Unduly Lenient Sentence: Correct Application of the Perverting the Course of Justice Guideline and Avoiding Double Counting of Mitigation

1. Introduction

In R v Evans [2026] EWCA Crim 885, the Court of Appeal (Criminal Division) (Lord Justice Dingemans, Mr Justice Garnham and Mrs Justice Heather Williams DBE) determined an Attorney General’s Reference under section 36 of the Criminal Justice Act 1988 challenging, as unduly lenient, a sentence imposed by the Crown Court at Southwark.

The respondent, Ms E, a former police constable, was convicted after trial of doing acts tending or intended to pervert the course of public justice. She had falsely reported being stopped and intimately searched by an officer, a lie that triggered a major investigation and led to the arrest of an innocent serving police officer. The Crown Court imposed 12 months’ immediate imprisonment.

The central issues on the Reference were: (i) how the new Sentencing Council guideline for perverting the course of justice (effective 1 October 2023) should be applied; (ii) whether the judge misapplied the guideline’s step structure by effectively double counting mitigation; and (iii) whether, even if the sentence was unduly lenient, the Court should exercise discretion not to increase it given the respondent had already been released from custody.

2. Summary of the Judgment

• The Court held the offence properly fell within category 1A (starting point 4 years, range 2–7 years).
• It identified two culpability A features (sustained conduct and abuse of position as a serving officer) and two category 1 harm features (serious consequences and serious distress to an innocent party, including family impact).
• It concluded the Crown Court judge went too far below the category range and appeared to err in how the guideline steps were applied, risking double counting.
• The Court found the sentence was unduly lenient and substituted 2 years’ immediate imprisonment.
• Despite the respondent’s release and reintegration, the Court exercised its discretion to increase the sentence and directed surrender the same day.

3. Analysis

3.1 Precedents Cited

The judgment did not cite earlier case authorities by title. Instead, it is structured around:

• Section 36 of the Criminal Justice Act 1988 (the unduly lenient sentence jurisdiction); and
• the Sentencing Council guideline for “perverting the course of justice” (effective 1 October 2023).

The absence of cited appellate authorities is itself notable: the Court treated the guideline methodology as the primary controlling framework and focused on ensuring sentencing judges adhere to its sequencing and logic.

3.2 Legal Reasoning

(a) Step 1: Correct categorisation (culpability and harm)

The Court confirmed the agreed categorisation of category 1A. It emphasised that:

• Sustained conduct placed the offending in culpability A: the respondent maintained the false account through messages to supervisors, oral briefing, a signed witness statement, a video interview, provision of location materials, and a route drive-through with investigators.
• Abuse of position/office was plainly engaged: a serving police officer’s false report carries a particular institutional credibility and predictably triggers significant operational responses.
• Serious consequences for an innocent party were present: the innocent officer was arrested at home in front of family, detained and suspended.
• Serious distress was present and extended materially to the officer’s family; the Court accepted overlap for the officer but treated family impact as an additional dimension of harm.

(b) Step 2: Starting point, range, and adjustments—why the Crown Court’s approach was flawed

Category 1A carries a 4-year starting point with a 2–7 year range. The Court highlighted the guideline’s direction that the judge should:

• use the starting point and then adjust within the range to reflect features of culpability/harm, including multiple factors within a category; and
• only thereafter consider offender mitigation under the guideline’s separate heading (and, in an exceptional case, potentially move outside the range).

The sentencing judge reduced the sentence to the bottom of the range (2 years) because the case was “extraordinary” and not a targeted attempt to “put the officer in the frame”, and then reduced it again to 12 months by reference to good character and mitigation. The Court considered this sequencing risked double counting because matters used to justify reaching the bottom of the range were closely connected to, or overlapped with, mitigation later used to reduce further.

Importantly, the Court did not treat “snowballed out of control” as diminishing seriousness to the extent that it justified a sentence below the range once the real-world consequences and the respondent’s office were properly weighed.

(c) Mitigation: powerful but not decisive

The Court accepted substantial mitigation, including:

• previous good character and positive service history;
• complex PTSD arising from a profoundly traumatic background (while noting no explicit causal link to offending was made);
• caring responsibilities for stepchildren;
• loss of employment (dismissal from the police);
• post-sentence rehabilitation (reconnecting with family, obtaining work); and
• information that the respondent had been targeted in prison.

Nonetheless, the Court concluded that, even after giving full credit to mitigation, the appropriate sentence was 2 years’ immediate imprisonment—i.e., at the bottom of the guideline range, but not below it.

(d) “Unduly lenient” and the Court’s discretion to increase

The Court identified a clear guideline error producing a sentence “too low”. It then confronted the discretionary question: whether to refrain from increasing the sentence given the respondent had been released and had rebuilt stability.

The Court decided that the seriousness of the offence—especially the operational impact (over 1500 investigative hours) and the profound consequences for an innocent officer and family—required correction. It therefore granted leave, allowed the Reference, and increased the sentence even though it meant returning the respondent to custody.

3.3 Impact

The decision is likely to be cited in future sentencing and unduly lenient references for three practical propositions:

1. Guideline discipline matters: where sentencing guidelines prescribe steps, judges must avoid collapsing step-2 adjustments (culpability/harm within the range) into later mitigation, and must guard against double counting.
2. Police-office credibility as aggravation: false allegations or reports by serving officers will readily engage abuse of position and may drive categorisation and sentence severity because such reports predictably mobilise major resources and can imperil innocent colleagues.
3. Return-to-custody is a live outcome in AG references: post-sentence progress and release do not immunise an unduly lenient sentence from upward correction where the justice of the case requires it.

4. Complex Concepts Simplified

Perverting the course of justice

Conduct that interferes with the administration of justice—here, false allegations and sustained deception that diverted investigators and implicated an innocent person.

Attorney General’s Reference (unduly lenient sentence)

A statutory mechanism (under section 36 of the Criminal Justice Act 1988) allowing the Court of Appeal to increase certain sentences if they fall outside the range a judge could reasonably impose.

Category 1A (guideline categorisation)

A high seriousness bracket combining high culpability (A) with the highest harm (1), producing a 4-year starting point and a 2–7 year range.

Starting point vs category range

The starting point is the benchmark sentence for a typical case in that category; the range is the permitted band for moving up or down depending on case-specific factors.

Double counting

Using the same factor twice to reduce (or increase) sentence—e.g., using a feature to justify reaching the bottom of the range and then using it again as “mitigation” to go below the range.

5. Conclusion

[2026] EWCA Crim 885 reinforces that the perverting the course of justice guideline must be applied in its intended step-by-step structure. Where a defendant’s conduct combines sustained deception, abuse of police office, and severe consequences for an innocent party, substantial personal mitigation may justify moving to the lower end of the range—but not, without a properly reasoned basis, far below it. The Court also confirmed that, in an Attorney General’s Reference, the public interest in correcting an unduly lenient sentence can justify increasing the term even after the offender has been released and has begun to rebuild their life.