The Cusp Principle: Holistic Categorisation of Harm in Knife‐Wounding Sentencing

Introduction

Bryson v R ([2025] EWCA Crim 569) is a landmark decision of the England and Wales Court of Appeal (Criminal Division) delivered on 24 January 2025. The case arose from an application by His Majesty’s Solicitor General under section 36 of the Criminal Justice Act 1988 for leave to refer an allegedly unduly lenient sentence. The offender, aged 31, had been convicted after trial of:

• Count 1: Wounding with intent to do grievous bodily harm, contrary to section 18 Offences Against the Person Act 1861;
• Count 2: Possession of an article with a blade or point, contrary to section 139 Criminal Justice Act 1988;
• and in breach of a suspended sentence for a prior offence of battery under section 39 Criminal Justice Act 1988.

The central issue on appeal was whether the trial judge had mis-categorised the offender’s culpability and the victim’s harm under the Sentencing Council’s “Offensive Weapons” guideline, placing it in Category A2 (harm) when, the Solicitor General argued, it should have been in the higher Category A1.

Summary of the Judgment

The Crown Court at Durham had imposed on Count 1 an extended determinate sentence of 8½ years’ custody plus a four-year extended licence, with concurrent terms on Count 2 and the suspended sentence. The Solicitor General contended that the judge erred by categorising the harm as A2 (starting point seven years, range six to ten), instead of A1 (starting point 12 years, range ten to sixteen), thereby rendering the sentence unduly lenient. The Court of Appeal, after granting leave to refer, declined to increase the sentence. It held that:

• The trial judge had properly adopted a “cusp” approach, recognising overlapping features of A1 and A2.
• Life-threatening harm lasting only until prompt medical intervention, with no long-term sequelae, did not automatically mandate Category A1.
• Sentencing requires a multifactorial, judicial balancing of culpability and harm, not a mechanistic label.
• The final term of 8½ years fell within a reasonable range and was not unduly lenient.

Analysis

Precedents and Statutory Framework

• Criminal Justice Act 1988, section 36: Empowers the Attorney (or Solicitor) General to refer potentially unduly lenient sentences to the Court of Appeal for review.
• Offences Against the Person Act 1861, section 18: Defines the offence of wounding with intent to do grievous bodily harm.
• Sentencing Council Guideline – “Offensive Weapons” (Knife) : Provides a two-step framework:
  • Step 1: Assess culpability (Categories A–C).
  • Step 2: Assess harm (Categories 1–3) and determine the guideline range.

Though the judgment did not rely on earlier reported cases, it built upon established principles that sentencing guidelines are aids to, not strict substitutes for, judicial reasoning. It reaffirmed that undue leniency must be judged against a judge’s holistic approach rather than on a single factor.

Legal Reasoning

1. Culpability
The offender’s use of a kitchen knife with a three-inch blade automatically placed the offence in high culpability (Category A).

2. Harm Categorisation
The guideline defines:
• Category 1 harm: life-threatening or permanently debilitating injuries;
• Category 2 harm: serious or long-term injuries not meeting Category 1’s full criteria.

Though the stab wounds were initially life-threatening, prompt pre-hospital transfusion and hospital treatment meant that the threat ceased quickly and no lasting physical or psychological harm remained beyond scarring.

3. The “Cusp” Approach
The judge recognised an overlap between A1 and A2 (“on the cusp”), tentatively placing the case at the top of the A2 range (10 years) before adjustments. This nuanced methodology involved weighing:

• The short duration of life-threat;
• No permanent loss of function or dependency;
• The seriousness of four stab wounds;
• The offender’s lack of remorse and prior knife-possession conviction.

Following mitigation (first custodial sentence, genuine remorse, constructive prison behaviour), the judge arrived at an 8½-year term.

4. Extended Sentence and Dangerousness
The judge correctly found the offender dangerous under section 226A Criminal Justice Act 2003, justifying an extended determinate sentence for public protection.

Impact on Future Sentencing

• Judicial Discretion: The decision underscores that sentencing guidelines are frameworks requiring individualized assessment, not rigid matrices.
• Life-Threatening Harm: A brief period of life risk, neutralised by medical response, does not permanently elevate harm to the highest category.
• “Cusp” Principle: Courts may place offences on the overlap of two harm categories when features of both are present, then adjust within ranges to reflect all relevant factors.
• Limits on Undue Leniency References: The Court will not intervene where the original sentence falls within a defensible range after a proper holistic exercise.

Complex Concepts Simplified

• Extended Determinate Sentence: A custodial term with a fixed minimum period plus an extended licence period for dangerous offenders.
• Category A Culpability: Highest culpability for offences involving highly dangerous weapons, such as knives.
• Category 1 vs Category 2 Harm:
  • Category 1: Particularly grave or life-threatening injuries, or permanent dependency.
  • Category 2: Serious injuries or permanent but not life-threatening harm.
• Undue Leniency Reference: A mechanism by which the Crown can ask the Court of Appeal to review and potentially increase a sentence deemed too low.

Conclusion

Bryson v R establishes and affirms the principle that sentencing under the “Offensive Weapons” guideline demands a multifactorial, holistic assessment of both culpability and harm. It clarifies that:

• A brief spell of life-threatening injury, promptly averted by medical care, does not automatically attract the highest harm category.
• Judges may legitimately place cases on the “cusp” of two categories and select a sentence within the overlapping range after considering aggravating and mitigating factors.
• Sentencing guidelines serve as structured tools, not rigid rules, preserving judicial discretion and ensuring fair, individualized outcomes.

This decision will guide lower courts in complex knife-wounding cases, reinforcing that sentencing is an exercise of careful judgment—not mere arithmetic—and that only truly “unduly lenient” sentences will prompt appellate intervention.