R v Louise Payne

The decision whether to suspend a custodial sentence is discretionary. On appeal, it is not enough that the sentencing judge might have exercised the discretion differently. The appellant must show a proper basis for interference, such as overlooking or misunderstanding a material consideration.

Where the judge has evaluated mitigation, mental health, caring responsibilities and family consequences, the appellate court will not interfere with the weight given to them. A determined attempt to intimidate a key witness in serious criminal proceedings may be so grave that only immediate custody properly reflects the offence, despite substantial mitigation and severe consequences for dependants.

The appellant pleaded guilty at Leicester Magistrates' Court to intimidating a witness, contrary to sections 51(1) and (6) of the Criminal Justice and Public Order Act 1994. The case was committed to the Crown Court at Leicester, where Recorder Thomas KC imposed eight months' imprisonment, a restraining order and a victim surcharge. The length of the custodial term was not challenged.

With leave to appeal, the appellant challenged only the refusal to suspend the sentence. She relied on her good character, remorse, rehabilitation, mental health, caring responsibilities for five children and the risk to her housing. The central issue was whether the sentencing judge was entitled to conclude that the offence was so serious that only immediate custody was appropriate.

1. Disposition. The appeal was dismissed. The challenge concerned suspension of the sentence, not the appropriateness of the eight-month term itself.
2. Appellate approach. Whether to suspend a sentence is a discretionary decision. It is insufficient that the discretion might have been exercised differently. The appellant must establish adequate and appropriate grounds for intervention.
3. Assessment of mitigation. The sentencing judge had carefully considered the factors favouring suspension, including the appellant's good character, mental health, remorse, role as primary carer and the consequences for her children and other carers. No material consideration had been overlooked or misunderstood. The weight given to those factors was not a matter for appellate interference.
4. Seriousness of the offending. The appellant had made a determined and successful effort to intimidate a key witness shortly before the trial of serious allegations, including rape. The conduct was a direct attempt to thwart the judicial process. Witness intimidation strikes at the heart of the justice system because witnesses must be able to give evidence without fear of reprisals.
5. Despite the mitigation and the considerable consequences for the appellant's family, the sentencing judge was entitled to conclude that the offence was so serious that only immediate custody could properly reflect its seriousness. The sentence, restraining order and victim surcharge therefore remained in force.

• Court of Appeal (Criminal Division): On 16 December 2025, the court dismissed the appeal against the refusal to suspend the eight-month custodial sentence: [2025] EWCA Crim 1756.
• Crown Court at Leicester: On 12 November 2025, Recorder Thomas KC sentenced the appellant to eight months' imprisonment, together with a restraining order and a victim surcharge.
• Leicester Magistrates' Court: On 18 August 2025, the appellant was committed for sentence after pleading guilty to intimidating a witness.