R v Alastair Allen

LORD JUSTICE DINGEMANS: Introduction

1. This is an application for leave to appeal against sentence which has been referred to the full court by the Registrar. We grant leave because the grounds of appeal are arguable.

2. Mr Allen is now aged 57 years old. He has health conditions, including loss of sensation in his legs, heart palpitations, seizures and other conditions.

3. He had five convictions for ten offences between 1992 and 2023, which included theft, driving with excess alcohol in 2022 and failing to surrender to custody in 2022. On 26 September 2023 he committed an offence of theft. After a friend died, Mr Allen took the bank card and he spent some thousands of pounds on wine which he then drank. He received a suspended sentence of 8 months (or 34 weeks) suspended for 18 months with alcohol treatment, curfew requirements and rehabilitation activity requirement days.

4. On 1 December 2024, 1 year and 2 months after the sentence was imposed but still with 6 months to run, members of staff at a Co-op store in Blackpool alerted police that a customer had just bought a bottle of wine before driving away in a Ford motorcar. They provided the registration number. They had reported him because they believed him to be intoxicated and were sufficiently concerned to raise it with the police.

5. The police stopped the car on Marine Road in Blackpool, after seeing the vehicle go round a roundabout and back in the direction it had come from. The vehicle was travelling very slowly, weaving slightly. The driver was Mr Allen. The arresting officer smelt alcohol on his breath. At the roadside Mr Allen provided a sample of breath which gave a reading of 105 mcg/mL of blood. He was taken to custody, where the evidential sample provided a lowest reading of 96 mcg/mL of breath.

6. The applicant, Mr Allen, failed to attend his first appearance at Lancaster Magistrates' Court on 20 December. He was then later arrested and produced on a warrant. He entered guilty pleas on 23 December 2024.

7. On 13 May 2025, in the Crown Court at Preston, Mr Allen was sentenced to 4 weeks' imprisonment for driving the motor vehicle when above the limit, 1 week concurrent for failing to surrender to custody, and having committed an offence during the 18-month operational period of the suspended sentence of 8 months. The suspended sentence was activated with a reduced term of 24 weeks' imprisonment. The Registrar referred this to the full court given the timescales involved and the limited periods of imprisonment involved.

8. So far as the sentence is concerned, it is necessary to note that the total disqualification from driving should be 182 weeks. There is some confusion about whether 196 weeks was recorded at some stage, but we can confirm that the period of disqualification was, in accordance with R v Needham [2016] EWCA Crim 445; [2016] 1 WLR 4449, one-half of the sentence for driving with excess alcohol, one-half of the activated suspended sentence order and then a 3-and-a-half-year disqualification period. Of course, this being the second drink drive offence that Mr Allen had committed, there was a mandatory minimum disqualification period of 3 years. Grounds of appeal

9. The grounds of appeal set out in writing and repeated and developed today before us by Mr Hazeldine, to whom we are very grateful for his submissions, were: first that it was unjust to activate and impose the suspended sentence order; and secondly, that the imposition of custody for the offence of drink driving was manifestly excessive given the agreed sentencing guidelines.

10. So far as the main point is concerned, we have regard to the Sentencing Council guidelines and the question of whether it was unjust to activate the suspended sentence. The guideline provides that the sentencing court must activate unless it would be unjust in all the circumstances, and a predominant factor is the level of compliance and the facts of the new offence. The guideline also makes clear that past mitigation for the offence for which the suspended sentence was taken into account cannot be repeated to justify the non-imposition. We record as a matter of fairness to Mr Hazeldine that he did not make that error. He said that what he relied on was extremely high compliance with the order. There is support for Mr Hazeldine's submission in the report from the Probation Service, which shows that of the 26 rehabilitation activity requirement days Mr Allen had attended for 23; for two he had not attended for good reason; but there was one that he had not attended for no good reason. Although that is better, we are well aware, than many others on probation orders, it is not complete compliance. Most importantly however, the probation reported that Mr Allen had complied with the requirements to stop drinking and had stopped drinking. Unfortunately, however, it is apparent from the offence itself that within the period of the suspended sentence he did start drinking, which is why on 1 December he was driving the Ford Mondeo motor car to give rise to the instant offence. Further, if one is looking at compliance with the requirements of the courts, he failed to attend court on 20 December.

11. In all of those circumstances, we cannot characterise this as ‘extremely high compliance’ with the order, and in our judgment the judge was right to activate the sentence.

12. Mr Hazeldine then says that the period which was imposed on Mr Allen was too long, because the original sentence was 34 weeks and there was only a reduction of 10 weeks (some two-and-a-half months) of the 8 months. In our judgment the judge had taken into account the relevant features, the fact that there had been compliance but not complete compliance, there had been some discharge of the conditions of the suspended sentence order (albeit, as it turned out, without overall effect) and it is impossible to say that the 10-week reduction makes the sentence manifestly excessive.

13. That then leaves the second ground of appeal, which was that the sentence of 6 weeks' custody, which it must have been before discount for plea, giving rise to the 4 weeks, for the excess alcohol offence was manifestly excessive because the sentencing guidelines were agreed to show that they were a mid-level community order for this sentence at the highest.

14. In circumstances where the suspended sentence order was activated, it was plain that there had to be a custodial sentence. The sentence of 6 weeks, reduced with full credit for plea, also took account of the criminality of the failure to surrender, and Mr Allen's record. It was in our judgment harsh, but not manifestly excessive.

15. In all those circumstances, and notwithstanding the skill with which this matter has been argued, we dismiss the appeal. 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: [email protected]