reduced custodial term, without suspending, where offending seriousness makes immediate custody imperative. This may be especially appropriate in violent, planned group offending or home-invasion contexts.

Complex Concepts Simplified

“Cusp of custody”: A shorthand for cases that sit at the margin where a court could, with justification, either impose immediate custody or suspend the sentence. If the case is not at that margin—because the seriousness clearly demands immediate custody—mitigation (including caring responsibilities) usually reduces the length, not the modality, of the sentence.

Suspended sentence: A custodial sentence of two years or less (s.189 Criminal Justice Act 2003) that is not activated immediately, subject to the offender complying with conditions during an operational period. The Sentencing Council’s “Imposition of community and custodial sentences” guideline lists factors indicating when suspension may be appropriate (e.g., strong personal mitigation, realistic prospect of rehabilitation, and significant harmful impact on dependants) but only where immediate custody is not unavoidable.

ABH category A1: Under the Assault guideline for s.47 OAPA, category A indicates high culpability (e.g., planning, group activity, leading role), and harm 1 indicates the highest harm bracket. For A1, the starting point is 2 years 6 months’ custody, with a range of 1 year 6 months to 4 years.

Article 8 ECHR: Protects the right to respect for private and family life. Sentencing interferes with family life, but that interference is often lawful and in pursuit of legitimate aims (e.g., crime prevention). The key is proportionality: courts must weigh the offender’s rights and the impacts on dependants against the seriousness of the offence and the public interest.

Restraining order with a distance condition: A court order (often under the Protection from Harassment Act 1997) prohibiting specified conduct to protect victims. A fixed-radius condition bars the offender from being within a defined distance (e.g., 100 metres) of a victim’s home, preventing intimidation or harassment in the surrounding area. Cromwell confirms such conditions are sufficiently clear and enforceable.

Home Detention Curfew (HDC): An early release scheme allowing certain prisoners to be released before the halfway point of their sentence to an approved address under curfew and electronic monitoring, subject to eligibility and risk assessment. Its imminence can be relevant to proportionality arguments but will rarely, by itself, justify allowing a sentence appeal.

Conclusion

Cromwell is an important reaffirmation and clarification in two respects. First, it refines the practical application of Petherick and Foster: caring responsibilities, even where profound and longstanding, do not compel a suspended sentence unless the case is genuinely on the cusp and the Article 8 harms are concrete, evidenced, and exceptional. The judgment emphasises that mitigation may justifiably be reflected by a significant reduction in custodial term without converting the sentence to suspension where seriousness makes immediate custody inevitable.

Second, Cromwell fortifies the legitimacy of fixed-distance restraining orders. A 100‑metre exclusion zone is neither vague nor impractical; it offers necessary protection against intimidation in the vicinity and is capable of being understood and enforced in everyday policing.

In appellate terms, Cromwell reiterates the deference owed to a sentencing judge’s evaluative decision on suspension: the Court of Appeal will not interfere unless the decision falls outside the range of reasonable responses. For practitioners, the case delivers clear guidance: in seeking suspension on Article 8 grounds, marshal specific, contemporaneous evidence of actual harm to dependants; where offending is significantly above the custody threshold, focus on term mitigation rather than expecting suspension. For victims and public protection, Cromwell provides reassurance that robust proximity-based restraining orders will be upheld.

Key takeaway: Cromwell confirms that the “cusp of custody” remains the gateway through which Article 8 caring-responsibility arguments must pass to achieve suspension; otherwise, their principal function is to temper the length—not the immediacy—of custody. And when it comes to victim protection, distance-based restraining orders are here to stay.