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Davis & Anor, R. v
Factual and Procedural Background
At a plea and trial preparation hearing, Applicant 1 and Applicant 2 pleaded guilty in the Crown Court to affray and unlawful wounding contrary to section 20 of the Offences Against the Person Act 1861. The prosecution offered no evidence on the section 18 wounding count, and not-guilty verdicts were entered on that count. [1]
The offending involved a group assault on the Victim, followed by a further confrontation in which Applicant 2 struck the Victim, causing him to fall onto concrete. Both applicants then kicked and punched him. The Victim suffered a fractured skull, required 25 stitches, developed a blood infection, and required a two-week hospital stay. [2][3][4]
The sentencing judge imposed concurrent custodial sentences totalling 27 months on each applicant. After the Single Judge refused leave to appeal, both applicants renewed their applications before the Court of Appeal (Criminal Division). [1][5]
Legal Issues Presented
- Whether the sentencing judge’s decision not to suspend the custodial sentences was wrong in principle. [6][7]
- Whether the decision not to suspend the sentences resulted in sentences that were manifestly excessive. [6][7]
- Whether the length of the custodial sentences was arguably manifestly excessive. The court rejected this proposed ground as not arguable. [6]
Arguments of the Parties
Applicant 1’s Arguments
- The sentencing judge had accepted that Applicant 1 had a strong prospect of rehabilitation in the community, a low risk of reoffending, significant personal mitigation, and family circumstances that would be harmed by immediate imprisonment. [8][9]
- The judge had also taken account of the delay in prosecuting the case, but the overall decision not to suspend the sentence was said to be wrong in principle or manifestly excessive. [6][9]
Applicant 2’s Arguments
- The sentencing judge had found a realistic prospect of rehabilitation, a low risk of reoffending, strong personal mitigation, and positive progress in the community that immediate custody would undermine. [8][9]
- Applicant 2 also relied on the substantial prosecutorial delay, for which he was not responsible. [9]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v Price [2023] EWCA Crim 1060 | The decision whether to suspend a custodial sentence involves a judgment weighing competing, incommensurable factors. An appeal will not succeed unless the decision was manifestly excessive or wrong in principle. | The Court applied this approach and held that the sentencing judge was entitled to give overriding weight to the seriousness of the offending. [10][11][12] |
| R v Aliaj [2026] EWCA Crim 1141 | The extension of the power to suspend a sentence under the 2026 legislation did not alter the established appellate approach. | The Court relied on this authority in concluding that the 2026 statutory change did not require interference with the sentencing judge’s evaluative judgment. [13][12] |
Court's Reasoning and Analysis
The sentencing judge correctly categorised the affray and section 20 offence, treated the section 20 offence as the lead offence, and applied the totality principle. The section 20 offence was assessed at four years before mitigation, reduced to three years, and then reduced by 25 per cent for the guilty plea to 27 months. The affray sentence was 12 months concurrent. [14][15][16][17][5]
The judge considered the applicants’ good character, personal mitigation, rehabilitation prospects, low risk of reoffending, family and employment circumstances, and the prosecutorial delay. She nevertheless concluded that the seriousness of the offending and the grave injury required immediate custody. [18][5][19]
The Court held that the 2026 extension of the power to suspend sentences did not change the applicable appellate test. The presence of factors favouring suspension did not establish an error of principle because sentencing involved an evaluative judgment rather than a mathematical balancing exercise. [10][11][13][12]
The Court found no error of principle in the sentencing judge’s reasoning. It was reasonably open to her to conclude that the seriousness of the joint and prolonged assault outweighed the factors favouring suspension. The proposed challenge to the length of the sentence was also not arguable. [6][20][12]
Holding and Implications
Both applications for leave to appeal against sentence were dismissed. The custodial sentences therefore remained in force. [12]
The decision confirms, on the facts stated, that strong rehabilitation prospects and other mitigating factors do not require suspension where the sentencing judge reasonably concludes that the seriousness of the offending requires immediate custody. [20][12]
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