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Lindsay, R. v
Factual and Procedural Background
On 2 February 2024 the Appellant pleaded guilty at Crown Court. On 19 March 2024 Judge Young sentenced the Appellant to concurrent terms of imprisonment totalling 40 months and disqualified the Appellant from driving for 26 months from 19 March 2024. The Appellant had been remanded in custody from 19 December 2023. The custodial term is not challenged; the Appellant seeks to appeal the period of driving disqualification and applies for an extension of time. The single judge referred the application to the full Court of Appeal. The Appellant was released before the date then expected under a combination of (a) a post‑sentence change in early release rules effected by the Criminal Justice Act 2003 (Requisite and Minimum Custodial Periods) Order 2024 (the "SDS40" scheme) (order made 30 July 2024, in force for the Appellant on 22 October 2024) which reduced mandatory release from one‑half to 40% of sentence, and (b) release under the Home Detention Curfew (HDC). The effect was that when actually released the Appellant had a materially longer remaining period of disqualification to serve in the community than the recorder had anticipated at sentence.
Legal Issues Presented
- Whether it is arguable that the period of disqualification should be reduced by approximately 4 months because mandatory release took effect at 40% under the SDS40 scheme rather than at one‑half as anticipated at sentence;
- Whether it is arguable that the period of disqualification should be reduced by a further period (about 5 months) by reason of the Appellant's release under the Home Detention Curfew;
- Whether s.11(3) of the Criminal Appeal Act 1968 permits the Court of Appeal to re‑sentence having regard to changes in law or release practice occurring after sentence.
Arguments of the Parties
Appellant's Arguments
- The combined effect of the SDS40 scheme and the Appellant's release on HDC has produced a practical disqualification in the community of about 18 months rather than the 9 months the recorder intended; this makes the disqualification manifestly excessive now;
- Section 11(3) of the Criminal Appeal Act 1968 allows the Court to consider current circumstances (including post‑sentence changes) and to impose a different sentence if appropriate.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v Precedent A [2016] EWCA Crim 455 | Sets out the terms and practical guidance for ss35A and 35B Road Traffic Offenders Act 1988, including a checklist for sentencing involving disqualification. | Described as required reading; the Court relied on its guidance and added limited supplementary points about SDS40 and HDC. |
| R v Precedent B [2010] EWCA Crim 1111 | Explains the general purposes of disqualification (protecting the public; punishment and deterrence; avoid a ban longer than necessary). | Cited to explain sentencing balance and the need to avoid longer disqualification than necessary. |
| R v Precedent C [2020] EWCA Crim 614, [2020] 2 Cr App R (S) 44 | Authority on taking account of detention when considering disqualification; cited in relation to HDC and s35A context. | Used by the single judge to indicate that HDC does not justify reduction of disqualification (Parkin treated as not supporting HDC‑based reduction). |
| R v Precedent D [2025] EWC Crim 1091, [2026] 1 Cr App R (S) 7 | Applied a 40% figure to calculate an s35B uplift in circumstances where the judge below had erred and recalculation was required. | Court considered Ashman consistent with applying 40% when recalculating uplift where an error required fresh calculation; it did not mean sentences before SDS40 were retrospectively manifestly excessive. |
| R v Precedent E [2016] EWCA Crim 71, [2016] 2 Cr App R (S) 14 | Holds that the Court of Appeal is a court of review and will not generally re‑sentence simply because post‑sentence changes have occurred; rejects re‑sentencing on later developments as a general principle. | Relied upon to reject the submission that s.11(3) permits re‑sentencing simply because the release regime changed after sentence. |
| R v Precedent F [1999] 1 Cr App R (S) 52 | Affirms that the Court of Appeal is a court of review, not constituted to conduct a fresh sentencing exercise from the beginning. | Quoted to support the principle that the Court reviews the material before the sentencing court rather than re‑sentencing based on later events. |
| R v Precedent G [2015] EWCA Crim 1427 | Used in Roberts as an example context where post‑conviction developments did not justify wholesale re‑sentencing. | Referenced in support of the view that later events (including prisoner conduct or penal changes) do not generally justify re‑sentencing by the Court of Appeal. |
Court's Reasoning and Analysis
The Court proceeded from the established principles in the authorities concerning ss35A and 35B Road Traffic Offenders Act 1988 (as explained in Precedent A). It explained:
- s35A prescribes the extension period (one‑half or two‑thirds) to be added where the custodial term and disqualification relate to the same offence, and that statutory extension is unaffected by SDS40 or HDC;
- SDS40 (mandatory release at 40% rather than one‑half) can be relevant when fixing the discretionary part of a disqualification or the uplift under s35B because the sentencing judge should, where appropriate, ensure the period of disqualification is served while the offender is at liberty; two factual situations were identified where SDS40 matters (i) where disqualification relates to the offence being sentenced; and (ii) where s35B applies because disqualification is for a different offence;
- HDC is a post‑sentence decision of the Secretary of State (delegated to prison governors) and is inherently speculative at sentencing; therefore the possibility of HDC must play no part in the sentencing exercise for s35A, s35B or discretionary disqualification;
- The recorder's arithmetic and description of how the 26 months was composed was imperfect. The Court clarified the correct decomposition as: 6 months discretionary; 1 month s35A extension (from two 2‑month driving‑while‑disqualified sentences); and 19 months uplift under s35B (reflecting the 40‑month drug sentences).
- On the central appeal point, the Court applied the principle established in Precedent E (Roberts) and related authorities: the Court of Appeal is a court of review and will not re‑sentence simply because events (including changes in release practice) after sentence have altered the practical effect of the sentence. A disqualification that was not manifestly excessive at the time of sentence is not rendered manifestly excessive by later changes to release dates or by HDC.
Holding and Implications
SENTENCE OF DISQUALIFICATION UPHELD
Holding: Time was extended for bringing the appeal; leave to appeal and a representation order were granted. The Appellant's contentions were judged just arguable but insufficient to justify interference with the recorder's exercise of discretion. The disqualification sentence remains in force.
Direct consequences: The Court directed that the Crown Court record be amended to state the 26 months' disqualification as comprising a 6‑month discretionary period, a 1‑month s35A extension, and a 19‑month s35B uplift. No substitution of a different disqualification period was ordered.
Broader implication: The Court reaffirmed that post‑sentence changes to release practice (including SDS40 and HDC) do not normally permit re‑sentencing where the original sentence complied with the law and was not manifestly excessive; no new precedent departing from that principle was established.
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