“Visible weapon” means visible to the threatened victim: construing “threats with significant violence” and restricting suspension for racially aggravated threats to kill with a bladed article

1) Introduction

In R v Rayner [2026] EWCA Crim 922, the Court of Appeal (Criminal Division) (Stuart-Smith LJ, Cutts J and HHJ Lickley KC) determined a Solicitor General’s reference for undue leniency under s.36 Criminal Justice Act 1988.

The offender had pleaded guilty to: (i) having an article with a blade or point in a public place (an axe), and (ii) threats to kill, after making a prolonged 999 call stating he was armed and intended to kill a Muslim person, using sustained racist and anti-Muslim abuse. The Crown Court imposed 9 months’ imprisonment suspended for 2 years (with requirements).

The central issues on the reference were:

  • the proper guideline categorisation of the threats-to-kill offence (including the meaning of “visible weapon” and “threats with significant violence”);
  • the correct approach to statutory aggravation (racial/religious hostility and emergency-worker aggravation);
  • whether, applying the Imposition of community and custodial sentences guideline, the case could properly justify a suspended sentence;
  • the totality consequences of concurrent sentences for the two offences.

2) Summary of the judgment

The Court of Appeal held the original sentence was not merely lenient but unduly lenient. It:

  • rejected the Solicitor General’s submission that the threats-to-kill count should be category A on the basis of a “visible weapon” or “threats with significant violence”;
  • accepted that, even within category B2, the sentencing judge had materially undervalued aggravating factors, including prior violence-related offending, hostility on racial and religious grounds, and aggravation relating to an emergency worker;
  • held that this level of seriousness required immediate custody; suspension could not achieve proportionate punishment;
  • re-sentenced to 2 years’ immediate imprisonment for threats to kill (lead count) and 6 months concurrent for the bladed-article offence.

3) Analysis

3.1 Precedents cited

No earlier appellate authorities were cited in the approved judgment. The court’s reasoning is instead anchored in:

  • the relevant Sentencing Council offence guidelines (for threats to kill; and possession of a bladed article/pointed article);
  • the Imposition of community and custodial sentences guideline (the suspension decision);
  • statutory aggravation under the Sentencing Act 2020 (ss.66–67);
  • the common-law totality principle.

3.2 Legal reasoning

(A) Construing “visible weapon” in the threats-to-kill guideline

The Solicitor General argued that the threats should be category A because the offender had an axe which would have been visible to people in the street. The Court rejected this, holding that the guideline’s “visible weapon” factor concerns visibility to the threatened victim, not hypothetical visibility to third parties:

  • the threats were made to a police call handler by telephone;
  • to that victim, the weapon was not visible (even if audible and vividly described);
  • mere possibility that others might have seen the axe did not satisfy the guideline’s “visible weapon” concept for elevating culpability.

This is a practical, victim-focused construction that limits “visible weapon” from expanding into a general “weapon present somewhere” aggravator within the guideline categorisation.

(B) Construing “threats with significant violence”

The Court also rejected the submission that the graphic nature of the threatened killing (“chop their heads off”, “axe through skulls”) made the case one of “threats with significant violence”. It held the phrase is directed to situations where significant violence accompanies the threats, not where the threatened conduct is violently described:

  • in threats-to-kill cases, the threatened outcome is always the ultimate violence (death);
  • the guideline factor therefore differentiates cases by violence used during the making of threats (e.g., assaults, violent conduct contemporaneous with threats), not by the intensity of the language alone.

This clarifies a potential ambiguity in the guideline wording and prevents double escalation: otherwise, nearly every threats-to-kill case could be reframed as “significant violence” simply because death is inherently violent.

(C) Statutory aggravation: ss.66–67 Sentencing Act 2020

Although keeping the threats-to-kill count in category B2 (starting point 1 year), the Court held that the case required a substantial upward movement due to multiple aggravators:

  • Previous convictions involving violence and threatening behaviour (the Court considered the sentencing judge wrongly discounted their relevance);
  • Hostility on racial and religious grounds engaging s.66 Sentencing Act 2020 (the hostility was central and sustained);
  • Emergency worker aggravation under s.67 Sentencing Act 2020, because the threats were made to a police call handler acting in that capacity (even if the threatened victims were others).

The Court’s approach underscores that where statutory aggravation applies, judges must ensure it produces a real and meaningful uplift. While courts must avoid double counting, the judgment signals that describing the racist abuse as “almost part of the essence of the offence” cannot justify an uplift so limited that it fails to reflect the enhanced culpability and societal harm.

(D) The bladed-article guideline and “risk of serious disorder”

On the bladed-article offence, the Court rejected the submission that the case fell into the most serious harm category based on “risk of serious disorder”. It drew a distinction between:

  • possession of the weapon plus threats made over the phone; and
  • evidence of the offender interacting with the public in a way likely to trigger confrontation or disorder.

In the absence of evidence he addressed threats to people on the street, the Court kept the case within the lower harm categorisation. Nonetheless, it treated the offence as serious within that bracket and pointed to further aggravation including intoxication (an aggravator identified by the bladed-article guideline) and the same statutory hostility context.

(E) Totality and concurrency

The sentencing judge made both sentences concurrent. The Court accepted concurrency can be justified, but only if the lead sentence properly reflects the combined criminality. It found the judge did not “weight” either count to reflect the other, and applied totality by:

  • identifying lowest reasonable sentences viewed in isolation (21 months; and 9 months);
  • considering the extent of any downward adjustment for concurrency; and
  • concluding a reduction of more than 6 months from the 30-month arithmetical total was impossible on these facts, making 24 months the lowest defensible aggregate.

The Court ultimately imposed 2 years on the lead count and 6 months concurrent on the bladed-article count.

(F) Suspension: applying the Imposition guideline

The Court placed decisive weight on seriousness and public protection. Even acknowledging some mixed indicators of rehabilitation, it held:

  • the offending was “very serious”, “extreme” and “protracted”;
  • the offender posed ongoing risk and had a record of non-compliance (with further post-sentence breach indicators reinforcing that concern);
  • punishment could “only be achieved” by immediate custody, so the sentence “cannot properly be suspended”.

3.3 Impact

  • Guideline interpretation: The decision provides clear, citable appellate guidance narrowing “visible weapon” to visibility to the threatened victim, and narrowing “threats with significant violence” to cases involving violence accompanying the threat.
  • Hate and emergency-worker aggravation: It reinforces that ss.66–67 Sentencing Act 2020 should drive a tangible uplift; token uplifts risk being characterised as error producing undue leniency.
  • Suspension in extreme threat cases: It signals that where threats to kill are racially/religiously aggravated, prolonged, and linked to weapon possession, courts should be slow to conclude that a suspended sentence can satisfy punishment and public confidence even where there is some evidence of rehabilitation.
  • Totality discipline: It illustrates a structured way to check concurrency does not understate overall criminality—particularly important where two offences are factually linked (weapon possession and threats) but each has distinct harm and aggravation.

4) Complex concepts simplified

  • Unduly lenient: not just a sentence the appeal court would have made different, but one falling outside the range reasonably open to the sentencing judge.
  • Starting point / category range: guidelines provide a typical sentence (“starting point”) and an acceptable bracket (“range”), adjusted up/down for aggravation and mitigation.
  • Statutory aggravating factor: Parliament has required courts to treat certain features (e.g., racial/religious hostility; emergency-worker context) as increasing seriousness.
  • Totality: when sentencing for multiple offences, the overall sentence must be proportionate to the total criminality; concurrency is permissible, but only if the lead term reflects the whole.
  • Suspended sentence: a custodial term not immediately served, conditional on compliance; it is inappropriate if immediate custody is required to meet punishment and seriousness.

5) Conclusion

[2026] EWCA Crim 922 is most significant for its interpretation of two guideline concepts in threats-to-kill sentencing—“visible weapon” (visible to the victim) and “threats with significant violence” (violence accompanying the threats)—and for its firm message that extreme, protracted, racially/religiously aggravated threats to kill linked to weapon possession will ordinarily require immediate custody. It also illustrates careful appellate use of totality to ensure concurrency does not dilute the overall seriousness.