A sentence for causing death by driving does not become unlawful just because it appears lenient or causes public concern. The Court of Appeal will increase it under the unduly lenient sentence scheme only where it falls outside the range reasonably available to the sentencing judge, often because the judge selected the wrong guideline category or made another error.
Two recent decisions - Attorney General's Reference (Sherchan) [2026] EWCA Crim 1126 and Attorney General's Reference (Nicholson) [2026] EWCA Crim 1128 - show how a mistaken assessment of the driving can turn a suspended sentence into several years' immediate imprisonment.
How does an unduly lenient sentence reach the Court of Appeal?
For offences covered by the scheme, a person can ask the Attorney General's Office to consider a Crown Court sentence. A Law Officer decides personally whether to refer it to the Court of Appeal under section 36 of the Criminal Justice Act 1988. The Court of Appeal must then give permission before it can substitute a more severe sentence.
The threshold is deliberately high. The court is not conducting an ordinary sentencing appeal and will not intervene simply because it might have chosen a longer term. According to the CPS guidance on unduly lenient sentences, the sentence must be outside the range that a judge, applying the relevant principles and giving proper weight to the factors, could reasonably impose. An error of principle or a sentence that damages public confidence can satisfy the test.
The guideline category must be identified first
Sentencing begins with the offence guideline. For causing death by dangerous driving, culpability depends principally on the standard and duration of the driving. Category C is reserved for driving that created a significant risk of danger but was only just over the dangerous-driving threshold. Category B covers cases between the highest and lowest categories and includes conduct such as an unsafe manoeuvre or driving at an inappropriate speed.
The current starting point for category B causing death by dangerous driving is six years' custody, with a range of four to nine years. Category C has a three-year starting point and a range of two to five years. The difference is substantial. The judge must classify the driving itself before adjusting for aggravating features, mitigation and any guilty plea.
Sherchan: an unsafe overtake was category B
In Sherchan, the offender attempted to overtake on the A417 near Cirencester and collided head-on with an oncoming car, killing its driver. The sentencing judge placed the driving in category C and imposed 21 months' imprisonment, suspended for two years.
The Court of Appeal held that the manoeuvre belonged in category B. Once the oncoming vehicle was visible, there was no room to complete the overtake and a collision was inevitable. The court took account of genuine remorse, mental-health difficulties, a good record and the delay before charge, but those matters could not convert category B driving into category C.
The court concluded that the least sentence properly open before guilty-plea credit was four years. After the plea reduction, it imposed three years' immediate imprisonment. It also increased the driving disqualification to six years and six months and quashed a fine that should not have been imposed alongside the sentence.
Nicholson: drifting over the centre line was not a momentary lapse
In the Nicholson case, a driver drifted across the centre line of the A66 and struck an oncoming car. One person died and several others were seriously injured. The offender's blood contained a cocaine metabolite above the specified limit, but the collision evidence indicated that fatigue or prolonged inattention was the most likely cause.
The judge treated the driving as category C under the guideline for causing death by careless driving while under the influence of drink or drugs and imposed a two-year term suspended for two years. The Court of Appeal held that driving on the wrong side of the road through more than a momentary lapse was unsafe positioning and placed the case in category B. Serious injuries to other people were a substantial aggravating feature, not a neutral part of the fatal offence.
After allowing for considerable personal mitigation and the guilty plea, the court imposed four years' imprisonment, then reduced it by a further six months to recognise unpaid work already completed under the suspended sentence. The final term was three years and six months' immediate custody, with a disqualification of six years and nine months.
Why did mitigation not preserve the suspended sentences?
Mitigation remains important. Remorse, previous good character, mental ill health, caring responsibilities, delay and rehabilitation may all reduce the term. They are applied after the court has assessed the seriousness of the driving and any additional harm. They cannot be used to place conduct in a lower culpability category or to avoid the correct custodial starting point.
The same sequence applies to suspension. A court first calculates the proper custodial term and only then asks whether the law permits and justifies suspending it. Where the correct exercise produces a sentence of several years, suspension is not available. In both recent cases, the category error was therefore decisive.
What else can the Court of Appeal change?
If it accepts a reference, the Court of Appeal can quash the sentence and replace it with one it considers appropriate. That can include immediate custody, a longer disqualification and an extended re-test. It can also correct an unlawful ancillary order. The court will take account of the fact that the offender has already been sentenced and may give credit for punishment already completed, but that does not prevent a substantial increase.
The time limit is short
A request for review must currently reach the Attorney General's Office by 11.59 pm on the 28th day after sentence. Anyone may submit a request, although only a Law Officer can refer the case and only qualifying offences are covered. The Court of Appeal may increase the sentence, leave it unchanged or refuse permission to refer it.
What do the cases mean in practice?
The central lesson is that category selection must reflect the driving proved by the evidence. An unsafe overtake with no room to return, prolonged inattention, or driving on the wrong side of the road should not be treated as a fleeting error merely because the offender has powerful mitigation. Where the wrong category produces a sentence outside the reasonable range, the Court of Appeal is likely to intervene.
How Chetwode can help
Cases involving death by driving require careful analysis of collision evidence, guideline categorisation, personal mitigation and disqualification. Chetwode Criminal Defence Solicitors can advise at the sentencing stage and if an unduly lenient sentence reference is made. This article provides general information; the correct approach always depends on the offence, the applicable guideline and the evidence in the individual case.