Elezi ([2025] EWCA Crim 964): Re-affirming the “Incommensurability Principle” in Sentence Appeals for Kidnap and False Imprisonment

1. Introduction

In R v Elezi ([2025] EWCA Crim 964) the Court of Appeal (Criminal Division) revisited the difficult exercise of assessing the appropriate custodial term for kidnap and false imprisonment where, at the time of sentence, no definitive Sentencing Council guideline was in force. The case involved Albanian-linked drug dealers who abducted and held an associate for ransom to recover an alleged £40,000–£110,000 drug debt. The trial judge imposed a ten-year sentence on the applicant, Mr R. Elezi, for conspiracy to kidnap and conspiracy to falsely imprison, with no separate penalty for a cocaine possession count.

The key appellate issue was whether the ten-year term was manifestly excessive. In dismissing the renewed application for leave to appeal, the Court (Holgate LJ, giving the lead judgment) reaffirmed what this commentary labels the “Incommensurability Principle”: sentences in fact-sensitive offences such as kidnap cannot reliably be adjusted by mechanically comparing individual factors from previous cases because those factors are often incommensurable.

2. Summary of the Judgment

• The Court granted a short extension of time but refused leave to appeal against sentence.
• It endorsed the trial judge’s structured use of the nine Needham factors in the absence of a guideline.
• The Court rejected arguments that the violence was “minimal” or “accidental”, emphasising the 40-hour detention, ransom demands, planning, group activity and drug-dealing context.
• It held that even under the new (post-sentence) definitive guideline effective 1 April 2025, the case would attract at least category A2 harm/culpability, pointing to a 7-year starting point before significant aggravation, easily justifying ten years.
• Holgate LJ reiterated the limits of “case matching” and praised the sentencing judge’s “careful and well-measured” approach.

3. Analysis

3.1 Precedents Cited

1. R v Needham [2022] EWCA Crim 545; [2002] 2 Cr App R (S) 20
   • Provided nine factors for assessing seriousness in kidnap where no guideline exists.
   • The Court applied each factor methodically.
2. Attorney-General’s Reference Nos 102–103 of 2014 [2014] EWCA Crim 2922; [2015] 1 Cr App R (S) 55
   • Macur LJ observed that hostage-taking involving ransom generally attracts sentences “close to the 16-year starting point”, while even without ransom double-digit terms are common.
   • Elezi’s sentence (10 years) was situated within that continuum.
3. Post-decision reference: 2025 Sentencing Council Kidnap & False Imprisonment Guideline (effective 1 April 2025)
   • Though not retroactive, cited to confirm that the sentence would still fall well within guideline range (category A2).

3.2 Legal Reasoning

a) Structured Fact-Finding. The trial judge walked through the Needham factors: length of detention, planning, violence, use of weapons, ransom demands, group involvement, psychological harm, etc. The Court of Appeal endorsed this as a logical substitute for a guideline.

b) Incommensurability Principle. Holgate LJ stressed that “reading across” from one kidnap case to another is generally unhelpful because the constellation of factors varies widely and is rarely fully reported. Attempting to index-match factors (“less violence”, “shorter detention” etc.) ignores qualitative differences and overlap between culpability (planning, financial motive) and harm (duress, duration, injury).

c) Retrospective Use of New Guidelines. Counsel attempted to rely on the forthcoming guideline to demonstrate an allegedly lower starting point. The Court accepted it as illustrative but made clear it had no retroactive effect (Johnson principle). Even so, the guideline vindicated the original ten-year figure once aggravation was loaded on.

d) Aggravating Factors > Mitigation. Conspiracy, group activity, financial motive, organised drug dealing and permanent injury were all aggravating. Meaningful mitigation was absent beyond personal background. Accordingly, the ceiling of the category range (10 years) was warranted.

3.3 Impact on Future Cases

• Sentence Appeals: Reinforces courts’ unwillingness to overturn carefully reasoned kidnap sentences by mere cross-case comparison, unless a clear guideline mis-application or error of principle is shown.
• Needham Factors Survival: Confirms continued relevance of Needham analysis even after the 2025 guideline— judges may still cite it to structure reasoning where facts do not fit neatly into guideline boxes.
• Guideline Interaction: Establishes that post-sentence guidelines may be used confirmatively but not retroactively. Defence teams should be cautious about deploying new guidelines to argue “manifest excess” for historic sentences.
• Conspiracy as Aggravation: The Court’s explicit statement that conspiracy itself is an aggravating factor will likely be invoked in future multi-handed kidnap or false imprisonment cases.
• Drug-Related Kidnaps: Affirms that kidnaps embedded in organised drug crime attract the upper range of sentences irrespective of the exact quantum of violence.

4. Complex Concepts Simplified

• Kidnap vs. False Imprisonment: Kidnap entails taking or carrying away a person by force or fraud without lawful excuse; false imprisonment involves the unlawful restriction of a person’s freedom of movement. A kidnap often morphs into false imprisonment once the victim is detained.
• Conspiracy: An agreement between two or more people to commit an unlawful act. Even if the contemplated offence is incomplete, the agreement alone constitutes the crime.
• Manifestly Excessive: On appeal, a sentence is quashed only if it is so obviously high that no reasonable judge, properly directing themselves, could have imposed it. It is a high threshold—mere disagreement is insufficient.
• Starting Point vs. Range: Sentencing guidelines set a starting point (baseline for a notional offender after trial) and a range (upper and lower limits). Aggravating and mitigating factors move the sentence within or outside that range.
• Incommensurable Factors: Some aspects of seriousness—e.g., 40-hour detention vs. blunt force trauma—are qualitatively different and cannot be traded off with mathematical precision. The Court calls them “incommensurable”.

5. Conclusion

Elezi clarifies that in kidnapping and false imprisonment sentencing: (1) judges can, and should, perform a structured analysis (such as the Needham factors) when guidelines are absent or do not squarely fit; (2) sentence appeals built upon simplistic case comparison will rarely succeed because factors are incommensurable; (3) new guidelines cannot retrospectively invalidate a proportionate sentence, though they may confirm it; and (4) conspiracy, ransom demands, prolonged detention and an organised-crime backdrop firmly anchor such offending in double-digit custodial territory. The decision strengthens judicial discretion while providing practitioners with a clearer roadmap: unless there is a demonstrable error of principle, ten-year sentences for planned, financially motivated kidnap-for-ransom operations are here to stay.