Section 36 “Unduly Lenient” Correction Where the Error Lies in Failing to Impose an Extended Sentence for Dangerousness

1. Introduction

This Attorney General’s Reference concerned whether a sentence that was not, in sheer custodial length, “unduly lenient” could nonetheless be corrected under s.36 Criminal Justice Act 1988 because the sentencing judge wrongly declined to find dangerousness and therefore failed to impose an extended sentence.

The respondent (the offender) pleaded guilty to intentional strangulation and arson being reckless as to whether life was endangered, arising from domestic abuse against his partner (“V”). He also pleaded guilty to criminal damage (smashing windows) from an earlier incident.

The Crown Court imposed a total of five years’ imprisonment (four years for arson, plus one year consecutive for strangulation). The Solicitor General did not principally challenge the overall term as too short; instead, she argued that the judge’s non-dangerousness finding was erroneous and that the absence of an extended licence rendered the sentence “unduly lenient” within the meaning of s.36.

2. Summary of the Judgment

The Court of Appeal granted leave and held the sentence was unduly lenient because the judge’s refusal to find dangerousness was unreasonable in light of the facts, escalation, and professional risk assessment. The Court accepted that custodial length alone might not have justified intervention, but emphasised that the type/structure of sentence is also capable of making a sentence “unduly lenient”.

Without increasing the overall custodial element (noting the “double jeopardy” caution in references), the Court substituted:

• Count 4 (arson reckless as to endangering life): an extended sentence of 9 years comprising a 5-year custodial term and a 4-year extended licence;
• Count 1 (intentional strangulation): a concurrent determinate sentence of 3 years (replacing the earlier 1 year consecutive).

The custodial element remained five years, but the offender became subject to Parole Board consideration at two-thirds and a substantially longer period of post-release control due to the extended licence.

3. Analysis

3.1 Precedents Cited

(a) Attorney General's Reference No 4 of 1989 [1989] 11 Cr.App.R (S) 517

The court relied on Lord Lane CJ’s classic formulation of the s.36 test: an appellate increase is not justified merely because the Court of Appeal would have passed a higher sentence; the sentence must fall outside the range that a judge, properly directing themself, could reasonably consider appropriate. The judgment reiterated the central restraint that “sentencing is an art rather than a science” and that “mercy” is not a vice—principles that frame intervention as exceptional.

(b) Attorney General's Reference No 132 of 2001 (R v Johnson) [2003] 1 Cr.App.R (S) 41

This authority was cited for the broader constitutional purpose of s.36 references: correcting “gross error”, addressing widespread public concern, and preserving confidence where a judge has substantially departed from sentencing norms. In this case, it supported intervention where the sentencing approach to risk management (not just tariff) was fundamentally misjudged.

(c) Calladine [1975] 1 WLR 411

The court highlighted the observation in Calladine that in arson cases a psychiatric report should usually be obtained. Although the absence of such a report did not itself dictate outcome, the Court treated it as increasing the importance of the probation assessment when evaluating the likelihood of serious future harm. The citation underscored that arson often raises issues (impulsivity, substance misuse, mental health, fixation) relevant to risk—central to dangerousness.

3.2 Legal Reasoning

(a) The key doctrinal move: s.36 can address an error in “sentence type”, not just “sentence length”

A central feature of the judgment is the Court’s express conclusion that an error in arriving at the appropriate nature of sentence—here, failing to impose an extended sentence where dangerousness is present—can render a sentence “unduly lenient” even if the custodial term is not markedly below range.

The Court framed the inquiry as follows:

• Custodial length may be within range, yet the sentence may still be outside the reasonable range if it fails to deal effectively with future risk.
• In an appropriate case, the appellate court can correct that error under s.36, subject to discretion (including fairness concerns and the “double jeopardy” feature of references).

This is a notable clarification: s.36 is not confined to “tariff arithmetic”; it can reach structural defects in the sentencing response to risk.

(b) Why the trial judge’s “non-dangerousness” decision was unreasonable on these facts

The trial judge declined dangerousness largely because (i) the index offending was of a “wholly different magnitude” from prior offending, and (ii) the offender would serve a substantial custodial term, with risk said to be manageable by a long restraining order.

The Court of Appeal held those reasons could not stand:

• Escalation and pattern, not a new type of conduct: the Court rejected the “different magnitude/nature” distinction. The index offences were more serious, but they were properly understood as an escalation within a continuing domestic abuse pattern (including earlier violence and damage involving partners).
• Arson as a marker of wider risk: the arson—set in the victim’s bedroom, using an accelerant, creating immediate danger of spread—was treated as qualitatively alarming. The Court accepted it may not have involved bringing accelerant to the scene, but still reasoned it was not purely spontaneous: actions were taken to assemble items, apply accelerant, and ignite.
• Professional risk assessment carried particular weight: in the absence of a psychiatric report, the probation assessment that the offender posed a high risk of serious harm to known adults and the public assumed enhanced significance. The Court also noted the offender’s continuing denial of responsibility (despite guilty pleas), which was seen as undermining prospects of effective risk-reduction work.
• Irrelevance of “length of sentence served” to dangerousness: the Court accepted the submission that the time to be served is not the correct driver of the dangerousness finding. Dangerousness concerns the risk on release and the need for an extended regime to manage it.
• Restraining order not a substitute for an extended sentence: while a restraining order can reduce contact risk, the Court treated it as inadequate to address the broader risk profile presented by strangulation followed by reckless arson and substance-fuelled violence.

(c) The Court’s remedial approach: restructure without increasing custody

Having found undue leniency, the Court nonetheless chose not to increase the overall custodial term (which it described as “low” but not so low, by itself, as to demand correction), explicitly referencing the “double jeopardy” character of s.36 references (the unfairness of exposing the offender to a major uplift after sentence).

Instead, the Court adopted a surgical remedy aligned to the identified error: it imposed an extended sentence that preserved the custodial term at five years but added a four-year extended licence and imposed Parole Board control at the two-thirds point.

3.3 Impact

(a) A practical precedent on s.36 scope: “undue leniency” can be structural

This decision provides a clear appellate statement that “unduly lenient” under s.36 can encompass the failure to impose an extended sentence where dangerousness ought to have been found, even if a determinate custodial term is within range. This widens the practical utility of s.36 for correcting sentencing outcomes that may appear superficially adequate in length but are deficient in public protection architecture.

(b) Reinforcing risk-focused sentencing in domestic abuse cases with escalation

While the Court cautioned against treating every domestic abuse case as automatically dangerous, it emphasised fact-specific indicators: strangulation, rapid escalation, repeat offending against partners, substance-related disinhibition, and arson endangering life. Future sentencing courts may treat these as strong features pointing toward dangerousness where the statutory test is met.

(c) Arson and evidential expectations: psychiatric input and risk assessment

By repeating Calladine, the Court implicitly reminds sentencing courts that arson frequently warrants psychiatric investigation. Where such evidence is absent, courts may be expected to explain carefully how they nonetheless assessed risk, particularly if departing from probation conclusions.

4. Complex Concepts Simplified

5. Conclusion

Wheatley-Taylor, R. v [2026] EWCA Crim 446 stands as a significant s.36 authority confirming that a sentence can be “unduly lenient” because it adopts the wrong sentencing framework for public protection—particularly by failing to find dangerousness and impose an extended sentence—even where the custodial term is not, standing alone, grossly short.

The Court’s approach also demonstrates a calibrated remedy: correcting risk-management deficiencies by adding an extended licence (and associated release controls) without necessarily increasing overall custody, where fairness considerations weigh against a substantial tariff uplift on a reference.