R v James Wheatley-Taylor

For a reference under section 36 of the Criminal Justice Act 1988, the Court of Appeal may intervene where an error in the type of sentence, including failure to address future risk through an extended sentence, places the sentence outside the range reasonably open to the sentencing judge. The custodial term need not itself be so low as to justify correction. Dangerousness is fact-sensitive: domestic abuse does not automatically establish it, but escalation, a pattern of violence, strangulation and arson may show a serious and wider risk. In an arson case, a psychiatric report should usually be obtained, and its absence may heighten the importance of an experienced probation assessment.

Following guilty pleas, the Crown Court at Great Grimsby imposed five years’ imprisonment for reckless arson and intentional strangulation, with the terms consecutive, and made ancillary orders. The judge declined to find the respondent dangerous, despite a history of domestic abuse and a probation assessment of high risk of serious harm. The Solicitor General referred the sentence under section 36 of the Criminal Justice Act 1988, challenging principally the type of sentence rather than its total length. The central issue was whether failure to impose an extended sentence made the sentence unduly lenient.

The court granted leave to refer the sentence and allowed the reference. It held that the failure to make a finding of dangerousness had produced an unduly lenient sentence.

1. Section 36 threshold. The approach stated in Attorney General’s Reference No 4 of 1989 [1989] 11 Cr.App.R (S) 517 was applied. A sentence may be increased only if it falls outside the range that a judge, applying all relevant factors, could reasonably consider appropriate. The court also noted the purposes identified in Attorney General’s Reference No 132 of 2001 (R v Johnson) [2003] 1 Cr.App.R (S) 41.
2. Nature of sentence. An error concerning the type of sentence, including the treatment of future risk, can make a sentence unduly lenient even where the custodial term alone is not sufficiently low to require correction. The court retains a discretion whether to intervene.
3. Dangerousness. Domestic abuse does not automatically require a finding of dangerousness. The assessment is fact-sensitive. Here, the offender’s previous domestic offending, the escalation in severity, the prolonged strangulation and the subsequent arson demonstrated a greatly increased risk to intimate partners and a wider risk to the public. The five-year determinate sentence was insufficient to manage that risk.
4. Arson evidence. The court repeated the guidance in Calladine [1975] 1 WLR 411 that a psychiatric report should usually be obtained in an arson case. In its absence, the experienced probation assessment was particularly important.

Because of the double jeopardy aspect of a section 36 reference, the total custodial term was not increased. The four-year sentence for arson was quashed and replaced by an extended sentence of nine years, comprising five years’ custody and a four-year extended licence. The one-year sentence for strangulation was quashed and replaced by a concurrent determinate sentence of three years. All other sentences and orders remained in force.

• Court of Appeal (Criminal Division): On 31 March 2026, on a reference by the Solicitor General under section 36 of the Criminal Justice Act 1988, granted leave, found the sentence unduly lenient, and substituted an extended sentence. [2026] EWCA Crim 446
• Crown Court at Great Grimsby: On 3 December 2025, imposed a total sentence of five years’ imprisonment, comprising four years for reckless arson and one year consecutively for intentional strangulation.