McCann (R v): Discretion in Unduly Lenient Sentencing under Section 36 CJA 1988

Introduction

This appeal arises from an application by His Majesty’s Solicitor General under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient the Crown Court sentence imposed on the respondent, Mr Conor McCann. The respondent, then aged 20, pleaded guilty in April 2022 to causing grievous bodily harm with intent (s.18, Offences Against the Person Act 1861) and assault occasioning actual bodily harm (s.47, 1861 Act). Sentencing was significantly delayed until January 2025, by which time Mr McCann was 23. HHJ St John-Stevens passed concurrent suspended custodial sentences totaling two years, with unpaid work and rehabilitation requirements. The key issue on appeal was whether the principal sentence under s.18 was unduly lenient and should be increased or left undisturbed in light of the statutory principles governing referrals.

Summary of the Judgment

The Court of Appeal granted leave to refer but, exercising its discretion, declined to interfere. The court accepted that the notional post-trial sentence may have been too low—arguably deserving at least 3½ to 4 years before mitigation—but held that an increase would not serve the public interest given the respondent’s youth, the unjustified 14-month delay to sentence, his flawless conduct since plea, ongoing rehabilitation, and the severe collateral impact of immediate custody on his family, employment and housing. The court reaffirmed that referrals under s.36 should be reserved for exceptional “gross errors” and where the sentence falls outside the reasonable range.

Analysis

Precedents Cited

• Attorney-General’s Reference (No 4 of 1989) (1990) 90 Cr App R 366: Established that appellate interference is discretionary and governed by whether a sentence falls outside the reasonable range.
• Attorney-General’s Reference (R v Egan) [2022] EWCA Crim 1751: Reaffirmed that leave to refer under s.36 CJA 1988 should be granted only in exceptional cases of gross error, not borderline ones.
• Attorney-General’s Reference No 132 of 2001 (Bryn Dorian Johnson) [2002] EWCA Crim 1418: Emphasised the public interest in maintaining confidence by correcting substantial departures from sentencing norms.
• R v Stocker [2013] EWCA Crim 1993: Permitted disregard of purely technical sentencing defects absent substantive prejudice.

These authorities collectively define the framework for s.36 referrals: deference to the trial judge’s assessment, a focus on sentences outside a reasonable range, and discretionary restraint.

Legal Reasoning

The court’s reasoning unfolded in three stages:

1. Assessment of Guideline Range: The definitive guideline for s.18 offences categorises culpability B/harm 2, with a starting point of 5 years (range 4–7). HHJ St John-Stevens reduced the notional sentence to 3 years before early-plea credit, thereby allowing a 2-year suspended term. The Solicitor General argued the downward adjustment was excessive and wrongly enabled suspension.
2. Principles of Unduly Lenient Referrals: Invoking Egan and Attorney-General’s Reference (No 4 of 1989), the court stressed that intervention is warranted only for sentences manifestly outside the judge’s reasonable range—“gross errors” rather than fine gradations.
3. Discretion in Light of Exceptional Circumstances: Even if the notional sentence could have been higher, the court exercised discretion not to increase. It gave weight to:
   • The respondent’s immaturity at age 19 and lack of prior convictions.
   • The 14-month delay between plea and sentence, which aggravated mental health impact.
   • His exemplary conduct post-plea, engagement with rehabilitation, and caring responsibilities (partner and infant daughter).
   • The severe collateral consequences of immediate custody on family, employment, and housing stability.

Impact

This decision clarifies and deepens the appellate approach to unduly lenient referrals:

• Post-sentence developments—such as compliance with sentence requirements and positive community ties—may legitimately influence the Court of Appeal’s discretion in declining to increase a referral.
• Youth, delay, and collateral family/employment repercussions are valid factors, reinforcing that sentencing and referral analysis can extend beyond the moment of sentencing to the current real-world consequences.
• The ruling reaffirms that s.36 interventions must be reserved for clear departures from guideline norms, preserving deference to first-instance judges.

Future appellants and practitioners should note the heightened importance of demonstrating exceptional circumstances when challenging a lenient sentence.

Complex Concepts Simplified

• Section 36 CJA 1988: Allows the Attorney General to refer to the Court of Appeal any sentence believed to be unduly lenient.
• Notional Sentence: The sentence a judge would impose absent any credit for early guilty plea; used as a baseline before reductions.
• Definitive Guideline Categories: A structured framework (culpability and harm) setting starting points and ranges for offences.
• Gross Error: A sentencing misstep so far outside the permissible range that intervention is justified.
• Collateral Consequences: Secondary impacts of imprisonment (e.g., job loss, family breakdown) considered in discretionary relief.

Conclusion

R v McCann reiterates that while the Court of Appeal must ensure consistency and public confidence in sentencing, referrals under s.36 CJA 1988 lie at the high end of scrutiny. Even where a trial judge’s notional baseline may arguably have been set too low, the court will not increase a sentence when exceptional personal and post-sentence factors outweigh the incremental benefit of custody. This decision underscores the balanced interplay between adherence to guideline norms and measured judicial discretion sensitive to real-world outcomes.