Informal Non‑Goodyear Sentencing Indications Can Create a Legitimate Expectation Requiring Appellate Remedy

1) Introduction

This Court of Appeal (Criminal Division) decision, Haslam, R. v [2026] EWCA Crim 1125 (Whipple LJ, McGowan J, Eady J), concerns when appellate intervention is justified because a sentencing judge has earlier indicated (outside the Goodyear procedure) that immediate custody will not follow, but later imposes an immediate custodial sentence.

The appellant (a sole director of a building company) pleaded guilty to fraudulent trading, having continued to trade while insolvent and taking advance payments from multiple householders for work largely not done or not done adequately. The Crown Court imposed 28 months’ immediate imprisonment. The appeal challenged (i) refusal to suspend as manifestly excessive/wrong in principle, and (ii) unfairness arising from the judge’s earlier indications at Plea and Trial Preparation Hearings (PTPHs) that the appellant would not go to prison.

The Court of Appeal held that immediate custody was open to the judge and not manifestly excessive, but that the earlier indications created an expectation giving rise to a “sense of injustice”. To remedy that unfairness, the Court suspended the 28-month term and attached requirements.

2) Summary of the Judgment

  • Sentence appeal allowed. The Court quashed the immediate custodial sentence and substituted a 28-month suspended sentence order for 2 years.
  • Requirements: (i) rehabilitation activity requirement for 10 days; (ii) unpaid work of 160 hours.
  • Key holdings:
    1. Where a judge’s earlier remarks about likely sentence are not Goodyear indications (i.e. not given as a plea inducement), they may still create an expectation in the defendant.
    2. Even if an immediate custodial sentence is not manifestly excessive, the Court may adjust the outcome to remedy unfairness caused by departure from that expectation, particularly where the case lies close to the border between immediate custody and suspension.
    3. The appropriate remedy is fact-sensitive: it may be to impose the earlier indicated outcome (as in one line of authority) or to adjust the overall outcome in another way (including suspension), aiming to “do justice as best we can”.

3) Analysis

3.1 Precedents Cited

(a) R v Gillam 2 Cr App R (S) 267

In R v Gillam 2 Cr App R (S) 267, the sentencing judge postponed sentence for a pre-sentence report specifically to explore a non-custodial option (community service). When the report supported that option, the judge nevertheless imposed immediate custody. The Court of Appeal held that the postponement in those circumstances created an expectation; if the alternative is found satisfactory, “the court ought to adopt the alternative”, otherwise a “feeling of injustice is otherwise aroused”. The custodial sentence was quashed and replaced with community service.

Influence in Haslam: Gillam supplies the foundational idea that procedural steps and judicial signals can create a legitimate expectation in a defendant’s mind, and that departing from it may require appellate correction to avoid injustice—independent of the usual “manifestly excessive” test.

(b) R v CD [2018] EWCA Crim 571

In R v CD [2018] EWCA Crim 571, the judge expressed (with a caveat of “no promises”) that he was minded to a non-custodial disposal and adjourned for a report. Despite a favourable report, immediate custody followed. The Court of Appeal identified a “legitimate sense of injustice” and, although accepting that the offending merited 2 years’ immediate imprisonment, the Court suspended the term.

Influence in Haslam: CD is the closest analogue. It shows appellate willingness to suspend a sentence even where immediate custody is deserved in principle, because fairness requires giving effect to the expectation created by the judge’s earlier stance.

(c) [2 005] EWCA Crim 888 (Goodyear) and its later treatment

[2 005] EWCA Crim 888 (commonly known as Goodyear) governs formal sentence indications given in response to a request and as part of plea decision-making. The judgment in Haslam treats Goodyear as defining a strict, regulated category: where an indication is sought and given to assist a plea decision, it must follow prescribed safeguards and procedure (also reflected in the Criminal Procedure Rules and Criminal Practice Directions).

(d) AG's Ref (R v AB, CD, EF and GH) [2021] EWCA Crim 1959, [2022] 2 Cr App R (S) 17

In AG's Ref (R v AB, CD, EF and GH) [2021] EWCA Crim 1959, [2022] 2 Cr App R (S) 17, the judge volunteered (informally) that guilty pleas would attract suspended sentences. Suspended sentences were imposed, and the Attorney General referred them as unduly lenient. The Court emphasised that, outside the Goodyear framework and relevant rules, it is “not lawful to give any other kind of indication”. The Court substituted immediate custody.

Influence in Haslam: AB is used to delineate the boundary: Goodyear regulates plea-induced indications, but does not exhaust the law on unfairness caused by other judicial indications. Haslam distinguishes AB because there was no suggestion the plea was induced by the indication.

(e) R v Turner [1970] 2 QB 321

R v Turner [1970] 2 QB 321 preserves the narrower power for a judge to indicate, regardless of plea, that a sentence will or will not take a particular form (e.g. custody/non-custody). AB treats Turner-type indications as a limited surviving category, distinct from Goodyear plea indications.

Influence in Haslam: Turner provides context for understanding what judges may lawfully say about likely outcomes. Haslam’s concern is less about legality of giving an indication and more about fairness consequences of departing from it after it has been clearly conveyed.

(f) R v Keeling (as cited in the judgment)

In R v Keeling, a judge indicated a suspended sentence if a guilty plea were entered. The defendant pleaded guilty and received a suspended sentence; the sentence was later challenged as unduly lenient. The Court recognised the defendant’s likely sense of unfairness but emphasised that the appropriate remedy for improper judicial conduct inducing plea would generally be a conviction appeal. Nonetheless, in addressing unfairness at sentence stage, the Court applied a more generous reduction, stressing it was an “effort by the court to do justice” and not a general precedent on plea discounts.

Influence in Haslam: Keeling supplies the remedial principle: where unfairness exists, the appellate court has a flexible discretion in crafting a just outcome, without turning that discretion into a mechanical rule.

3.2 Legal Reasoning

(a) Classification of the sentencing indication problem: Goodyear vs non-Goodyear

The Court drew a sharp analytical distinction:

  • Goodyear-line cases (plea inducement): indications given to assist a defendant in deciding whether to plead guilty. These are tightly regulated (the judgment references Crim PR 3.31 and the approach described in AB).
  • Non-Goodyear indications: comments about sentence not connected to inducing a plea. Here, “the strict approach in Goodyear and the associated Crim PR does not apply”.

On the facts, the Court accepted the appellant’s guilty plea was driven by resolution of whether his spouse would be prosecuted, not by any sentence indication. Accordingly, the judge’s earlier remarks were treated as non-Goodyear.

(b) Two-stage appellate assessment: (1) excessiveness; (2) unfairness

The Court approached the appeal in two distinct questions.

Stage 1: Was immediate custody manifestly excessive/wrong in principle?

Applying ordinary sentencing appellate restraint, the Court accepted:

  • There were multiple factors pointing toward suspension (rehabilitation prospects, low reoffending risk, personal mitigation, caring responsibilities).
  • Nevertheless, the case involved serious fraudulent trading with “devastating” victim impact, and immediate custody was “properly open to the judge”.

The Court expressly rejected the submission that the immediate custodial sentence was manifestly excessive. This is important: the appeal succeeded not because the custodial threshold was wrongly crossed, but because of a separate fairness concern.

Stage 2: Did the earlier indications create unfairness requiring a remedy?

The Court held that the judge’s remarks at the March and May PTPHs conveyed—overall—that the appellant would not go to prison. Even with some caveats, the message created an expectation that lasted about three months and was “more than merely momentary”.

The Court accepted the judge was entitled to change his mind, especially after hearing live victim evidence and fuller submissions. Critically, however, it noted the change was not driven by genuinely new information (victim statements were largely available earlier), but by improved appreciation of seriousness and impact over time. That dynamic sharpened the fairness concern: the system had allowed the expectation to settle, then withdrew it at the final moment.

The result was a “sense of injustice”. Drawing on R v CD [2018] EWCA Crim 571 and R v Gillam 2 Cr App R (S) 267, the Court treated that injustice as something it could and should remedy even where the sentence was otherwise within range.

(c) Remedy: why suspension (and why requirements)?

Having found unfairness, the Court emphasised that remedy is discretionary and fact-specific (CD vs Keeling illustrate different responses).

The decisive feature here was the borderline nature of the custody/suspension decision: even after the judge had “fully got to grips with the case”, a suspended sentence remained “within the range of options properly open”. Therefore, to “do justice as best we can”, the Court chose the remedial option that most directly aligned with the earlier indication—suspension—while ensuring punishment and public protection through active requirements.

The Court adopted (and strengthened) the pre-sentence report’s suggested approach:

  • Rehabilitation activity requirement (10 days): aimed at addressing behaviour, insight, and reducing reoffending.
  • Unpaid work (160 hours): increased above the report’s recommendation to ensure punitive weight consistent with the seriousness of the fraud.

3.3 Impact

(a) Practical impact on sentencing practice

  • Judicial caution in “informal” indications: even outside Goodyear, firm statements that custody will not follow can generate an expectation capable of grounding an appellate remedy. Judges may therefore be more guarded at PTPHs when discussing likely disposal.
  • Importance of contemporaneous reminders: the Court noted both counsel knew of the earlier indications but did not remind the judge at sentencing, contributing to difficulty. While not determinative, the case underlines the practical need to address prior indications on the record before sentence is passed.
  • Borderline cases are vulnerable to fairness-based adjustment: where suspension is legitimately available, a clear earlier signal against immediate custody increases the likelihood of appellate intervention if the final outcome abruptly shifts.

(b) Doctrinal impact: separating “error” from “unfairness”

A notable feature is the Court’s willingness to grant relief without finding the sentence excessive. The judgment reinforces a dual track in sentencing appeals:

  1. Conventional review (range, guideline application, principle, manifest excess).
  2. Fairness-based review (legitimate expectation / sense of injustice arising from the court’s own earlier communications), with a tailored remedy.

This does not collapse sentencing into “promissory” enforcement of early remarks; the Court reaffirmed judges may change their minds. But it recognises that fairness may require the appellate court to absorb some of the cost of that change where the court itself generated the expectation and the sentencing options remain legitimately open.

4) Complex Concepts Simplified

4.1 Fraud guideline categories (e.g. “B2” and “B1”)

Under Sentencing Council fraud guidelines, courts assess: harm (often by amount of money and impact) and culpability, producing categories with starting points and ranges. Here, the judge treated the case as B2 initially (starting point 3 years), but moved it to B1 (starting point 5 years) due to “high impact” on victims. The Court of Appeal did not disturb that evaluative assessment; the appeal turned on suspension/fairness.

4.2 “Goodyear indication” vs informal sentencing comments

A Goodyear indication is a formal, rule-governed indication of the maximum sentence if a guilty plea is entered at that stage, requested by the defence to inform plea choice. Informal comments about likely sentence—especially at case management hearings—may be lawful, but are not protected by Goodyear’s procedural framework and can still create fairness issues if expressed too definitively and later reversed.

4.3 Suspended sentence order

A suspended sentence is a custodial term that is not immediately served, provided the offender complies with conditions for an operational period. Breach can trigger activation of custody. In this case, the custodial term remained 28 months, but the Court substituted community-based requirements to deliver punishment and rehabilitation without immediate imprisonment.

4.4 “Slip rule”

The “slip rule” (here referenced as section 385 of the Sentencing Act 2020) allows correction of certain errors in sentencing. It did not provide a route to change the sentence merely because the judge had earlier indicated a different approach; hence the issue came to the Court of Appeal.

5) Conclusion

Haslam, R. v [2026] EWCA Crim 1125 establishes a clear, practical principle: even when a sentence is within range and not manifestly excessive, the Court of Appeal may intervene where the sentencing process has produced a legitimate sense of injustice because a judge’s earlier, non-Goodyear indication created a settled expectation that immediate custody would not be imposed.

The judgment also demonstrates the Court’s remedial flexibility. Rather than mechanically enforcing the earlier indication, it selected a disposal that both addresses unfairness and reflects seriousness: a suspended sentence with robust requirements, increased unpaid work, and the continuing threat of activation upon breach.