R v Foster [2025] EWCA Crim 1185: Oblique Death-Threat Communications Can Justify Immediate, Unsuspended Custody Even Without Express Citation of the Suspension Guideline; 10% Credit for a Day‑Two Plea to a Non‑Indicted Count

Introduction

This commentary examines the England and Wales Court of Appeal (Criminal Division) decision in R v Foster [2025] EWCA Crim 1185 (8 August 2025), delivered by Lord Justice Dingemans. The case arose from an application for leave to appeal against a sentence imposed for sending malicious electronic communications contrary to section 1(1) of the Malicious Communications Act 1988 (MCA 1988).

The background was a combustible dispute over XL Bully puppies. Following a confrontation on 11 January 2022, the applicant, Ms Donna Foster, sent a series of messages to the complainant, Mr Jacque, including a coded message implying imminent death (“All my condolences to your family”). The next day an unrelated assailant discharged a shotgun at Mr Jacque; Ms Foster was not proven to be party to that attack.

At Manchester Crown Court (Minshull Street), Ms Foster pleaded guilty on day two of a trial to the count of malicious communications. The judge treated the communications as exceptionally serious, adopted a 21‑month starting point (noting there is no offence‑specific guideline), made mitigation reductions to 15 months, then applied a 10% guilty‑plea discount, imposing an immediate 13‑month custodial sentence. The judge did not explicitly address the Sentencing Council’s Overarching Guideline on the Imposition of Community and Custodial Sentences when deciding not to suspend.

On appeal, Ms Foster argued that she had been sentenced for an offence she did not commit (the firearm attack), that mitigation had been undervalued, that the plea credit was too low, and that the judge failed to consider suspending the sentence. The Registrar referred the application to the Full Court because the judge had not addressed suspension expressly.

Summary of the Judgment

• The Court of Appeal refused leave to appeal; the sentence stands.
• The sentencing judge did not sentence Ms Foster for the shotgun attack; he properly evaluated the seriousness of her threatening communications in context.
• A 10% guilty‑plea reduction for a plea tendered on day two of trial was a legitimate application of the relevant guideline, notwithstanding that the pleaded count was not on the indictment.
• Mitigation (no previous convictions, personal history including domestic abuse, caring responsibilities) was taken into account; the extent of the reduction was a matter of judgment and disclosed no error of principle.
• Although the judge did not expressly cite the Imposition guideline, the Court of Appeal conducted the suspension analysis itself and upheld the decision that “appropriate punishment could only be achieved by immediate custody,” given the gravity of the threats.

Analysis

1) Precedents and Authoritative Materials Cited

No prior case authorities were expressly cited. The Court’s reasoning instead relied on two Sentencing Council frameworks:

• The Overarching Guideline on the Imposition of Community and Custodial Sentences (in force from 1 February 2017) — relevant to whether a custodial term should be suspended. The Court noted that a new imposition guideline would come into force on 1 September 2025, but it was not applicable to this case.
• The guideline on reductions for guilty pleas — applied to justify a 10% discount for a plea offered on the second day of trial.

The absence of offence‑specific guidance for MCA 1988 s 1(1) was expressly noted; accordingly, the judge was required to set a principled starting point by reference to overall seriousness.

2) The Court’s Legal Reasoning

a) Seriousness of the communications and the “context” of subsequent violence

The Court rejected the contention that Ms Foster had been sentenced for the firearm attack. The sentencing judge was entitled to consider “all the relevant circumstances,” including the sequence of events and the character of the messages. The key features were:

• The messages included clear threats (“You’d better watch yourself…”) and an obliquely coded but unambiguous death warning (“All my condolences to your family”).
• Such messages, intended to cause distress, were rightly treated as among the most serious forms of malicious communications. The gravity derives from the credible menace conveyed, not from whether subsequent physical harm occurred or could be proved against the sender.
• Crucially, the judge did not attribute to Ms Foster responsibility for the shotgun discharge; rather, he evaluated the intrinsic seriousness of her communications.

This draws a careful boundary: a sentencing court may use surrounding facts as context to gauge how frightening and harmful the communication itself was, but must not sentence as if the defendant committed unproved associated crimes.

b) Starting point and mitigation where no offence‑specific guideline exists

In the absence of an offence‑specific guideline for MCA 1988 s 1(1), the judge identified a 21‑month custodial starting point to reflect the exceptional seriousness of the threats, then reduced to 18 months for good character and to 15 months for additional mitigation (first custodial sentence, background including domestic abuse, and caring responsibilities). The Court found no error of principle in this calibration.

c) Guilty‑plea discount

The 10% reduction for a plea on day two of trial was upheld as a legitimate application of the guilty‑plea guideline. The fact the plea was to a count not on the indictment did not entitle the defendant to greater credit; the Court observed that the plea “could have been offered before.” The decision emphasises that:

• Once the trial is underway, the discount is typically limited to around 10%.
• Offering a plea late to an alternative or substitute count does not, without more, reset or enhance credit.

d) Mitigation

The judge acknowledged substantial personal mitigation: no prior convictions, a history of domestic violence, and significant caring responsibilities for a teenage daughter and newborn grandchild. Although “other judges might have made a larger discount,” the Court could not identify any error of principle or conclude that the sentence was manifestly excessive. This reaffirms the appellate restraint shown to first‑instance sentencing evaluations that balance seriousness and mitigation within the permissible range.

e) Suspension of sentence and the Imposition guideline

While the judge did not expressly cite the Imposition guideline, the Court of Appeal performed the guideline analysis itself and concluded that the decision not to suspend was justified. The framework considers both:

• Factors against suspension: risk or danger to the public; whether only immediate custody can achieve appropriate punishment; and a history of poor compliance with orders.
• Factors for suspension: realistic prospects of rehabilitation; strong personal mitigation; and whether immediate custody would cause significant harm to others.

Applied to Ms Foster:

• No evidence showed she presented a “risk/danger to the public,” and there was no adverse compliance history.
• There were realistic prospects of rehabilitation and some personal mitigation; immediate custody would adversely affect her daughter and newborn grandchild.
• Nevertheless, the Court held that the “appropriate punishment could only be achieved by immediate custody” given the extreme gravity of the threatening communications. That single factor sufficed to decline suspension.

Two important points emerge:

• A judge’s failure to cite the Imposition guideline explicitly is not, without more, an error of law; the appellate court may conduct the analysis and uphold the decision if the factors justified withholding suspension.
• The factors against/for suspension are not cumulative prerequisites; one decisive factor (here, the need for immediate punishment) can outweigh competing considerations favoring suspension.

3) Impact and Significance

a) Malicious communications sentencing

• Oblique but credible death threats sent electronically can be treated as among the most serious forms of malicious communication and may attract immediate custody, even for first‑time offenders with significant personal mitigation.
• The absence of an offence‑specific guideline does not prevent robust custodial starting points where the messaging is gravely menacing.
• Courts may consider the broader context to assess the harm and fear caused by the communication, while scrupulously avoiding treating unproved subsequent violence as aggravation attributable to the defendant.

b) Suspension decisions

• “Appropriate punishment can only be achieved by immediate custody” is a powerful criterion that can alone justify refusal to suspend, even where there are rehabilitative prospects and adverse third‑party impact.
• Failure to expressly refer to the Imposition guideline is not determinative; what matters is that the substance of the analysis supports immediate custody. The Court of Appeal may supply the analysis if needed.
• For defence practitioners, detailed evidence on the Imposition factors remains vital; but where the offending is exceptionally grave, arguments for suspension may be overcome by the punitive imperative.