Court of Appeal quashes immediate custodial sentence after sentencing judge had suggested it might be suspended if defendant pleaded guilty

The interesting case of R v Lee Thomas [2026] EWCA Crim 792 reminds observers that sentencing can be as much about process as outcome and that judges cannot appear to suggest a sentence outcome and resile from it.

The facts of the case are unusual. On 9 May 2024, Lee Thomas(LT) made a false 999 call to police claiming that he saw the complainant, Peter Moody (PM), spike his friend’s drink and behave inappropriately towards her.

Further, he falsely claimed to be a member of the Royal Military Police and gave a fake service number which culminated in the arrest of PM who was extremely distressed. He was searched and nothing of note was found on him.

In investigating the allegation police examined CCTV which proved the allegations were fabricated, identifying the woman alleged to be the subject of a “spiking”. She not only explained that she did not feel unwell, but the CCTV evidenced that she was “walking unaided and seemingly completely fine.”

The police attended LT’s address to arrest him, initially in relation to impersonating a police officer. He was asked to provide his military ID and he told officers he did not have it. The officers later confirmed with the Royal Military Police that the appellant had never served in the said force.

He was subsequently arrested and charged with doing an act tending to pervert the course of justice, and at the Plea and Trial Preparation Hearing (PTPH) he pleaded not guilty and the matter was set down for trial.

Approximately, one week before the trial a pre-trial hearing took place. At that hearing the allocated trial Judge, HHJ Kidd, made the following remarks,

“Mr Lee needs to understand that any sentence of two years or less is capable of being suspended, a suspended sentence order, is capable, not will be but is capable of being suspended. And one of the things that a sentencing judge would be looking at in such a case would be whether or not a defendant had reflected on the evidence and pleaded guilty and potentially, with the assistance of a pre‑sentence report, may be in a position to persuade the sentencing court that an alternative to immediate imprisonment may be imposed.

It is, if correct, an exceptionally odd set of behaviours in this case. Whether or not alcohol, drugs or mental health have played a background role in this case will be something that is within Mr Lee’s own knowledge. I do not want Mr Lee to lose the opportunity of obtaining credit for plea with the consequences that may flow if he is found guilty after a trial. So, Mr Lee, I want you to go and speak to … Ms Johnstone now who, I am sure, in light of my comments, will give you advice both about the evidence itself and the potential consequences if you are convicted.”

Following the Judge’s comments the case was put back for LT to discuss the Judge’s comments and he subsequently returned before HHJ Kidd and changed his plea from Not Guilty to Guilty.

His sentence was adjourned for the preparation of a pre-sentence report.

At the sentence hearing, it was established that LT was 26 at the time of sentence. He had six previous convictions for nine offences from between November 2018 to December 2022. There had been two earlier non‑court disposals in 2017 and 2019 after the appellant had called the police and made false claims, once that his car had been stolen and once of having killed a police officer.

HHJ Kidd also had a victim impact statement from the complainant who expressed a great degree of shock and upset for being arrested and detained for an allegation of which he was of course completely innocent. Additionally, the prosecution indicated that the case attracted a categorisation of 1B in the Sentencing Guidelines with a starting point of 2 years imprisonment and referred to the case of R v Feve [2024] EWCA Crim 268 where it was identified that this type of case would normally attract a custodial sentence.

Accordingly, HHJ Kidd accepted the submissions of the prosecution and that there was some mitigation in relation to LT’s youth and in his problems with alcohol. She also made a reduction of 15 per cent for his plea before the date of trial, leading to the sentence of 20 months’ immediate imprisonment.

LT subsequently appealed. Importantly, the appeal did not challenge the guideline application, instead, it focused on comments the judge made at the pretrial review which LT suggested were to encourage him to change his plea on the basis that he would avoid an immediate custodial sentence if he did so.

In examining the appeal and the comments of HHJ Kidd, the Court of Appeal determined that a promise or indication made that is not then kept can be a ground of appeal. The Court of Appeal examined the law in R v Goodyear [2005] EWCA Crim 888 which enables a judge to invite a defendant to seek an indication from a judge, and their Lordships concluded, that an indication requires a careful procedure to be followed to avoid any danger of misunderstanding and to prevent defendants being improperly pressured to plead guilty.

In allowing the appeal their Lordships concluded that the words the judge used did not express that indication as a clear and certain promise but that any lawyer listening would perfectly sensibly understand those comments as meaning exactly that.

In doing so they expressed sympathy for HHJ Kidd and other judges facing busy court lists and encouraging the guilty to make sensible decisions, however their Lordships accepted that they had no choice but to allow the appeal, quashing the sentence of 20 months imprisonment and substituting a suspended sentence of 20 months imprisonment suspended for two years on completion of a 20-day rehabilitation requirement.

Comment .

LT can count himself very fortunate. The correct application of the sentence guideline and case law directed an immediate custodial sentence which LT avoided by virtue of a judge providing an indication without necessarily being in charge of all the facts. It is a timely reminder to practitioners that even where all seems lost, an examination of a judge’s comments can yield a positive rationale as opposed to a negative one.

Nevertheless, the writer also has sympathy for the judge in this scenario. Perhaps with ever expanding court lists, the politicians should grasp the “elephant in the room” and at the same time as widening the ability for prosecution challenges to sentences, consider introducing radical legislation aimed at tackling the backlog of criminal trials to give effect to a system that permits a level of plea bargaining as a bold and innovative way to reduce the number of contested trials.