R v Ball [2026] EWCA Crim 121 — “Unduly Lenient” Restraint and the Discretionary (Non-Formulaic) Treatment of Recall Time
1. Introduction
R v Ball concerns an application by His Majesty’s Solicitor General under
section 36 of the Criminal Justice Act 1988 to refer to the Court of Appeal (Criminal Division)
sentences said to be unduly lenient.
The respondent (born 10 November 2000) pleaded guilty in the Crown Court at Truro to:
- Count 1: possession of a controlled drug of Class A with intent to supply (cocaine), contrary to section 5(3) Misuse of Drugs Act 1971.
- Count 2: possessing criminal property (cash), contrary to section 329(1)(c) Proceeds of Crime Act 2002.
Police executed a warrant at shared accommodation. Cocaine (multiple wraps/bags) and drug supply paraphernalia were found,
together with £3,510 cash. The respondent had relevant prior convictions for drug supply, including a
2-year custodial sentence imposed in October 2024 and release in June 2025; the new offences occurred shortly thereafter.
The sentencing judge (Ms Recorder Gates) imposed 1041 days on count 1 (treated as effectively 3 years,
but reduced by 54 days for time spent in custody following recall) and a concurrent 6 months
on count 2; all concurrent with the recalled sentence. The Solicitor General contended the overall outcome failed to reflect
the true criminality, particularly given prior convictions and the additional 54-day reduction.
2. Summary of the Judgment
The Court of Appeal refused leave to refer. While it accepted the total sentence could be seen as lenient,
it was not unduly lenient within the well-established section 36 test.
The Court emphasised that section 36 is not a mechanism for routine re-sentencing. The Recorder’s evaluative judgments—on
role, maturity, mitigation, and the weight of aggravating factors—fell within the range reasonably open to a sentencing judge.
The Court regarded the Solicitor General’s strongest point to be the 54-day reduction for recall time, but held
that (i) this was discretionary, and (ii) even if debatable, it did not render the sentence unduly lenient on its own.
3. Analysis
3.1 Precedents Cited
R v BRJ [2023] EWCA Crim 351
Cited by the respondent to underline the correct comparator in section 36 references: the question is not whether a slightly
higher sentence would have survived an offender’s appeal, but whether the impugned sentence falls outside the range
that a reasonable sentencing judge could impose. This supports appellate restraint where the first-instance judge has made
permissible evaluations.
Attorney-General's Reference (Clarke) [2018] EWCA Crim 185; [2018] 1 Cr App R(S) 52
Used to support the approach to young adult offenders: turning 18 is not a “cliff edge”. The reference reinforced
the legitimacy of giving weight to maturity and developmental factors beyond childhood, relevant here because the respondent
(24 at sentence) relied on immaturity and positive progress.
Raised by the Solicitor General in the context of whether, and when, a sentencing court may adjust to “do justice” where time has been spent
in custody on recall for another matter—illustratively where there has been excessive delay. It provided an example of the
circumstances in which an adjustment might be justified, but did not establish any automatic entitlement or arithmetical rule.
Attorney-General's Reference (Sked) [2025] EWCA Crim 351; [2025] 2 Cr App R(S) 21
Central to the Court’s framing of the recall-time issue. The Court reiterated the proposition (from Sked) that any discretion to take recall time
into account must not subvert Parliament’s policy that time served on recall does not automatically count toward a new sentence.
Sked also supplied the key methodological caution: a measured approach is required and there is no general arithmetical formula.
Attorney-General's Reference (Egan) [2022] EWCA Crim 1751; [2023] 2 Cr App R(S) 16
The Court relied on Egan’s summary of section 36 principles, including:
- deference to the first-instance judge’s assessment of competing factors;
- the “unduly lenient” threshold (outside the reasonable range);
- leave only in exceptional circumstances, not borderline cases;
- the purpose of section 36 being correction of gross error, not ordinary disagreement.
Attorney-General's Reference No 4 of 1989 (1990) 90 Cr App R(S) 366
Treated as the seminal statement of principle (Lord Lane CJ): the appellate question is not what the Court of Appeal would have done at first instance.
The Court re-affirmed the conceptual “reasonable range” bounded by the minimum proper sentence and the maximum before manifest excess.
Section 36 only engages when the sentence falls below that proper minimum bound of reasonable outcomes.
3.2 Legal Reasoning
(a) Guideline anchoring and the Recorder’s methodology
The Court accepted that the Recorder correctly:
- categorised count 1 as category 3 harm and significant role under the drug supply guideline;
- identified the correct guideline starting point: 4 years 6 months (range 3 years 6 months to 7 years);
- structured sentencing by making count 1 the lead and imposing count 2 concurrently, with concurrency to the recall term being common ground as legally required.
(b) The contested evaluative judgments (role, mitigation, aggravation)
The Solicitor General criticised the Recorder for placing the case low within range, insufficiently uplifting for aggravation
(notably relevant prior convictions and commission on licence), and over-crediting mitigation (age/maturity and claimed progress).
The Court’s core reasoning was institutional and evaluative: these were matters “primarily” for the Recorder. Even if an appellate
court might have weighed them differently, that does not cross the section 36 threshold unless the outcome falls outside the
permissible range.
(c) Guilty plea credit
It was agreed the respondent was entitled to a 25% reduction for pleas at the PTPH. The Recorder’s “notional after-trial”
sentence of 4 years reduced to 3 years reflected that agreed framework; this element was not treated as an error by the Court.
(d) The 54-day deduction for recall time
The Court identified this as the Solicitor General’s “strongest argument” because the respondent offended soon after release and there was
no material delay in disposal—factors which might weaken the case for any adjustment.
However, applying the approach reflected in Attorney-General's Reference (Sked) [2025] EWCA Crim 351; [2025] 2 Cr App R(S) 21,
the Court treated the issue as one of discretion and reiterated that there is no universal formula. Critically, the Solicitor General
fairly accepted that, standing alone, the 54-day point would not justify an unduly lenient reference. The Court concluded that, even if questionable,
it did not push the overall sentence outside the reasonable range.
(e) The section 36 “exceptional” threshold
The decision is a reiteration (not a reinvention) of section 36 discipline: leave should be refused where the case is, at most, borderline.
The Court explicitly characterised the outcome as lenient but not unduly so—confirming that section 36 is reserved for clear cases of
sentencing falling below the minimum of reasonable outcomes.
3.3 Impact
(1) Practical restraint in “unduly lenient” referrals
The judgment reinforces that many disagreements about placement within a guideline range will not meet the section 36 threshold, especially where
the sentencing judge has correctly identified the guideline category and starting point and then made permissible evaluative judgments about role,
maturity, and mitigation.
(2) Recall-time adjustments: discretionary, fact-sensitive, and non-formulaic
Although the Court did not endorse any general practice of deducting recall time, it confirmed that such an adjustment—if made—will be treated as
discretionary and context-specific. The significant constraint, aligned with Sked, is that the exercise of discretion must not undermine Parliament’s
policy that recall time does not automatically count toward a new sentence.
(3) Young adult maturity remains a live sentencing consideration
By recognising the relevance of maturity (via Clarke) and treating it as a matter for the trial judge’s assessment, the case supports continued reliance
on young adult development arguments, while also showing that such mitigation may be debated without necessarily creating an “unduly lenient” error.
4. Complex Concepts Simplified
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“Unduly lenient” (section 36): not merely “lenient” or “lower than the Court of Appeal would have imposed”; it must be outside the range
of sentences reasonably open to the sentencing judge.
-
Section 36 leave “only in exceptional circumstances”: the Court will not intervene in borderline cases; the mechanism targets clear,
significant sentencing error.
-
Guideline “starting point” and “category range”: the starting point is a benchmark for a typical case in that category; the range represents
the span of proportionate outcomes depending on aggravating/mitigating factors.
-
“Significant role” / “Category 3 harm” (drug guideline): “role” concerns the offender’s function in the supply chain; “harm category” reflects
the scale/impact, here linked to supply to street users.
-
Recall: a return to custody during the licence period of an earlier sentence. Time spent in custody on recall does not automatically reduce
a sentence for new offending; any adjustment is discretionary and must be justified to achieve a just and proportionate result.
-
Concurrent sentences: terms served at the same time (as opposed to consecutive, served one after another). Here, concurrency with the recall
sentence was common ground as legally required on the facts and statutory framework.
5. Conclusion
R v Ball [2026] EWCA Crim 121 confirms that section 36 intervention requires more than a credible argument that a sentence was soft: it must be
outside the reasonable range. The Court treated the Recorder’s guideline application and balancing of aggravation and mitigation as matters of legitimate
judicial judgment. Even the most arguable complaint—the 54-day reduction linked to time on recall—was held to be discretionary and insufficient,
in context, to make the overall outcome unduly lenient. The case therefore stands as a clear reminder of appellate restraint in unduly lenient
references and of the non-formulaic, policy-sensitive approach to any adjustment for recall time.