R v David Kelly

Where section 277A of the Sentencing Act 2020 applies, a custodial sentence of up to 12 months must be suspended unless exceptional circumstances justify immediate imprisonment. The assessment is holistic and includes culpability, harm and the purposes of sentencing. Seriousness alone, or the public interest in deterrence alone, is unlikely to suffice. Their combined effect may establish exceptional circumstances on the particular facts. Earlier authority favouring immediate custody for an offence does not create an automatic exception to the statutory presumption. Exceptionally high culpability and harm, combined with the weighty public interest in deterring dangerous disruption aboard aircraft, can justify immediate custody.

The appellant pleaded guilty at Newcastle Magistrates’ Court to being drunk on an aircraft and racially aggravated harassment, alarm or distress. During an international flight, he repeatedly directed racist and homophobic abuse at passengers and crew. He threatened violence, pushed a crew member and initially refused to comply with safety instructions during landing. Passengers were distressed, and crew members were diverted from their duties.

Following committal for sentence, the Recorder at Newcastle Crown Court imposed 10 months’ immediate imprisonment for the aircraft offence and no separate penalty for the other offence. A pre-sentence report assessed the appellant as presenting a low risk of reoffending and recommended community interventions. The Recorder nevertheless found that the seriousness of the offending and the importance of deterrence justified immediate custody.

The appellant sought leave to appeal, contending that the sentence was manifestly excessive and that the presumption of suspension under section 277A of the Sentencing Act 2020 had not been displaced. The Registrar referred the application to the full court.

Held, granting leave to appeal but dismissing the appeal:

1. The sentence of 10 months’ imprisonment was severe but not manifestly excessive. In the absence of an offence-specific guideline, the Recorder had correctly assessed culpability and harm, aggravating and mitigating factors, and the need for custody. The custodial term had to be the shortest commensurate with the seriousness of the offence. Lower sentences in other aircraft cases were fact-specific comparisons. The sustained abuse, threats, disruption during landing, effect on families and diversion of crew from their duties made this offending particularly serious. The Recorder had also considered the favourable references, gap in offending, health and low assessed risk of reoffending (paras 22–27).

2. Section 277A of the Sentencing Act 2020 required suspension unless exceptional circumstances justified withholding it. Such circumstances were not those commonly encountered. The holistic assessment required renewed consideration of culpability and harm, together with whether the purposes of sentencing were exceptionally served by immediate custody. The court had to identify and explain the factors making the case exceptional and determine whether they justified refusing suspension. The Recorder’s analysis satisfied the approach in R v Hodge and others [2026] EWCA Crim 1181, although that decision post-dated sentence (paras 28–34).

3. Earlier authority favouring deterrent sentences of immediate custody did not automatically displace the statutory presumption for aircraft offences or any other offence category. Subject to section 277A(3), the presumption applied to all offences where an adult received imprisonment of up to 12 months. Deterrence alone was unlikely to establish exceptional circumstances. As explained in R v Morgan [2026] Crim 886, seriousness alone was also unlikely to suffice. Their collective impact could nevertheless meet the test on particular facts (paras 35–36).

4. Deterrence remained weighty because drunken disruption in the enclosed environment of an aircraft carried inherent safety risks. Here, exceptionally high culpability and harm combined with that public interest to justify immediate imprisonment. The court expressly declined to establish an offence-wide exception to the presumption. The sentence therefore stood (paras 35–39).

• Court of Appeal (Criminal Division): In R v David Kelly [2026] EWCA Crim 1348 , the court granted leave to appeal sentence and dismissed the appeal on 7 October 2026.
• Crown Court at Newcastle upon Tyne: On 13 August 2026, Recorder Gordon imposed 10 months’ immediate imprisonment for being drunk on an aircraft and no separate penalty for racially aggravated harassment, alarm or distress.
• Newcastle Magistrates’ Court: On 15 July 2026, the appellant pleaded guilty to both offences and was committed to the Crown Court for sentence.