R v Selamaj & Anor [2026] EWCA Crim 66 — “Especially dangerous” weapon uplift is not impermissible double counting in Category 1A affray, but mitigation may require reversion to the guideline starting point; immediate custody remains appropriate for weaponised street violence

1) Introduction

In Selamaj & Anor, R. v the Court of Appeal (Criminal Division) considered two joint appeals against sentence by a father (Adrian) and son (Arjol) arising out of a street brawl in Rugby captured on CCTV. Both pleaded guilty in the magistrates’ court and were committed to the Crown Court for sentence under section 14 of the Sentencing Act 2020.

Offences:

  • Arjol: affray (Public Order Act 1986, s 3) and cultivation of cannabis (Misuse of Drugs Act 1971, s 6).
  • Adrian: affray (Public Order Act 1986, s 3) and possession of a bladed article (Criminal Justice Act 1988, s 139).

Key issues on appeal:

  • Whether the Crown Court sentences for affray were too long, including whether the judge “double-counted” weapon use by both placing the offending in a high culpability category and then treating the weapon as aggravation.
  • Whether the judge erred in refusing to suspend the custodial terms.

2) Summary of the Judgment

The Court of Appeal allowed the appeals in part. It held:

  • The affray was correctly categorised as Category 1A under the relevant Sentencing Council guideline.
  • It was not impermissible double counting to treat Adrian’s meat cleaver as an aggravating feature despite weapon use being part of Category 1 culpability; the cleaver’s especially dangerous nature justified an uplift in principle.
  • However, the sentencing judge’s approach effectively drove the “after trial” figure to 30 months, beyond (or at least at the very top end of) the guideline range; the Court found insufficient allowance was made for weighty mitigation (especially Adrian’s complete previous good character at age 61 and employment).
  • The appropriate “after trial” sentence for each affray was the Category 1A starting point of 24 months, reduced by one-third for guilty pleas to 16 months.
  • Arjol’s consecutive sentence for cannabis cultivation (2 months) was upheld; his total became 18 months. Adrian’s total became 16 months.
  • Leave to appeal on suspension was refused; immediate custody remained justified for serious weaponised street violence.

3) Analysis

3.1 Precedents Cited

No prior appellate authorities were cited by name in the judgment. The Court’s decision is driven instead by:

  • the applicable Sentencing Council guideline for affray (including categorisation into Category 1A and its starting point and range);
  • the Sentencing Council guideline for possession of a bladed article (used by the sentencing judge to assess seriousness); and
  • established sentencing methodology: guideline step-by-step reasoning, assessment of aggravation/mitigation, guilty plea reduction, and suspension principles.

Accordingly, the case’s significance lies in how the Court of Appeal polices guideline conformity and the boundary between categorisation factors and additional aggravation, rather than in the application of named case precedent.

3.2 Legal Reasoning

A) Categorisation and “double counting”

A central submission was that because “use of a weapon” contributes to Category 1 culpability, it was wrong to add further uplift for Adrian’s weapon. The Court rejected a rigid view of double counting:

  • It accepted that use of a weapon is a Category 1 culpability feature.
  • But it distinguished between weapon use in general and an “especially dangerous” weapon used in a manner elevating fear and risk. The meat cleaver was “obviously dangerous” and “properly” treated as aggravation.

The Court thereby endorses a structured approach: a guideline factor can legitimately overlap with an aggravating feature where the latter reflects exceptional seriousness within the category (here, the particular danger presented by the cleaver and the way it was brandished).

B) Proportionality and staying anchored to the guideline range

Although the Court accepted the cleaver could aggravate, it found the sentencing judge’s “after trial” assessment (30 months) effectively exceeded what was justified, given:

  • the guideline starting point for Category 1A affray is 24 months, with a stated range;
  • aggravating features existed (weapon danger, injury, daytime street location with passers-by); but
  • there was also weighty mitigation, especially for Adrian: no previous convictions at all at age 61 and being fully employed.

The Court concluded that the correct balancing exercise brought the “after trial” sentence back to the starting point rather than pushing it upwards. This is a practical reaffirmation that guideline ranges are not mere “background”; where a judge moves substantially upwards, the sentencing remarks must demonstrate a commensurate rationale and full allowance for mitigation.

C) Parity between co-offenders

Despite differences—Adrian had the cleaver; Arjol used a brick and later a pole—the Court maintained equal affray sentences (16 months each) because Arjol’s conduct was “more persistent and violent” and he was “a leader”. The decision illustrates parity as a substantive evaluation of overall criminality, not a simplistic comparison of who held the most dangerous item at any one moment.

D) Suspension: why immediate custody remained necessary

Even after reducing the sentences (which re-opened the suspension question), the Court agreed with the judge that:

  • serious street violence,
  • in a public place,
  • involving weapons and intention to cause fear of very serious violence,

required immediate custody to achieve appropriate punishment. The Court treated the accepted “self-defence/defence of another” basis as relevant context, but not a reason to suspend once the violence escalated beyond that initial justification.

3.3 Impact

  • Clarifies “double counting” in guideline sentencing: The judgment supports treating a weapon’s particular dangerousness as aggravating even where weapon use is embedded in the category—provided the aggravation reflects seriousness beyond the baseline assumptions of that category.
  • Reinforces guideline discipline: Where aggravation is identified, courts must still demonstrate that the resulting sentence remains proportionate and that mitigation is not eclipsed. A move to (or beyond) the top end of the range invites appellate correction if reasons do not justify it.
  • Signals firm approach to weaponised public disorder: Even where an incident begins with some element of self-defence, escalation to weapon use in a public street will generally point away from suspension.
  • Practical sentencing takeaway for advocates: Challenges framed solely as “double counting” may fail if the weapon is unusually dangerous; stronger arguments may lie in (i) anchoring the court to the guideline range and (ii) ensuring mitigation (especially genuine previous good character) is given explicit, measurable effect.

4) Complex Concepts Simplified

  • Affray: A public order offence involving the use or threat of unlawful violence such that a person of reasonable firmness would fear for their safety.
  • Category 1A (guidelines): A guideline classification reflecting high culpability (here, weapon use and intention to cause fear of serious violence) and significant harm/risk, producing a specified starting point and range.
  • Starting point vs range: The “starting point” is the usual sentence for a typical case in that category; the “range” allows movement up or down for aggravating or mitigating features.
  • Double counting: An error where the same feature is used twice to increase sentence (e.g., used to set a high category and again to aggravate). This case explains that not all overlap is forbidden: an exceptionally serious version of a category feature can still aggravate.
  • Concurrent vs consecutive: Concurrent sentences run at the same time; consecutive sentences run one after the other (increasing the total).
  • Suspended sentence: A custodial term not immediately served unless the offender breaches conditions; typically inappropriate where immediate punishment/deterrence is required, particularly for serious violence in public.

5) Conclusion

Selamaj & Anor confirms that in Category 1A affray, courts may treat an especially dangerous weapon (here, a meat cleaver) as an aggravating feature without necessarily committing impermissible double counting. But it equally underscores that sentencing must remain anchored to guideline structure: where substantial aggravation is relied upon to move upwards, weighty mitigation—notably true previous good character—must still be given clear effect. Finally, the Court’s refusal to suspend, even after reducing the terms, signals that weaponised street violence will ordinarily require immediate custody to meet punitive and public protection aims.