R v John Edward Butterworth & Anor

A sentencing guideline is not a statute and is not interpreted by applying statutory canons or by consulting every document published during its preparation or revision. The guideline’s ordinary language must be applied to the facts, with the sentencer deciding whether a fact-sensitive factor such as a sustained or repeated assault is present. No precise number of blows or duration is required. Later appellate decisions that apply existing guidance do not retrospectively change the law. An individual sentence must be assessed on its own merits. Evidence that other sentencers experienced difficulty, or that the guideline was later revised, does not establish that the earlier sentence was unlawful or manifestly excessive.

Two unrelated offenders, John Butterworth and Richard Grant, were sentenced under the 2011 guideline for offences contrary to section 18 of the Offences against the Person Act 1861. Each sentencing judge treated the assault as involving a sustained or repeated assault and placed it in category 1. Their applications for leave to appeal were refused by a single judge and were not renewed to the full court.

The Criminal Cases Review Commission referred both cases, considering that later clarification of the guideline created a real possibility that the sentences would be reduced. The appeals raised whether later guidance showed that the sentences were manifestly excessive and whether Sentencing Council publications could assist interpretation of the earlier guideline.

1. Both appeals dismissed. The CCRC references did not disclose a new argument on a point of law. The later decisions had not changed the law or added to the existing guidance. The appeals therefore amounted to attempts to re-argue grounds already considered and rejected.

2. A sentencing guideline is not a statute. It uses concise terminology across an infinite range of factual circumstances and requires judicial assessment. The sentencer must decide whether the relevant category factor is present in the particular case. Neither the 2011 guideline nor the guidance in R v Smith (Grant Christopher) [2015] EWCA Crim 1482 prescribed a precise number of blows or duration for an assault to be sustained or repeated.

3. The Sentencing Council’s research papers, consultation documents and draft or revised guidance were not relevant sentencing guidelines. They were not required to be considered in applying the 2011 guideline. The limited reference to consultation material in R v Dyer [2013] EWCA Crim 2114 did not support a general proposition permitting or requiring consideration of such material. The analogy with Parliamentary material failed because a guideline is not a statute. The court left open whether there might be circumstances in which other Council materials could be considered.

4. The later decisions in R v Xue [2020] EWCA Crim 587 and R v Summerville [2020] EWCA Crim 944 followed and applied the guidance in R v Smith (Grant Christopher) [2015] EWCA Crim 1482; they did not clarify or alter it. Difficulty encountered by some sentencers, or subsequent revision of the guideline, did not show that every earlier sentence was erroneous. A sentence had to be considered on its own merits.

5. On the facts, both judges were entitled to place the offences in category 1. Butterworth’s attack comprised repeated blows, further violence on the ground, strangulation and additional force, with high physical and psychological harm. Grant’s attack involved multiple blows and several stabs and ended through intervention by others. The sentences were not manifestly excessive.

• Court of Appeal (Criminal Division): [2022] EWCA Crim 1821. References by the Criminal Cases Review Commission were heard together. Both appeals were dismissed.
• Single judge: Each application for leave to appeal against sentence was refused. Neither application was renewed to the full court before the CCRC references.