R v Alex Fenton [2026] EWCA Civ 936

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[2026] EWCA Civ 936

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Between

R E XCrown

London

WC2A 2LL

ON APPEAL FROM THE CROWN COURT AT CAMBRIDGE

(HIS HONOUR JUDGE HURST) [35NT1661422]

Case No 2026/00663/A5 Tuesday 30 June 2026

B e f o r e:

LADY JUSTICE YIP DBE

MRS JUSTICE CHEEMA-GRUBB DBE

MR JUSTICE LINDEN

____________________

ATTORNEY GENERAL'S REFERENCE

UNDER SECTION 36 OF

THE CRIMINAL JUSTICE ACT 1988)

____________________

- v -

Between

ALEX FENTON

____________________

Computer Aided Transcription of Epiq Europe Ltd,

Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE

Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

_____________________

Mr B Holt appeared for Attorney General

Mr P D Harte appeared for Offender

____________________

J U D G M E N T

Date 2026-06-30

Tuesday 30 June 2026

[1]This is an application by His Majesty's Solicitor General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court a sentence which she submits is unduly lenient. We grant leave.

[2]The offender, Alex Fenton, is now aged 27. At the time of the offending he was aged 23.

[3]On 23 January 2026, in the Crown Court at Cambridge, the offender entered guilty pleas on two indictments. On the first, the offender pleaded guilty to one offence of inflicting grievous bodily harm, contrary to section 20 of the Offences against the Person Act 1861. On the second indictment he pleaded guilty to three offences relating to drugs. He was sentenced by His Honour Judge Hurst to a total sentence of 16 months' imprisonment, suspended for two years, with the following requirements: a Rehabilitation Activity Requirement of up to 30 days; 210 hours of unpaid work; an alcohol abstinence and monitoring requirement for 180 days; and an electronically monitored curfew between the hours of 7.30 pm and 5 am for two months.

[4]On 4 March 2026, the case was re-listed, pursuant to section 385 of the Sentencing Act 2020, since it had been identified that the length of the alcohol and abstinence requirement exceeded the maximum available. Accordingly, that element was adjusted to 120 days. The sentence was otherwise unaltered.

[5]The sentence of 16 months' imprisonment suspended for two years was imposed on the section 20 matter. The drugs offences were dealt with by concurrent sentences. For being concerned in the supply of a Class A drug (cocaine), the sentence was four months' imprisonment, suspended for two years. For being concerned in the supply of a Class B drug (cannabis), the sentence was one month's imprisonment, suspended for two years. The offender also pleaded guilty to simple possession of cannabis. The record indicates that no separate penalty was imposed for that offence, although that does not appear to have been announced in court at either hearing.

[6]The thrust of the Solicitor General's application is that the judge erred in his approach to the drugs offences, which resulted in an overall sentence that was unduly lenient. It is submitted that the sentences for the drugs offences are individually too low, particularly in relation to the Class A matter, for which the judge appeared to have regard to the wrong sentencing guideline. Additionally, it is argued that the sentences for the drugs offences should have been ordered to run consecutively to that for the section 20 offence. Since the sentence on the section 20 matter was not increased to reflect the drugs offending, the Solicitor General argues that the offender has effectively escaped punishment for the drugs offences entirely.

[7]The facts may be stated briefly. In the early hours of 7 August 2022 the offender was in the company of a young woman. They were arguing and the woman appeared distressed. The victim, Mark Ireland, was with then his then girlfriend who intervened to assist the distressed woman. Mr Ireland followed. The offender appears to have taken exception to this and attacked Mr Ireland. He approached him from behind and threw a punch to his head. Two other men, Louis Smith and Kyle Smith, who were apparently unconnected to the offender, became involved. All three punched Mr Ireland to the head and face. In total, the offender punched him four times. The assault ended when Kyle Smith threw a punch which caused Mr Ireland to fall to the ground. He was knocked unconscious.

[8]Mr Ireland suffered a traumatic brain injury. He was in a state of deep unconsciousness and was bleeding from his nose and ear. His Glasgow Coma Scale score was 3 at the scene. All his vital signs were affected. On examination at hospital, he was found to have fractures to the skull and sheering of the nerve fibres, with bleeding on the brain. He had posturing associated with brain damage or disrupted brain activity. He was ventilated and admitted to critical care. His GCS score improved over the coming days, but did not return to normal until ten days after the assault. He remained in hospital for three weeks.

[9]Mr Ireland provided two Victim Personal Statements. In September 2023 he described significant ongoing symptoms. He had to re-learn how to run and cycle. He had ongoing balance problems which resulted in the loss of hobbies. He could not drive. He had ongoing psychological issues which led to problems with alcohol and the breakdown of his relationship. In January 2025 he described continuing to suffer "a bit" with co-ordination and balance, but said that his memory had returned to normal. There was an ongoing psychological impact. He still could not drive and continued to use alcohol as a coping mechanism.

[10]The offender dropped his mobile telephone at the scene of the assault. It revealed that he was concerned inn the supply of both cocaine and cannabis at street dealing level. Further, a search of the offender's home on 22 August 2022 in the context of an unrelated matter uncovered the presence of 135 grams of cannabis and approximately £225 in cash. The offender's plea to simple possession of cannabis related to that which was found in his home.

[11]The offender's mobile phone showed that bulk messages were sent out. For example, a message reading "About all day. If you need, can deliver", which was sent to 37 contacts. There were also messages showing the offender obtaining cannabis in quantities of up to one kilogram. Prices discussed were between £3,500 and £3,700. He offered two ounces for sale at £400. The offender had received a message which read:

"Yo, you got sniff' (a reference to cocaine). The reply was "yeah"

. He said that the price was £40 for half a gram. On another occasion, he told a customer that he did not have "sniff".

[12]The offender both delivered drugs and also provided a location for customers to come to him. He was paid in cash and by bank transfer.

[13]The offender was identified from CCTV footage of the assault. However, he was not arrested until 2024. He was charged in February 2025. The offender pleaded not guilty to the drugs matters at a plea and trial preparation hearing in April 2025. Having applied to dismiss charges relating to the assault, he pleaded not guilty to an offence under section 18 and the alternative section 20 count in July 2025. The trial for the offender, Louis Smith and Kyle Smith was listed for September 2026. By 2 December 2025, the offender had indicated that he would enter the guilty pleas which he did and which were acceptable to the Crown.

[14]A pre-sentence report was accordingly ordered in advance of the hearing on 23 January 2026.

[15]The judge determined that the offender should be afforded 20 per cent credit for his guilty pleas. No issue is taken in relation to that.

[16]The offender had four previous convictions for four offences. In 2018 he received a community order for simple possession of cocaine. In 2019 he received a further community order for possessing cannabis with intent to supply. On 12 July 2022 (less than a month before the index assault), he received a community order for racially aggravated assault.

[17]The offender said that he deeply regretted his involvement in the assault of Mr Ireland. He was not aware of the full extent of his injuries. He accepted that although he had not delivered the blow that knocked the victim to the ground, had he not become involved the situation would not have escalated. He said that he was very, very sorry and he had written a letter of apology to the victim.

[18]The pre-sentence report detailed an unstable upbringing, with exposure to parental substance misuse and time in foster care. The author noted the role of substance misuse in the offender's offending and concluded that work could be done to assist him with those issues.

[19]In relation to the drugs, the offender said that he supplied drugs to others in order to obtain free drugs for himself, although he was earning good money as a roofer and was not under financial pressure.

[20]The offender has a 7 year old child with a previous partner, whom he sees regularly. His current partner was expecting their first child in April 2026. He was resigned to an immediate custodial sentence, but expressed concern about missing the birth of the child and about the impact that imprisonment would have on his son. He had taken some steps to reduce his substance misuse and to manage his alcohol intake. It was suggested that an alcohol abstinence requirement would provide significant support to his efforts to desist.

[21]The offender was assessed as posing a medium risk of serious harm to members of the public. Such harm was not assessed as being imminent, because he had not committed a violent offence since 2023 and was making efforts to desist from both alcohol and cocaine. It was noted that he had previously engaged well with community based penalties.

[22]In relation to the section 20 offence, the prosecution submitted, by reference to the relevant Sentencing Council guideline that culpability fell somewhere between A and B. It was said that the assault was persistent and that the offender participated in a joint group assault on the victim. No features of lesser culpability were present.

[23]The prosecution further submitted that harm was category 1. The injury was grave and/or life threatening. It was noted that particularly grave injury can encompass severe, potentially life-threatening injuries, even if not permanent.

[24]The judge noted the absence of a report from a neurosurgeon to say that the victim was "lucky to be alive, or he is lucky not to be permanently paralysed". He concluded that this was a category 2B case. For category 2B the starting point is two years' custody, and the range is one to three years.

[25]In sentencing, the judge suggested that all three offenders were "not adults at the time". In fact, as we have said, the offender was aged 23 at the time of the offence. The other defendants were aged 19. The judge suggested that the starting point after trial for the offender would have been two years' imprisonment, but that he was required to discount that to reflect his youth. That brought the sentence down to 20 months, before he applied the discount of 20 per cent for the guilty plea. In that way he arrived at the sentence of 16 months' imprisonment.

[26]In relation to the drugs convictions, the prosecution submitted that the offender had played a significant role as he had had an operation a function within a chain. He expected significant financial advantage and had some awareness and understanding of the scale of the operation. The judge concluded that this was a lesser role case.

[27]It was agreed that the harm was category 3, as this was street dealing. The judge suggested that the starting point in relation to the drugs matter would have been 26 weeks' imprisonment after trial, had the offender been an adult. In doing so, the judge appears to have overlooked the fact that count 1 on the indictment involved Class A drugs and to have been looking solely at the guideline for Class B drugs. A category 3 lesser role offence involving Class A drugs gives a starting point of three years' imprisonment and a range of two to four and a half years. For Class B drugs, the starting point is a high level community order and a range of a low level community order to 26 weeks' custody.

[28]The judge then reduced that sentence to four months to reflect the offender's youth, and further discounted for the guilty pleas to three months.

[29]The sentencing remarks then became somewhat confused. The judge said that there would be one month concurrent in relation to the cannabis matter, before saying: "What that therefore means is that in relation to the drugs matters there is four months to be imposed consecutively to the violence".

[30]He then considered the Sentencing Council guideline on the imposition of community and custodial sentences. He again referred to the youth of the offenders, and in relation to this offender he said that he was conscious that he had a baby on the way. He concluded that the sentence could be suspended. In imposing the sentence, he said that the sentences on the drugs matters, which he expressed as four months on count 1 and one month on count 2, would be concurrent with the 16 months on the section 20 offence. When counsel for the Crown asked for clarification, the judge confirmed that the sentence on the drugs matters were to run concurrently with that on the section 20 offence.

[31]The Solicitor General is prepared to concede that while the sentence on the section 20 matter was lenient, it was not unduly so. In arriving at that concession, the Solicitor General accepts that the judge was entitled to assess the offender's case as falling within category 2B.

[32]Mr Harte, on behalf of the offender, accepts that the sentence on the section 20 matter was undoubtedly lenient, but maintains that it was not unduly lenient. He argues that the judge's approach to this element of the sentence throws some light on his intention overall, namely, to pass a sentence that did not result in immediate imprisonment to reflect the offender's mitigation and his change in circumstances since the offending.

[33]We are bound to say that we have some reservations about accepting that the harm suffered by Mr Ireland could be placed into category 2. While the evidence as to the long-term impact of the injury was somewhat limited, it is apparent that this was a significant traumatic brain injury. Nevertheless, we acknowledge that the question of whether the injury was particularly grave in the context of a section 20 offence is primarily a matter of judgment for the sentencing judge. In the absence of any more detailed evidence, and bearing in mind the need to afford the benefit of any doubt to the offender, we take the view that the judge was entitled to place harm in category 2, albeit we think that on any basis it must at least be viewed as towards the upper end of that category. We also note that no application has been made in relation to the sentences passed on the other offenders, and it can properly be said that the blow that probably resulted in the most severe damage was inflicted by one of the other offenders, rather than this offender.

[34]The judge having taken a starting point of two years, the Solicitor General submits that the reduction of four months on account of the offender's youth was "generous". We agree. While still relatively young, the offender was an adult. He was aged 23. Weighing the aggravating and mitigating factors is again primarily a matter for the sentencing judge. Relevant previous convictions aggravated all matters. The assault was committed whilst intoxicated. The location of the offence was an aggravating factor. As the judge said, "blows to the head are particularly dangerous and the concern I have as a sentencing judge is to make sure that the streets of any city centre should not become recreation grounds for fighting and violence between drunken young men". Set against that, the delay and the offender's personal mitigation were capable of providing some mitigation.

[35]While we might well have struck a different balance, in view of the approach taken by the Solicitor General, we are prepared to accept that an eventual sentence of 16 months' imprisonment on the section 20 matter, even if undoubtedly generous to the offender, is not unduly lenient.

[36]However, when considering totality, we shall have to bear in mind that this part of the sentence could only be viewed as falling within the appropriate range if it is accepted that significant allowance was made by the judge for the offender's personal mitigation and the delay.

[37]The submission made by the Solicitor General is that it was the way in which the judge dealt with the drugs indictment that resulted in an unduly lenient sentence. It is submitted, first, that the judge appears to have considered the Class B guideline when imposing a sentence for a Class A offence, which resulted in sentence outside the permissible range on count 1. It is accepted that the judge was entitled to conclude that count 1 on the drugs indictment would fall within the lesser role. The offender did not always have Class A drugs for sale and the quantities on offer appear to have been limited. A conclusion that he was selling small amounts to fund his own addiction was therefore justified. The Solicitor General, therefore, does not challenge the finding that the Class A offence fell within the lesser role category 3. That has a starting point of three years' imprisonment, with a range of between two and four years. Having placed the offending in the lesser role category, there was no basis to reduce the notional starting point. The offending was not limited to a single transaction, but continued over a period of time.

[38]In relation to the Class B offence, it is difficult to see how the judge's conclusion that this fell into the lesser role category can be justified. The offender was organising wholesale purchases of substantial quantities of cannabis and advertising the drug for sale to a wide market. In our view, the only proper conclusion is that this was a significant role category 3 case, giving a starting point of 12 months' imprisonment and a range of 26 to three years. The offender's previous conviction for possession with intent to supply cannabis, for which he had received a community order, was highly relevant to this offence. It was also relevant in considering the offence relating to the Class drugs.

[39]Given our view that the sentence on the section 20 matter can only be considered justified if it is accepted that it includes a very significant reduction for the delay and the personal mitigation, care must be taken not to double count that mitigation. On that basis, and having regard to the offender's offending history, we can see no proper basis for reducing the sentence that would have been imposed on count 1 after trial below three years' imprisonment. A sentence above the starting point was required on count 2.

[40]The principle of totality requires us to look at the drugs offending overall. The sensible course was to reflect the totality of the drugs offending in the sentence imposed on count 1 (the Class A matter) and to make the sentence on count 2 (the Class B offence) concurrent. This called for a sentence of not less than three years' imprisonment after trial, reducing to 29 months after allowing the 20 per cent discount for the guilty plea. An appropriate concurrent sentence on count 2 would have been not less than 15 months' imprisonment, reduced to 12 months for the guilty plea.

[41]The second limb of the Solicitor General's argument is that there was no logical explanation for the sentences on the section 20 and the drugs matters being ordered to run concurrently with each other. The Solicitor General agues that the two indictments represented entirely separate offending.

[42]We agree with the Solicitor General's submission that the way in which the judge structured the sentence resulted in the offender escaping punishment for the drugs offending altogether. The judge made no uplift to the sentence on the section 20 matter to reflect the drugs offending. There was considerable confusion in the sentencing remarks as to what he intended, as he had initially said that the drugs sentence would be imposed consecutively to the sentence on the section 20 offence.

[43]Had the judge ordered the sentences on the two indictments to run consecutively to each other, as he originally indicated he would, that might have gone some way to justifying the apparently lenient sentence on the section 20 matter. We are unable to accept Mr Harte's submission that the judge was entitled to take the course that he did to arrive at a sentence that could be suspended. We take the view that the only proper course was to order the sentences on the two indictments to run consecutively to one another.

[44]Despite the reservations that we have expressed, given the approach taken by the Solicitor General, we are prepared to adopt the judge's sentence of 16 months' imprisonment for the section 20 offence. However, we do so only on the basis that we have explained. Further, we do not think that any additional reduction can then be made for totality. The sentence of 29 months' imprisonment, which we have identified as the least sentence which can properly be imposed for the drugs matters, must therefore be served consecutively to the term of 16 months, making a total sentence of 45 months' imprisonment.

[45]Standing back and looking at the offending as a whole, that is the least sentence which, in our judgment, can properly be imposed. Even that could be said to be generous to the offender.

[46]In the circumstances, the question of suspension does not arise, since the aggregate custodial term significantly exceeds the maximum term capable of suspension.

[47]We therefore quash the sentences which the judge imposed and substitute the following sentences: for the section 20 matter, 16 months' imprisonment; on the drugs indictment, on count 1, 29 months' imprisonment, which will be consecutive to the sentence on the section 20 offence; on count 2, a concurrent term of 12 months' imprisonment; and on count 3 there will be no separate penalty.

[48]The Victim Surcharge Order should be adjusted to reflect the appropriate amount on the basis of the revised sentence. The orders for forfeiture and destruction of the mobile phone and drugs, and for forfeiture of the sum of cash recovered shall remain.

[49]The sentence will commence from the date that the offender surrenders to custody.

[50]We direct that the offender surrender to Milton Police Station, Cambridgeshire by 4 pm today. ________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk ______________________________