Post-Offence Conduct as a Mitigation-Nullifier – A Commentary on R v Ali [2025] EWCA Crim 870

Introduction

R v Ali [2025] EWCA Crim 870 is a reference by the Solicitor General under s.36 Criminal Justice Act 1988, challenging the leniency of a sentence imposed for causing death and serious injury by dangerous driving. The Court of Appeal, Criminal Division, not only increased the custodial term from four years to six years and four months but, more significantly, articulated a refined approach to how post-offence conduct interacts with mitigation—particularly youth and expressions of remorse—under the new Sentencing Council guideline that followed the statutory increase of the maximum penalty to life imprisonment.

Summary of the Judgment

The Court granted leave and held the original sentence “unduly lenient.”
Categorised the dangerous driving as culpability A despite only one guideline factor (gross speed) being present.
Set a notional starting point of 10 years, uplifted to 12 years to reflect multiple victims (one fatality, one serious injury, one endangered passenger).
Applied a 33⅓ % reduction (rather than 50 %) for the offender’s age and personal mitigation, settling at 8 years.
Allowed the same 20 % guilty-plea discount as the sentencing judge, producing 76 months (6 years 4 months).
Adjusted the driving disqualification to eight years and two months to account for extra custody, but otherwise left ancillary orders intact.
Clarified that post-offence offending does not alter culpability categorisation, yet does erode mitigation such as remorse or good character.

Analysis

Precedents Cited

R v Darrigan [2017] EWCA Crim 169
Cited by the sentencing judge as limiting reliance on subsequent offending to aggravate culpability. The Court of Appeal clarified that Darrigan merely prevents post-index offences from inflating the starting point; it does not preclude the court from using them to decide how much mitigation (e.g., remorse, rehabilitation) should be accepted.
R v McDonnell [2021] EWCA Crim 281
Relied upon for the proposition that later offending, although not a “previous conviction” under s.65 Sentencing Act 2020, remains relevant to the disposal (final sentence). The present court endorsed this reading, thereby embedding the principle into the context of dangerous-driving fatalities.
Sentencing Council Guideline (Causing Death by Driving, 2023)
This was the first reported decision to consider the guideline after the maximum penalty for causing death by dangerous driving was raised to life imprisonment (Police, Crime, Sentencing & Courts Act 2022). The case provides practical guidance on:
- When a single culpability A factor suffices for the category.
- How to calibrate uplifts for multiple victims within one count and a concurrent serious-injury count.
- The correct credit for youth under the adult guideline.

Legal Reasoning

The Court adopted the step-by-step methodology prescribed by the guideline:

Culpability: The gross excess speed (60+ mph in a 30 mph zone, wet, tram tracks) constituted a deliberate disregard for road safety, justifying Category A. The absence of alcohol/drugs, racing, or police pursuit did not demote the offence.
Starting Point & Range: Having selected Category A (12-year starting point; 8–18-year range), the Court tailored the starting point to 10 years due to a single culpability A factor.
Aggravating Features: One death plus serious injury to another warranted an uplift to 12 years. The risk posed to the uninjured passenger was also acknowledged but not double-counted.
Mitigation:
- Youth (18 at offence; 20 at sentence) – led to a one-third, not one-half, reduction.
- Expressions of remorse – neutralised by the offender’s continuing road-traffic offences, which demonstrated lack of reformation.
Plea Discount: 20 % (late Stage 2 plea) – unchanged from the Crown Court.
Dangerousness & Extended Sentence: Although the offender met the statutory test for dangerousness, the Court respected the sentencing judge’s reluctance to impose an extended sentence on a young defendant.

Impact of the Decision

Clarifies Post-Offence Conduct: Establishes that subsequent misconduct can “wholly undermine” mitigation such as remorse and positive character, even if it cannot aggravate culpability itself. Practitioners must now prepare to address clients’ behaviour up to the point of sentence.
Youth Discounts Calibrated: Signals that a 50 % reduction for an 18-year-old adult offender will be exceptional. One-third is a more realistic ceiling where culpability is high.
Guideline Interpretation: Offers the first appellate calibration of the new life-maximum guideline, providing benchmarks for reviewers, sentencers, and advocates.
Driving Disqualifications: Re-affirms that extensions must reflect actual custodial time, rejecting the prosecution’s argument for longer bans simply because the term of incarceration increases.
Unduly Lenient Reviews: Demonstrates a robust stance by the Court of Appeal where Sentencing Council guidance is under-applied, particularly in motoring fatalities involving young drivers.

Complex Concepts Simplified

s.36 Criminal Justice Act 1988 referral: Allows the Attorney or Solicitor General to ask the Court of Appeal to increase a Crown Court sentence deemed “unduly lenient.” It is not an appeal by the prosecution against conviction.
Starting Point vs. Range: In guidelines, the starting point is the midpoint for a case with no mitigations or aggravations; the range identifies permissible movement up or down.
Dangerousness Provisions: Where the court deems the offender a significant risk of serious harm (Sentencing Code ss.308–314), it may impose an extended sentence. Youth can temper that outcome.
Culpability Factors: Objective features of the driving (speed, alcohol, racing) decide the category. They are distinct from personal mitigation like age.
Credit for Guilty Plea: Up to 33⅓ % if the plea is at the first opportunity; later pleas attract less. Here, 20 % reflected a stage-post indictment plea.
Extension to Driving Ban: Under s.35 Road Traffic Offenders Act 1988, the disqualification must extend to cover half the custodial term so that the offender cannot drive immediately upon release.

Conclusion

R v Ali is a pivotal authority on the sentencing of fatal-road-traffic offences in the post-2023 guideline era. The Court of Appeal emphasised that:

Excess speed alone can anchor a case firmly in Culpability A.
Youth, while significant, will rarely justify halving an otherwise proportionate sentence in serious offending.
Post-offence misconduct is a powerful rebuttal to claims of remorse and may erode personal mitigation to a substantial degree.
Disqualification periods must be recalculated to correspond with the actual custodial term once it is varied on appeal.

Consequently, the decision provides a clear roadmap for courts and advocates navigating the complex interplay between culpability, harm, mitigation, and subsequent behaviour. It underscores a public-protection lens in sentencing young but recalcitrant motoring offenders, ensuring that penalties meaningfully reflect the gravity of lives lost and the continued risk posed by such drivers.