Unduly Lenient Means Gross Error: Court of Appeal reaffirms narrow scope of section 36 references in Category 1A child sex cases (R v Kenyon [2025] EWCA Crim 1238)

Introduction

This commentary examines the decision of the England and Wales Court of Appeal (Criminal Division) in R v Kenyon [2025] EWCA Crim 1238, delivered by Singh LJ on 12 September 2025. The case arose on an application by His Majesty’s Solicitor General for leave to refer a sentence as unduly lenient under section 36 of the Criminal Justice Act 1988 (the 1988 Act). The respondent had pleaded guilty to four offences arising from a single afternoon’s conduct on 29 December 2024 involving a 15-year-old complainant: three counts of sexual activity with a child (penetrative) contrary to section 9(1) of the Sexual Offences Act 2003 (the 2003 Act), and one count of causing or inciting a child to engage in sexual activity contrary to section 10(1) of the 2003 Act.

On 24 July 2025 the Crown Court imposed an extended determinate sentence (EDS) under section 279 of the Sentencing Act 2020 (the Sentencing Code), consisting of a custodial term of 4 years 9 months and 15 days and an extended licence period of 3 years, concurrent on all counts. The Solicitor General challenged the adequacy of the custodial term but did not challenge the finding of dangerousness or the imposition of an EDS.

The Court of Appeal refused leave, holding that the sentencing judge’s assessment fell within the permissible range and did not disclose the “gross error” necessary to justify intervention under section 36. The decision is an important reaffirmation of the high threshold for Attorney General references and the appellate court’s deference to first-instance evaluative sentencing decisions in guideline-governed sexual offences.

Note on reporting restrictions: The anonymity provisions of the Sexual Offences (Amendment) Act 1992 apply. No information likely to identify the complainant may be published during her lifetime unless properly waived or lifted under section 3 of that Act.

Summary of the Judgment

- The sentencing framework: The offences (sexual activity with a child and causing/inciting a child to engage in sexual activity) attract a maximum of 14 years. The applicable Sentencing Council Definitive Guideline (Sexual Activity with a Child/Causing or inciting a child to engage in sexual activity, effective 1 April 2014) placed the conduct in harm Category 1 (penetration) and culpability Category A (significant disparity in age): Category 1A has a starting point of 5 years’ custody with a category range of 4 to 10 years.

- Sentencing at first instance: Treating counts 4 and 6 (penile-vaginal penetration) as lead offences, the recorder adopted a notional sentence of 6 years (an upward departure of 12 months from the 5-year starting point), applied a 20% reduction for guilty pleas, and imposed an EDS with a 3-year extension to reflect dangerousness. All terms were concurrent.

- The Solicitor General’s challenge: The Crown argued that multiple aggravating factors (prior relevant sexual offending, numerous breaches of notification requirements and a SHPO, commission on licence just six days after release, ejaculation, no contraception, and the complainant’s alcohol-affected vulnerability) required a substantially greater uplift from the 5-year starting point and/or greater reflection of multiple offences within the custodial term. No complaint was made about the 20% plea reduction.

- The Court of Appeal’s decision: Applying long-standing authority on the section 36 jurisdiction, the Court held that the sentence, including the degree of uplift and concurrency, did not fall outside the range that a reasonable sentencing judge could impose. This was not a case of “gross error” warranting appellate intervention. Leave to refer was refused.

Detailed Analysis

Precedents Cited and Their Influence

• Attorney-General’s Reference (No 4 of 1989) (1990) 90 Cr App R 366: Lord Lane CJ’s seminal formulation of the “unduly lenient” test was central. The Court highlighted:
  • Undue leniency is established only where the sentence “falls outside the range” which a judge could reasonably consider appropriate.
  • Sentencing is an “art rather than a science”; trial judges are well placed to weigh competing factors; and “leniency is not in itself a vice.”
  • Even if unduly lenient, the Court retains a discretion whether to increase the sentence.
  These principles directly structured the Court’s refusal to substitute its own evaluation for the recorder’s nuanced balancing of guideline factors.
• Attorney-General’s Reference (No 132 of 2001) (Bryn Dorian Johnson) [2002] EWCA Crim 1418; (2003) 1 Cr App R (S) 41: Potter LJ emphasised that AG References serve to maintain public confidence where a judge appears to depart substantially from norms. The Court in Kenyon acknowledged that purpose but found no substantial departure here, reinforcing that the jurisdiction is not a vehicle to recalibrate within-range sentences.
• Attorney-General’s Reference (Egan) [2022] EWCA Crim 1751; [2023] 2 Cr App R (S) 16: The Court reaffirmed the four key guideposts:
  • Primacy of the first-instance judge’s evaluative role.
  • Intervention only where the sentence falls outside the reasonable range.
  • Leave only in “exceptional circumstances” and not in borderline cases.
  • Section 36 addresses cases of “gross error.”
  In Kenyon, these Egan points provided the analytical lens for declining to interfere, particularly given the recorder’s structured engagement with the guideline and danger assessment.

Legal Reasoning and Application

The Court’s reasoning proceeds from a disciplined application of guideline methodology and the section 36 jurisprudence:

• Guideline categorisation and starting point:
  • Harm: Category 1, due to penetration (including digital penetration for count 1 and penile penetration for counts 4 and 6).
  • Culpability: Category A, due to significant disparity in age. The recorder also addressed vulnerability via alcohol but did not expressly rely on the “targeting a particularly vulnerable child” indicator.
  • Starting point: 5 years’ custody (range 4–10 years) for Category 1A.
• Aggravation and mitigation:
  • Aggravation relied upon by the Crown included: prior relevant sexual offending against a child, multiple failures to comply with notification requirements and a SHPO, commission on licence within six days of release, ejaculation, lack of contraception, and alcohol-related vulnerability.
  • Mitigation highlighted for the respondent included: the 15-year interval since prior sexual offending; qualitative distinctions from the index conduct (prior relationship vs. present opportunism with a stranger); homelessness/substance misuse context for breaches; some rehabilitative efforts in custody; and a timely enough guilty plea to merit 20% credit (offered pre-section 28 cross-examination).
  The Court did not attempt to reweigh these factors afresh; it confined itself to asking whether the recorder’s balancing fell within the reasonable range.
• Uplift from starting point and totality:
  • The recorder uplifted from 5 to 6 years (pre-plea) on the lead counts, then applied a 20% plea reduction to reach approximately 4 years 9 months and some days as the custodial term. The Court accepted that outcome as within range despite the multiplicity of aggravating features advanced by the Crown.
  • On totality, the recorder imposed concurrent sentences for what was essentially a single episode of offending in a tight time and place continuum. The Court implicitly accepted concurrency, and rejected the submission that a markedly higher lead term was necessary to reflect overall criminality.
• Extended determinate sentence and dangerousness:
  • The recorder found dangerousness and imposed an EDS with a 3-year extension period. Although defence expert evidence (Dr Beavan) questioned whether the statutory test was met, the Court noted the finding of dangerousness and that the Solicitor General did not challenge the EDS itself.
  • The Court therefore treated the EDS as a legitimate protective measure that properly responded to the assessed risk (high risk of further sexual offending and serious harm to children), especially in light of repeated non-compliance and offending while on licence.
• The section 36 threshold:
  • Central to the refusal was the reminder that section 36 does not confer a resentencing jurisdiction. The question is not whether the Court of Appeal would have imposed a higher sentence, but whether the sentence imposed is outside the spectrum of reasonable responses.
  • Even accepting the seriousness of the aggravating constellation, the Court held that a notional 6-year lead term (reduced to c. 4 years 9 months for plea) remains within the guideline range and cannot be stigmatised as “unduly” lenient. There was no “gross error.”

Points of Particular Interest

• Ejaculation and non-use of contraception as aggravation: The Crown advanced both; the defence cautioned against double counting where ejaculation is already factored, and noted that non-use of contraception is not expressly listed in this guideline as an aggravator. The Court did not need to resolve this, leaving the question open. Practitioners should therefore be careful to articulate the distinct harm or risk (e.g., pregnancy or STI transmission) if relying on non-use of contraception as an aggravating feature, and to avoid overlap with any separate reliance on ejaculation.
• Concurrency for multiple penetrations in a single episode: The Court did not disturb the concurrent approach. This tacitly acknowledges the orthodox totality analysis that where multiple counts arise from a compact, continuous incident with a single complainant, concurrency is generally appropriate, with the overall criminality reflected through the lead term uplift rather than by imposing consecutive terms.
• Plea credit at 20%: The respondent originally pleaded not guilty at PTPH but offered pleas before the section 28 date. The recorder awarded 20% credit. The Court did not criticise that approach, which aligns with the Reduction in Sentence for a Guilty Plea guideline where the maximum one-third discount is reserved for the first reasonable opportunity (not taken here).
• Section 385 Sentencing Code re-listing: The sentence was adjusted within the 56-day window. The Court’s account confirms routine, proper use of the Crown Court’s power to vary or rescind within the statutory time limit.

Impact and Forward-Looking Significance

Kenyon is best understood as a strong restatement rather than a doctrinal innovation. Its practical effects nonetheless matter:

• Narrow aperture for section 36 references: Prosecutors should calibrate AG Reference decisions to cases that demonstrably fall outside the guideline range, involve material errors of principle, or display palpable misapplication of totality. Seeking to relitigate the degree of uplift within the range is unlikely to succeed.
• Deference to well-reasoned extended sentences: Where a recorder has clearly articulated dangerousness and crafted an EDS, the Court will hesitate to adjust the custodial term absent clear missteps. The protective function of the extension period is recognised as a legitimate component of the overall sentence structure.
• Aggravation in Category 1A child sex cases: Even a dense cluster of aggravating features does not automatically propel the custodial term to the upper end of the 4–10-year range, especially where mitigating features, plea credit, and totality are conscientiously addressed. The case underscores that proportionality remains an evaluative synthesis, not a tally.
• Concurrency in single-episode offending: The decision tacitly supports the continued use of concurrency for tightly connected offences against a single complainant, coupled with a measured uplift to the lead term for overall criminality. Challenges arguing for heavy further uplift merely because of concurrency are likely to face headwinds under section 36.
• Unresolved contours of “non-use of contraception” as aggravation: While not deciding the point, the case highlights the need for careful advocacy. To the extent practitioners wish to rely on such a feature, they should anchor it in demonstrable additional harm or risk and avoid duplication with ejaculation or other factors.

Complex Concepts Simplified

• Unduly lenient sentence (section 36 CJA 1988): The Attorney General (or Solicitor General) may ask the Court of Appeal to review certain Crown Court sentences. The Court will interfere only if the sentence falls outside the range that a reasonable judge could impose, having regard to all relevant factors. It is not a rehearing or resentencing; the threshold is “gross error,” and leave is exceptional.
• Extended Determinate Sentence (EDS): For certain “specified” offences and where the offender is assessed as dangerous, the court may impose an EDS comprising:
  • a custodial term (reflecting punishment and deterrence), and
  • an extended licence period (public protection through extended supervision).
  An EDS does not change the custodial term calculation, but it ensures longer post-release control where risk is significant.
• Dangerousness (statutory sense): The court must find a significant risk to members of the public of serious harm from further specified offences. This assessment is informed by the offence, criminal history, risk reports, and behaviour on supervision.
• Guideline structure (Sexual Activity with a Child/Causing or inciting): Step 1 fixes harm and culpability categories; Step 2 identifies the starting point and range and then adjusts for aggravating/mitigating factors; later steps address guilty plea reduction and totality.
• Category 1A: Highest harm (penetration) and higher culpability (e.g., significant age disparity). Starting point 5 years; range 4–10 years.
• Totality and concurrency: When multiple offences arise from the same incident against the same victim, sentences are often concurrent. The court may instead reflect the combined criminality by modestly increasing the lead term, avoiding disproportionate cumulative sentences.
• Guilty plea reductions: The earlier the plea, the greater the reduction, up to a maximum of one-third when indicated at the first stage. Later pleas generally attract smaller discounts (e.g., 20% in Kenyon), especially where the defendant initially pleaded not guilty.
• Sexual Offences (Amendment) Act 1992 anonymity: It is unlawful to publish information likely to identify a complainant in a sexual offence case during their lifetime, unless the restriction is properly lifted or waived.

Conclusion

R v Kenyon is a careful reaffirmation of the limits of the Court of Appeal’s section 36 jurisdiction. Even in a serious Category 1A child sexual offending case with multiple aggravating features and an offender on licence, the Court will not tinker with a sentence that lies within the guideline range and reflects a conscientious application of the guideline, totality, and public protection through an EDS. The key takeaway is not that the aggravating features lacked bite, but that the appellate standard is not “would we have gone higher?” It is “is the sentence outside the reasonable range and the product of gross error?”

For practitioners, Kenyon provides a clear signal: AG References should be reserved for clear departures from principle or range. In child sexual offence cases specifically, it also underscores the continuing relevance of concurrency for single-episode offending, the proper role of the extended licence in addressing risk, and the need for precise argumentation on aggravation (particularly where ejaculation and non-use of contraception are raised) to avoid double counting. Above all, it preserves the primacy of first-instance evaluative judgment—“sentencing is an art rather than a science”—and ensures that mercy, proportionality, and public protection remain in measured equilibrium.