The 'unduly lenient' legislation ~ a recent Court of Appeal decision

Earlier this year, the Court of Appeal (Criminal Division) decided a reference by the Attorney General under the "unduly lenient" legislation (Criminal Justice Act 1988) - 'If it appears to the Attorney General - (a) that the sentencing of a person in a proceeding in the Crown Court has been unduly lenient; and (b) that the case is one to which this Part of this Act applies, he may, with the leave of the Court of Appeal, refer the case to them for them to review the sentencing of that person .....'

The report of the case is at Riley, R. v [2026] EWCA Crim 158 (04 February 2026)

The respondent (R) was 18 years of age when, in June 2023, he committed an offence of assault by penetration, contrary to section 2(1) of the Sexual Offences Act 2003. The maximum sentence available is life imprisonment. The victim ("C") of the assault was aged 14 at the time of the offence.

On 5 September 2025, in the Crown Court

at Nottingham, R pleaded guilty to the offence. He was sentenced until 11 November 2025 when the judge sentenced him to 2 years imprisonment suspended for 2 years. The suspended sentence order had a rehabilitation activity requirement (RAR) of 20 days and also 200 hours unpaid work. Further, a sexual harm prevention order was imposed to last for 10 years. In addition, a restraining order was imposed to last until further order.

The sentence should not have been pronounced as "imprisonment" because of section 227 of the Sentencing Act 2020. The sentence was for detention in a young offender institution.

The Court of Appeal (Singh LJ,  Farbey J and HHJ Altham) stated (para 39 ) - 'We consider that [the judge] was entitled to reach the conclusion that she did, particularly having regard to the age of the respondent and the prospect of rehabilitation in the community. The requirements which the judge attached to the suspended sentence order did include an element of punishment. Accordingly, the sentence passed in this case can be regarded as merciful but was not, in our view, unduly lenient."

As ever, a full reading of the judgment is essential - Riley, R. v [2026] EWCA Crim 158 (04 February 2026). As always, sentencing is a very fact specific exercise.

Principles:

The principles applied by the Court of Appeal when deciding "unduly lenient" applications were summarised in Attorney-General's Reference (Egan) [2022] EWCA Crim 1751 at para 3.

Links:

See also the Youth Justice Legal Centre - R v R: Suspended Sentence Not Unduly Lenient for 18-Year-Old in sexual offence case