R v Burke [2025] EWCA Crim 1454: Concurrency for Multiple CBO Breaches and Elevated Culpability for Shop Theft Committed Under a CBO

Court: England and Wales Court of Appeal (Criminal Division)

Date: 2 September 2025

Citation: [2025] EWCA Crim 1454

Introduction

This appeal concerns sentencing for a defendant with an entrenched pattern of acquisitive offending driven by heroin addiction, who also breached a 10-year Criminal Behaviour Order (CBO) restricting his presence in the Borough of Westminster. The appellant, aged 53, had amassed 103 previous convictions for 233 offences, including 183 theft and related offences and multiple breaches.

In the Crown Court at Southwark on 13 February 2025, His Honour Judge Griffiths imposed a total term of 42 months’ imprisonment for two thefts (shoplifting), two breaches of a CBO, possession of heroin, and activation of part of a suspended sentence. The Court of Appeal granted leave and allowed the appeal, undertaking a fresh sentencing exercise after finding the original hearing fundamentally flawed in approach and execution.

The judgment is significant for two principal clarifications: first, that a CBO can operate as a functional equivalent of a “banning order” for the purposes of assessing culpability in the shop theft guideline; and second, that where “persistence” underpins categorisation for multiple CBO breaches, consecutive terms for each breach risk double counting and should ordinarily be made concurrent, with careful attention to totality.

Summary of the Judgment

The Court of Appeal quashed the total sentence of 42 months as manifestly excessive and re-sentenced the appellant to a total of 34 months’ imprisonment.
For the two theft offences, the court applied the correct “theft from a shop” guideline, placing the cases in culpability category A and harm category 1, and imposed 20 months on each count, concurrent, after full credit for plea.
For the two CBO breaches, the court placed the offending in category A1 but held that because the categorisation relied on persistence, the breaches should attract concurrent sentences to avoid double counting. The court imposed 12 months on each breach, concurrent with each other but consecutive to the theft sentences, after one-third credit for plea.
The possession of heroin sentence (3 months) remained concurrent. The two months activated from the suspended sentence were added consecutively as required.
Totality and correct categorisation were determinative. The court also rebuked shortcomings in the original sentencing hearing, noting a lack of clarity, errors in chronology, confusion over guidelines, and inappropriate judicial remarks.

Key Holdings and Principles

A Criminal Behaviour Order can be treated as the equivalent of a store “banning order” when assessing culpability under the shop theft guideline; breach of such an order elevates culpability to category A.
Where multiple CBO breach counts are categorised as A1 because of “persistent” breach, imposing consecutive terms for each breach risks double counting; concurrency between breach counts may be required to reflect the persistence within category rather than by stacking sentences.
In cases involving both substantive acquisitive offences and breaches of orders, the court should consider the substantive thefts as potentially more serious (because they entail actual loss and breach of an order) and structure sentences so that thefts attract the longer component, with breaches adjusted to achieve overall proportionality.
Totality remains a central control mechanism; guideline starting points are not applied mechanically where the overall sentence would otherwise be disproportionate.
On an offender’s appeal against sentence, the Court of Appeal will not increase the overall sentence; a flawed sentencing exercise may be re-done de novo, but within the cap of the original overall term.

Factual Background

The appellant funded his heroin addiction by stealing high-value clothing from West End retailers. After years of similar offending, in April 2024 he was made subject to a 10-year CBO, one term of which barred him from the Borough of Westminster.

The index offences included:

25 October 2024: Theft of six cashmere jumpers worth £900 from Sun Spell, Jermyn Street.
28 November 2024: Imposition of a 12-week suspended sentence for other thefts.
18 December 2024: Theft of six jackets worth £2,000 from Peak Performance, Covent Garden.
30 December 2024: Presence in St James’s Park Underground Station (first CBO breach).
15 January 2025: Found in Soho in breach of CBO; small quantity of heroin found at Charing Cross Police Station (second breach and drug possession).

The Crown Court produced a total of 42 months by stacking consecutive terms for both thefts and both breaches, with the heroin sentence concurrent and suspended sentence activated in part. The hearing itself was marred by incomplete judicial notes, errors and confusion over dates and guideline categorisation, unhelpful submissions, lack of client control, and intemperate judicial remarks.

Detailed Analysis

1. Precedents and Materials Cited

The judgment does not cite specific appellate authorities by name. The Court anchored its approach in:

Relevantly applicable Sentencing Council guidelines, including:
- Theft from a shop guideline (culpability/harm matrix; effect of banning orders).
- Breach of a Criminal Behaviour Order guideline (culpability A for very serious or persistent breach; harm category 1 where there is serious harm or a continuing risk of serious criminal and/or anti-social behaviour).
- Totality guideline (concurrency vs consecutivity; avoiding double counting; proportionality of the overall sentence).
Orthodox appellate principles governing re-sentencing on an offender’s appeal, including the limitation that the Court of Appeal will not impose a more severe overall sentence than that originally imposed when redoing the exercise.

Although no case citations are given, the court’s reasoning is embedded in the structure of the Guidelines and well-established totality principles.

2. Legal Reasoning

(a) Correct guideline and categorisation for shop theft

The sentencing judge wrongly used an inapplicable categorisation (B3). The Court of Appeal emphasised that the correct guideline is the theft-from-a-shop guideline. It then treated the operative CBO as a functional equivalent of a “banning order” and therefore placed both thefts in culpability category A. The Court expressly noted that, although the CBO did not relate to particular stores, it was broader and more serious: it had been imposed precisely because of repeated shop thefts across the West End. That wider, court-ordered prohibition aggravated culpability more than a store-specific ban would have done.

As to harm, the Court took a two-step approach:

The £900 theft was at the very top of harm category 2 and could properly be treated as category 1 in light of the appellant’s extensive similar history.
The £2,000 theft was plainly category 1 on value alone.

For category A1 shop theft, the Court noted a starting point of 26 weeks and a range extending up to 3 years’ custody. Given the prolific recidivism and the fact that the thefts were committed in breach of a CBO, it fixed a pre-plea sentence of 30 months for each theft, reduced by one-third for the early guilty pleas to 20 months per count, to run concurrently with each other (the offences being of the same type in close succession).

(b) CBO breaches: categorisation and concurrency

The Crown Court had treated each breach as category A1 and run the terms consecutively, producing an additional 30 months. The Court of Appeal agreed with category A1 — persistence was present and the harm to West End retailers from this offender’s conduct must be regarded as high — but took a different approach to structure and totality.

Crucially, the court recognised that “persistence” was the very feature elevating culpability and harm. To then impose consecutive sentences for each breach for the same reason risks double counting. The Court held that where categorisation relies on the persistent nature of the breach, concurrency between multiple breach counts is indicated to reflect that the persistence has already been captured in the categorisation itself.

Guided by totality, and to preserve proportionality between the thefts (causing actual loss and committed in breach of the order) and the bare breaches, the Court concluded that the appropriate additional term for each breach was 18 months pre-plea, reduced to 12 months with the one-third credit, to run concurrently with each other but consecutively to the theft sentences.

(c) Totality and proportionality

The judgment is a practical demonstration of the totality principle:

Concurrent sentences within clusters of similar offending (thefts with each other; breaches with each other) to avoid excessive aggregation for offences arising out of the same criminal pattern.
Consecutive sentences between the clusters (thefts vs breaches) to reflect distinct criminality (substantive acquisitive offences causing financial loss vs the wrongdoing in disobeying a court order).
Ensuring the theft sentences are the longer component because, on the facts, they were more serious than the bare breaches, particularly as the thefts both breached the CBO and involved actual loss.

The Court accepted that guideline starting points are not absolute; they interact with totality. Hence, although the breach guideline’s category A1 has a two-year starting point, the court fixed a lower pre-plea term for each breach (18 months) to calibrate the overall sentence to the offender’s total criminality without over-punishing by duplication.

(d) Plea credit, drug possession, and suspended sentence activation

Plea credit: A full one-third discount was applied to each offence following early guilty pleas (reducing 30 months to 20 months for the thefts and 18 months to 12 months for the breaches).
Heroin possession: The 3-month sentence remained concurrent, having no effect on the overall term.
Suspended sentence: The two-month activation was added consecutively. The Court accepted the necessity of activation upon further offending within the operational period, while recognising the partial reduction (activated at two months rather than the full twelve weeks).

(e) A fundamentally flawed first-instance sentencing exercise

The Court was sharply critical of the Crown Court hearing:

The prosecution’s submissions did not assist on the applicable guidelines or totality.
Defence counsel failed to control the client, leading to disruptions.
The judge proceeded despite losing the beginning of his prepared remarks; there was confusion over dates and categorisations.
Intemperate judicial comments were made while the sentence was still being explained.

These features combined to render the sentencing exercise “fundamentally flawed,” justifying the Court of Appeal’s de novo re-sentencing, subject to the cap preventing an increase of the overall sentence on an offender’s appeal.

3. The Final Sentence Breakdown

Thefts: 20 months each (after one-third credit), concurrent with each other.
CBO breaches: 12 months each (after one-third credit), concurrent with each other but consecutive to the thefts.
Heroin possession: 3 months concurrent.
Suspended sentence: 2 months consecutive.

Total: 20 + 12 + 2 = 34 months’ imprisonment.

Impact and Significance

(1) CBOs as functional “banning orders” in shop theft sentencing

The court’s express treatment of a CBO as an aggravating “banning order” within the theft-from-a-shop guideline clarifies that formal court-imposed restrictions, even where not tied to a particular store, elevate culpability to category A. This is likely to have widespread effect in urban shoplifting cases where CBOs cover areas or boroughs rather than specific premises. Prosecutors and courts should specifically address any applicable CBO when assessing culpability for shop thefts.

(2) Concurrency for multiple CBO breaches where persistence drives categorisation

The judgment delivers a clear warning against double counting. If the categorisation of breach offences (culpability A, harm 1) rests on “persistent” breaches, running multiple breach sentences consecutively can punish persistence twice: once in categorisation and again in aggregation. Concurrency between breach counts will often be the correct structure, with proportional uplift achieved by making the breach term consecutive to the substantive offences.

(3) Rebalancing seriousness between breaches and substantive offending

The court emphasised that, on these facts, the thefts were the more serious offences: they entailed actual economic loss, were committed in the face of a CBO, and warranted the longer component. The breaches, although serious, should not eclipse the primary criminality of the thefts through consecutive stacking.

(4) Totality as a decisive control

Totality is not an afterthought; it is integral to fair sentencing. The court’s decision shows that guideline starting points and ranges must be reconciled with the overall picture. Even where a guideline might suggest a longer term for an individual count, totality can require moderation to produce a proportionate aggregate sentence.

(5) Practical consequences for courtcraft

Prosecutors must assist with correct guideline selection and totality.
Defence counsel must maintain client control and focus submissions on guideline categorisation and structure.
Judges should pause to retrieve notes rather than proceed in confusion, and should avoid exasperated remarks that can undermine confidence in the process.

Complex Concepts Simplified

Criminal Behaviour Order (CBO): A court order designed to prevent further anti-social or criminal conduct. Breaching a CBO is a criminal offence. A CBO can restrict presence in specified areas (e.g., a borough) or prohibit certain behaviours.
“Banning order” in the shop theft guideline: The guideline treats theft committed in breach of a store ban (or analogous prohibition) as higher culpability. This case confirms a CBO can count as an analogous ban, elevating culpability.
Culpability and harm categories: Sentencing guidelines sort offences into culpability (how blameworthy the conduct is) and harm (the damage or risk, often linked to value for theft). Category A1 is the most serious combination of culpability A and harm 1.
Plea discount: An early guilty plea typically earns up to one-third reduction from the pre-plea sentence for that count.
Concurrency vs consecutivity: Concurrent sentences run at the same time; consecutive sentences run one after the other. The totality principle guides when to use each to avoid an unjustly long overall term.
Totality: The requirement that the overall sentence reflect the total criminality without double counting. It often leads to concurrent terms for similar or related offences and consecutive terms for truly distinct offending.
Double counting: Penalising the same feature twice (for example, treating “persistence” both as a reason to categorise an offence more severely and again as a reason to stack sentences consecutively).
Activation of a suspended sentence: If further offences are committed during the operational period, the court will usually activate the suspended term, though it may reduce the activated portion to reflect justice and proportionality.

Conclusion

R v Burke delivers two salient clarifications with practical importance across the criminal courts. First, a CBO functions as a “banning order” for the purposes of the shop theft guideline, elevating culpability to category A and permitting substantial custodial terms where the history and context demand it. Second, where multiple CBO breaches are categorised at the top end because of “persistence,” concurrent sentencing for the breach counts is often required to avoid double counting, with proportionality restored by making the breaches consecutive to the primary offending.

The case is also a careful tutorial on totality: concurrent within clusters of similar offending; consecutive between distinct clusters; and an overall calibration that ensures the most serious offences receive the longest terms. Finally, it underscores the importance of orderly sentencing hearings — accurate guideline selection, coherent arithmetic, and judicial restraint — to uphold confidence in the criminal justice process.

By reducing the total sentence from 42 to 34 months and explaining the structure, the Court of Appeal provides a workable template for sentencing prolific shop theft offenders subject to CBOs, balancing denunciation, deterrence, and proportionality under the Sentencing Council’s framework.