Suspended Sentences After Sentencing Act 2026: Extended Power to 3 Years Does Not Dilute the “Wrong in Principle / Manifestly Excessive” Test

1) Introduction

In R v Davis & Anor [2026] EWCA Crim 1198, the Court of Appeal (Criminal Division) (Lord Justice Holgate, Mr Justice Bryan, Mr Justice Dexter Dias) considered renewed applications for leave to appeal against sentence following refusal by the Single Judge. The applicants, Davis and Heath, had pleaded guilty at the Crown Court at Guildford to affray and unlawful wounding (s.20 Offences Against the Person Act 1861).

The core issue on appeal was narrow but significant: whether the sentencing judge erred in declining to suspend custodial sentences (27 months) notwithstanding strong personal mitigation, low assessed risk of reoffending, and rehabilitative prospects—now that section 2 of the Sentencing Act 2026 had increased the maximum term capable of being suspended to 3 years.

2) Summary of the Judgment

The Court of Appeal dismissed both applications. It held that:

  • the judge’s categorisation and custodial terms were not challenged as wrong (and were accepted as properly reached);
  • the decision not to suspend was an evaluative judgment open to the judge on the facts;
  • the extension of the suspended sentence power under the Sentencing Act 2026 did not alter the established appellate approach to interference;
  • given the seriousness of the violence (including repeated head kicks and grave injury), immediate custody was justified.

The court emphasised that, although multiple guideline factors pointed towards suspension for each applicant, the seriousness of the offending could properly outweigh them.

3) Analysis

3.1 Precedents Cited

R v Price [2023] EWCA Crim 1060

The court treated R v Price [2023] EWCA Crim 1060 as the leading statement of principle on appellate review of suspension decisions. Quoting at [15] (from Price at [12]), it reinforced that:

  • the suspend/immediate custody decision is often among the hardest in sentencing;
  • the guideline’s factors are not to be “counted” arithmetically;
  • the competing factors are “incommensurable” and require judicial evaluation;
  • the Court of Appeal will not readily interfere: an appellant must show the decision was wrong in principle or manifestly excessive.

This case applied Price to confirm that even where strong factors favour suspension, that does not itself show any error in refusing to suspend.

R v Aliaj [2026] EWCA Crim 1141

The applicants’ argument implicitly relied on the expanded statutory power to suspend (up to 3 years) introduced by the Sentencing Act 2026. The court rejected any suggestion that this expansion lowered the threshold, citing R v Aliaj [2026] EWCA Crim 1141 at [14]: the 2026 Act “has not altered” the Price approach to appellate interference with suspension decisions.

The precedent function of Aliaj here is confirmatory: the statutory expansion is about jurisdictional ceiling, not a re-weighting of the guideline or a relaxation of the seriousness test.

3.2 Legal Reasoning

The court’s reasoning proceeds in three steps:

  1. Concession on term and categorisation: Both counsel accepted the judge correctly categorised the s.20 offence and that a 3-year starting point (pre-plea) and 25% plea credit were not arguable errors ([13]). This narrowed the appeal to suspension only.
  2. Guideline factors were considered: The court noted it was not alleged the judge failed to apply the Imposition of Community and Custodial Sentence Guideline or ignored relevant matters ([14]). Indeed, the judge expressly acknowledged powerful pro-suspension considerations (rehabilitation prospects, low risk, family impact, maturity over time, delay) ([10]–[12], [14]).
  3. Evaluation of seriousness entitled the judge to refuse suspension: Applying Price, the court held that the presence—even strong presence—of pro-suspension factors does not compel suspension. The seriousness of the deliberate re-engagement and prolonged violence (including head kicks and grave injury) could properly tip the balance to immediate custody ([16]).

The appellate court framed the applicants’ case as effectively asserting that no reasonable judge could have refused to suspend. It rejected that characterisation: the refusal was within the range of reasonable sentencing judgments, and the court agreed with the Single Judge that immediate custody was correct in both cases ([16]).

3.3 Impact

The decision’s practical significance lies in its clarification of the post–Sentencing Act 2026 landscape:

  • No “new presumption” of suspension: Increasing the maximum suspendable term to 3 years does not create an expectation that sentences below that ceiling should usually be suspended.
  • Serious violence remains a strong “custody-now” indicator: Where offending involves deliberate escalation, group violence, repeated blows/kicks to the head, and grave injury, immediate custody will often remain justified even for offenders of previous good character with strong rehabilitation evidence.
  • Appellate restraint is reaffirmed: The court reinforces that challenges to suspension decisions are difficult unless a principled misdirection is shown—mere disagreement with the balance struck will not suffice.

4) Complex Concepts Simplified

  • Suspended sentence: A custodial term imposed, but not immediately served, provided the offender complies with requirements and does not commit further offences during the operational period. Breach can activate the prison term.
  • “Wrong in principle” vs “manifestly excessive”:
    • Wrong in principle means the judge applied the wrong legal test, ignored a mandatory consideration, took an irrelevant consideration, or otherwise misdirected themselves.
    • Manifestly excessive means the outcome falls outside the range of sentences reasonably open to the judge.
  • Totality: The principle that the overall sentence for multiple offences must be just and proportionate to the total offending, not an accumulation that becomes excessive.
  • Offence categories (culpability/harm): Sentencing guidelines commonly assess (i) blameworthiness (“culpability”) and (ii) impact/injury (“harm”) to locate the case within a category and range.
  • s.20 OAPA 1861 unlawful wounding: A serious non-fatal offence involving wounding/inflicting grievous bodily harm without the specific intent required for s.18; nonetheless it can attract substantial custody where violence is sustained and injuries are grave.

5) Conclusion

R v Davis & Anor [2026] EWCA Crim 1198 confirms that the Sentencing Act 2026 expansion of the suspended sentence ceiling to 3 years does not change the appellate approach or dilute the central question: whether the case is so serious that only immediate custody can be justified. Applying R v Price [2023] EWCA Crim 1060 (and consistent with R v Aliaj [2026] EWCA Crim 1141), the court reaffirmed that suspension is an evaluative judgment, not a box-ticking exercise, and upheld immediate custody for grave, deliberate, repeated violence notwithstanding strong mitigation and rehabilitation evidence.