R v Thorpe [2025] EWCA Crim 1334: Corrosive Substances (s.6 OWA 2019) Sentenced by Analogy with the Bladed/Offensive Weapons Guideline; Recall Time Not a Basis for Sentence Reduction

Introduction

In R v Thorpe [2025] EWCA Crim 1334, the Court of Appeal (Criminal Division) delivered an important sentencing ruling concerning two linked issues:

How courts should sentence the offence of having a corrosive substance in a public place contrary to section 6 of the Offensive Weapons Act 2019, in the absence of a dedicated Sentencing Council guideline.
Whether custody time served following recall to prison should prompt a reduction in sentence when there has been delay in bringing a new prosecution.

The appellant had pleaded guilty in the Crown Court at Newcastle upon Tyne to assault occasioning actual bodily harm (ABH) under section 47 of the Offences Against the Person Act 1861 and to possessing a corrosive substance (ammonia) in a public place, contrary to section 6 of the Offensive Weapons Act 2019. Following his pleas, the sentencing judge imposed concurrent terms of three years and nine months’ imprisonment on each count, ordered forfeiture of the ammonia, and imposed the victim surcharge.

On appeal against sentence (with leave of the single judge), the appellant, represented by Ms Shada Mellor, contended that the sentence was manifestly excessive and that delay—particularly given his recall to prison on an unrelated matter—ought to have reduced the sentence.

Case Background

The offending occurred on 14 April 2023. A uniformed police officer (PC Payne) approached a vehicle reported to be driving erratically. The appellant fled, slipped, and was caught. During a violent struggle, the appellant bit the officer’s forearm so forcefully that the officer had to punch him three times to free his arm. A second officer attended; the appellant threatened to “squirt” ammonia he had in his pocket, resisted arrest, seized the officer’s baton, and continued resisting despite incapacitant spray and warnings of Taser deployment. It took three officers to detain him. The ammonia, a strongly alkaline substance capable of causing severe burns and eye damage, was found on his person.

PC Payne suffered a fracture to the fifth metacarpal in his right hand and severe bruising at the bite site. The appellant had a substantial criminal record: 19 convictions for 39 offences (2002–2018), including possessing a prohibited weapon, knife possession, robbery (for which he received an IPP and was released only in 2017), malicious wounding, and racially aggravated assaults.

Summary of the Judgment

Mr Justice Pepperall, delivering the judgment of the Court, dismissed the appeal and upheld the sentence. The principal holdings were:

ABH categorisation: The assault on the officer was correctly assessed as a high-culpability, Category 1 harm ABH (Category A1) with a starting point of 2½ years. The fracture and the prolonged, persistent violence (including biting and attempts to use the baton) justified a substantial upward move, with the Court indicating a sentence in the region of 3½ years for the ABH alone after trial would have been warranted (paras 19–23).
Corrosives sentencing guideline: In the absence of a specific guideline for section 6 OWA 2019, it was proper to apply by close analogy the Sentencing Council guideline on possession of bladed articles and offensive weapons in a public place (in force since 1 June 2018). That guideline explicitly treats corrosive substances as examples of “highly dangerous” weapons, supports culpability A, and identifies a starting point of 1½ years with a range up to 2½ years for Category A1 (paras 24–28).
Totality and concurrency: A notional total sentence after trial of five years (three years for the ABH and two years for the corrosive substance offence) appropriately reflected totality. After applying 25% guilty plea credit, the resulting concurrent sentence of 3 years 9 months was stern but not manifestly excessive (paras 15, 29–30).
Delay/recall: The court rejected the argument that delay and recall to prison justified a reduction. By section 240ZA of the Criminal Justice Act 2003, time served on recall is not credited as remand time towards a subsequent sentence. The delay was not especially lengthy and the case proceeded thereafter with reasonable dispatch; thus no reduction was warranted (paras 31–32).
Emergency worker aggravation: The offence being committed against an emergency worker acting in the course of duty was a statutory aggravating factor, expressly acknowledged pursuant to section 67 of the Sentencing Act 2020 (para 21).
Mitigation claims: The self-reported autism spectrum disorder and ADHD were unsupported by evidence and, even if present, were not shown to mitigate this violent conduct (para 22).

Detailed Analysis

Precedents and Materials Cited

The judgment did not rely on named prior case authorities. Instead, the Court applied statutory provisions and Sentencing Council guidelines:

Offences Against the Person Act 1861, s.47: ABH offence.
Offensive Weapons Act 2019, s.6: Having a corrosive substance in a public place.
Sentencing Council Guidelines:
- Assault Definitive Guideline (used to classify ABH by culpability and harm; Category A1 starting point 2½ years; range 1½–4 years).
- Possession of Bladed Articles and Offensive Weapons in a Public Place guideline (in force since 1 June 2018), applied by analogy to s.6 OWA 2019. It expressly treats corrosive substances as examples of “highly dangerous” offensive weapons, supporting culpability A with a Category 1 harm risk starting point of 1½ years; range 1–2½ years.
- Totality Guideline principles were applied in structuring the overall sentence.
Sentencing Act 2020, s.67: Statutory aggravation where the offence is committed against an emergency worker acting in the exercise of their functions; the court expressly stated the aggravation.
Criminal Justice Act 2003, s.240ZA: Time spent in custody following recall is not to be counted as remand time to be deducted from a subsequent custodial sentence.

The absence of cited appellate case-law underscores that the Court treated these issues as matters of guideline application and statutory construction, setting out a clear, practical approach for first-instance judges.

Legal Reasoning

1) ABH categorisation and aggravation

- Culpability: High culpability was justified because the assault was “prolonged and persistent” and involved biting, breaking the officer’s hand, and attempting to use the officer’s baton (para 19). The Court noted and avoided double-counting by not also factoring in the separate ammonia threat at this stage (para 19).

- Harm: Category 1 harm was satisfied by the combination of a bite causing a break in the skin and severe bruising plus a broken bone (the fractured metacarpal) (para 20). In the context of ABH, a bone fracture comfortably meets Category 1 harm.

- Aggravation: Two aggravators were specifically emphasised:

Appalling relevant antecedents: A serious history of violent offending and weapon carriage, with the temporal gap explained by the appellant’s imprisonment under an IPP, limiting any mitigation from elapsed time (para 20).
Emergency worker victim: Statutory aggravation explicitly stated under section 67 of the Sentencing Act 2020 (para 21).

- Mitigation: None established on the evidence (para 23). Self-reported neurodiversity (autism/ADHD) lacked evidential foundation and a causal nexus to reduce culpability for this violent behaviour (para 22).

- Quantum: The Court considered that, absent plea, a sentence “around” 3½ years’ imprisonment for the ABH alone would have been justified (para 23).

2) Possession of a corrosive substance (s.6 OWA 2019) and guideline selection

- Guideline choice by analogy: The Court expressly approved using the Bladed Articles and Offensive Weapons guideline for section 6 OWA 2019 offences, noting that the guideline predated the 2019 Act (in force since 2018) and thus did not “deliberately exclude” it (paras 24–25). The guideline itself lists corrosives as exemplary “highly dangerous” weapons, making it apt by close analogy.

- Culpability and harm risk: The ammonia was proven to be strongly alkaline with the potential for severe burns and eye damage; combined with the situational context (threat to “squirt” during an arrest), the Court upheld culpability A and a Category 1 risk of serious disorder (paras 26–27).

- Aggravation: The appellant’s violent history aggravated the offence. Further aggravation arose from the threat to deploy the corrosive against a police officer during lawful arrest—while not a statutory aggravator for this count, it heightened seriousness (para 27).

- Quantum: The Court endorsed a top-of-range after-trial sentence of 2½ years for the corrosive offence (para 28).

3) Totality and sentence structuring

- Totality: The sentencing judge’s notional five-year total after trial (three years for ABH + two years for corrosives) made an “adequate” totality adjustment (para 29). With 25% plea credit, the concurrent term of 3 years 9 months was not manifestly excessive (para 29).

- Concurrency structure: The Court noted that, having chosen concurrency, the more orthodox approach would have been to “load” the principal count (ABH) and impose a shorter concurrent sentence on the corrosive count; but because appellate scrutiny focuses on the overall sentence, not its internal structuring, the total outcome was upheld (para 30).

4) Delay and recall

- Recall time is not creditable: Section 240ZA CJA 2003 prevents time served on recall being double-counted as remand time credited towards a later sentence (para 32). The mere fact that the appellant was recalled on an unrelated matter and later acquitted did not require a sentencing discount here.

- Delay assessment: The period between arrest (April 2023), charge (August 2024), and sentence (January 2025) was not especially lengthy in the context of criminal proceedings; the case thereafter proceeded with “reasonable dispatch” (para 32). No error of principle was made in refusing a reduction for delay.

Impact and Significance

1) Corrosives sentencing: clear analogue and likely uniformity

This judgment provides authoritative confirmation that, unless and until a specific Sentencing Council guideline is promulgated for section 6 OWA 2019, courts should apply the existing “Bladed Articles and Offensive Weapons” guideline by close analogy. It follows that:

Corrosives are ordinarily to be treated as “highly dangerous” offensive weapons, pointing to culpability A.
Where the context gives rise to a risk of serious disorder—for example, public confrontations or threats during arrest—harm assessment can reach Category 1, supporting starting points around 18 months and sentences up to the 2½-year guideline cap after trial for that offence.
Expect greater consistency in sentencing corrosive substance possession across courts, with stern sentences especially where there are threats or proximity to use.

2) ABH involving bone fractures: Category 1 harm reaffirmed

The Court’s treatment of a broken metacarpal as Category 1 harm within ABH underscores that fractures—even of relatively small bones—can justify the highest harm category under the ABH guideline. This will likely sustain robust sentences in police-assault cases where injury extends beyond transient harm.

3) Emergency worker aggravation must be stated

The Court expressly flagged the statutory aggravation under section 67 of the Sentencing Act 2020. This reiteration is a practice point for sentencing judges to state the aggravation on the record when offences are committed against emergency workers, even where the underlying charge is ABH rather than the specific “assault on emergency worker” offence.

4) Recall time and delay: limited scope for sentence reduction

The Court’s reliance on section 240ZA CJA 2003 confirms that recall time will not be credited and, absent exceptional prejudice or undue prosecutorial delay, the mere fact of recall will not typically warrant sentence reduction. This is likely to curb appeals premised on the “effective extra time” spent in custody due to unrelated recall during investigation stages.

5) Mitigation by neurodiversity: evidence and causal nexus required

The Court’s rejection of mitigation based on self-reported autism and ADHD underscores two requirements:

Evidence: Diagnoses should be supported by expert or medical evidence placed before the court.
Nexus: There must be a clear explanation of how the condition(s) materially reduce culpability in the circumstances of the particular offence.

Without both, such submissions are unlikely to influence the sentence.

6) Pre-sentence reports

The Court approved the sentencing judge’s decision not to obtain a pre-sentence report where immediate custody was inevitable. This is an operational reminder that PSRs are not mandatory if they would not alter an inevitable custodial outcome.

Complex Concepts Simplified

ABH (Assault Occasioning Actual Bodily Harm): An offence under s.47 OAPA 1861 where injury is caused that is more than transient or trifling. Sentences are guided by culpability (how blameworthy) and harm (degree of injury).
Culpability and Harm Categories (Sentencing Council): Sentences start from a matrix of culpability levels (e.g., A = highest) and harm categories (1 = highest) and are adjusted up or down for aggravating/mitigating factors.
Category A1 (Assault): High culpability and highest harm. For ABH, the starting point is 2½ years’ custody; the range is 1½–4 years after trial.
“Highly dangerous” weapon: The weapon’s nature goes substantially beyond common offensive weapons in capacity to cause severe harm. Corrosive substances like strong ammonia are listed examples.
Section 6 OWA 2019: Creates the offence of having a corrosive substance in a public place without lawful excuse.
Totality principle: When sentencing multiple offences, the court must ensure the total sentence is just and proportionate to the overall criminality, not merely the sum of parts.
Concurrent vs consecutive: Concurrent sentences run at the same time; consecutive run one after another. The court focuses on the overall totality.
Statutory aggravation (s.67 SA 2020): Offences against emergency workers acting in the course of duty are statutorily aggravated, warranting increased seriousness and sentence.
Section 240ZA CJA 2003: Governs credit for time spent in custody before sentence. Time served on recall to prison is not credited as remand time against a later sentence for new matters.

Practice Points

For prosecutors: Where corrosives are carried or threatened, frame submissions using the “bladed/offensive weapons” guideline by analogy; emphasise “highly dangerous” nature and any “risk of serious disorder.” Ensure the emergency worker aggravation is specifically raised.
For defence: If raising mental health or neurodiversity in mitigation, obtain timely expert evidence and explain the causal impact on culpability. Consider forensic testing of the substance to contest “highly dangerous” characteristics where supportable. Challenge “risk of serious disorder” only where the context is genuinely contained or private.
For judges: State statutory aggravation under s.67 SA 2020 on the record; avoid double-counting facts across counts; and use the “bladed/offensive weapons” guideline as the closest analogue to s.6 OWA 2019 until a dedicated guideline exists. Apply totality transparently.
On delay/recall: Absent exceptional prejudice, time served on recall should not be leveraged to reduce new sentences; s.240ZA precludes crediting recall as remand.

Conclusion

R v Thorpe sets a clear and practical template for sentencing possession of corrosive substances under section 6 of the Offensive Weapons Act 2019: courts should apply the “bladed articles and offensive weapons” guideline by close analogy, ordinarily treating corrosives as “highly dangerous” weapons and assessing harm by reference to risks of serious disorder in context. The decision also reaffirms robust categorisation for ABH where there is a fracture, the need to explicitly mark offences against emergency workers as statutorily aggravated, and the primacy of section 240ZA CJA 2003 in foreclosing credit for time spent on recall. The Court’s emphasis on totality, avoidance of double-counting, and evidential rigour for mitigation claims will guide first-instance sentencing and streamline future appeals. The result—a concurrent term of three years and nine months—was stern but within proper bounds, and the appeal was dismissed.