Court of Appeal sets out exceptional circumstances test in Hodge and others sentencing appeals

The Court of Appeal (Criminal Division) has given detailed guidance on the operation of the presumption in favour of suspended sentences under section 277A of the Sentencing Act 2020, in a judgement resolving four linked cases involving fatal and serious injury driving offences and a former police officer convicted of misconduct in a public office.

In Hodge & Ors v R [2026] EWCA Crim 1181, the Vice President of the Court of Appeal Criminal Division, Lord Justice Edis, sitting with Mr Justice Soole and Her Honour Judge Karu, considered three sentence appeals and an Attorney General's reference under section 36 of the Criminal Justice Act 1988, all turning on whether "exceptional circumstances" justified immediate custody despite the statutory presumption applying to custodial terms of twelve months or less.

The court held that the presumption, introduced to reduce the use of short immediate custodial sentences, requires a genuinely limited category of exceptions. Exceptional circumstances may properly be found where an offender's culpability or the harm caused, intended or foreseen is exceptionally high, or where the particular nature of the offence demands an exceptional degree of deterrence. Critically, the court found that the fact a driving offence resulted in death, being an element of the offence itself, cannot on its own amount to an exceptional circumstance, though it remains a relevant factor to be weighed holistically alongside others.

Applying this approach, the court allowed Fiona Hodge's appeal, finding no additional factors beyond the fact of death to justify departing from the presumption, and substituted a suspended sentence for her original twelve month immediate term. In Jason Carter's case, the court found the sentencing judge had wrongly classified the offence's culpability level, increased the notional starting point before reducing the final term to nine months, and held that, once correctly calculated, the sentence fell within the presumption and had to be suspended.

By contrast, the court dismissed Morne Potgieter's appeal. It found that the cumulative seriousness of his offending, involving two victims seriously injured, driving with excess alcohol and drugs, and a relevant history of recent motoring offences, amounted to exceptional circumstances justifying the immediate twelve month sentence imposed below.

In the fourth case, the Attorney General's reference concerning James McClements, a former police officer who had formed a sexual relationship with a vulnerable victim he met in the course of his duties, the court found the original suspended sentence unduly lenient. It concluded the offending warranted a sentence exceeding twelve months, meaning the presumption did not apply at all, and substituted an immediate term of fifteen months, drawing on the established line of authority that misconduct in public office by police officers will almost always require immediate custody.

The judgement also addressed the relationship between the exceptional circumstances test and the body of case law developed around mandatory minimum sentences, concluding that the reasoning in those cases offers only limited assistance given the different statutory purpose behind section 277A. The court further confirmed that the Sentencing Council's revised Imposition Guideline, issued following its earlier decision in R v Morgan [2026] EWCA Crim 886, correctly reflects the approach it has now endorsed. Reporting restrictions continue to apply in respect of a child victim in the Potgieter case under section 45 of the Youth Justice and Criminal Evidence Act 1999.