Double Counting in Drug-Supply Sentencing: Prison Harm Already Captured, but Courtroom Location Justifies Uplift

1) Introduction

In R v Thomas [2026] EWCA Crim 931, the Court of Appeal (Criminal Division) (Coulson LJ, Farbey J, and HHJ Lickley KC) considered the proper approach to applying the Sentencing Council guideline for possession of a controlled drug with intent to supply where the factual matrix involves (i) supply into custody and (ii) offending committed within a court building.

The appellant, a young adult, pleaded guilty to possessing cannabis with intent to supply after drugs were found falling from the co-defendant’s court papers as the co-defendant was being processed for transport back to prison. The appellant’s fingerprints were found on the packaging. The prosecution effectively accepted that the appellant acted under pressure and fear of threats to family members.

The key issues were:

  • Whether the sentencing judge unlawfully “double counted” the prison-supply feature by first placing the offence in higher harm category for custodial supply and then increasing the starting point again for the same reason.
  • Whether the judge was entitled to impose a consecutive term to a substantial, unrelated sentence for attempted murder, and what the totality principle required.

2) Summary of the Judgment

The Court of Appeal allowed the appeal in part. It held that:

  • The judge erred by increasing the starting point to reflect prison supply after already treating prison supply as the reason for category 3 harm: that was double counting.
  • However, offending in a court building while the offender was a defendant in ongoing criminal proceedings was a distinct and serious aggravating feature justifying an upward adjustment beyond the category range.
  • The sentence imposed below (12 months) was quashed and replaced with 16 weeks detention in a young offender institution, to run consecutively to the existing attempted-murder sentence.

3) Analysis

3.1 Precedents Cited

R v O'Reilly [2023] EWCA Crim 1615; [2024] 1 Cr App R(S) 50

The Court treated R v O'Reilly [2023] EWCA Crim 1615; [2024] 1 Cr App R(S) 50 as the controlling authority on double counting within guideline methodology. The key point applied was that where a factor has already been used to place the offence in a particular guideline category (or otherwise materially to set the guideline starting point), it is generally impermissible to use the same factor again to justify a further upward adjustment, absent a principled explanation that the factor has a distinct additional dimension not already captured.

Here, the “supply in a custodial institution” feature had already been used to justify category 3 harm. The sentencing judge then elevated culpability/starting point again because the supply was into prison. Applying O’Reilly, the Court of Appeal held that this was a clear instance of double counting.

R v Arshad [2025] EWCA Crim 1456

The Court relied on R v Arshad [2025] EWCA Crim 1456 to identify the independent aggravating seriousness of offending in a court building. The Court emphasised that committing an offence in that setting may demonstrate “the upmost contempt for the rule of law”.

This authority mattered because it provided the doctrinal bridge that allowed the Court to say: although the prison-supply feature could not be counted twice, the courtroom/court-building feature was separate in kind and could justify moving above the normal category range.

3.2 Legal Reasoning

  1. Guideline categorisation (harm and culpability): The Court agreed with the parties that harm fell within category 3 because the case involved supply in a custodial institution. On culpability, because the prosecution had effectively accepted the appellant acted under pressure, the Court concluded the appellant should have been sentenced on a lesser role basis.
  2. Identification of the error (double counting): Once prison supply had already driven the offence into category 3 harm, the judge could not then justify a substantially higher starting point on the same basis. The Court characterised the move to a “four year starting point” as erroneous because it re-used the same aggravating feature.
  3. Distinct aggravation (offending in court): The Court then separated out a different factor: the offence was committed in the dock during a serious criminal trial. That location was treated as a powerful aggravating circumstance, analytically distinct from “supply in custody”, and capable of justifying an upward adjustment beyond the range for category 3 / lesser role.
  4. Recalibration of sentence: The Court set a notional sentence of 30 weeks before plea credit, applied a 20% reduction for the guilty plea (to 24 weeks), and then reduced further for youth (the appellant was 17 at the time of the offence) to 16 weeks. The Court thereby demonstrated that:
    • uplift for the court-building feature was warranted,
    • but the uplift adopted below was wholly disproportionate (the judge’s “four year starting point” corresponding to leading-role levels).
  5. Consecutive sentence and totality: The drug offence was unrelated to the attempted murder for which the appellant was already serving a very long sentence. The Court held the judge was entitled to order the sentence to run consecutively, with little or no totality reduction, particularly given the seriousness and symbolism of offending in a court building.

3.3 Impact

The decision provides practical guidance on two recurring sentencing problems:

  • Guardrails against double counting within guidelines: Where the guideline has already “priced in” a feature at the categorisation stage (here, custodial supply driving harm categorisation), judges should not enhance again for the same feature. If an upward move is contemplated, the reasoning must identify a genuinely distinct aggravating dimension not already captured.
  • “Court-building offending” as a distinct aggravator: The judgment reinforces that offending inside a court—especially during proceedings in which the offender is a participant—may justify moving beyond the usual category range because it attacks the administration of justice and public confidence in the rule of law.
  • Consecutive sentencing even alongside very long terms: For unrelated offending, the Court signalled that consecutive sentences may properly mark additional criminality and institutional harm, and that the totality principle does not automatically require concurrency merely because the existing sentence is substantial.

4) Complex Concepts Simplified

Harm category / culpability category
Under sentencing guidelines, courts assess (a) the harm associated with the offending and (b) the offender’s role/culpability. Those selections generate a starting point and a category range.
Starting point and category range
The starting point is the baseline sentence for a typical case in that category; the range shows permissible movement for aggravating/mitigating features.
Double counting
Using the same fact twice to increase sentence—for example, using “custodial supply” to push harm up a category and then again to justify an additional uplift. Courts must avoid this unless they can identify a distinct aspect not already reflected in the guideline selection.
Aggravating factor
A feature making the offence more serious (here, commission in a court building), potentially justifying an upward adjustment.
Totality principle
When sentencing for multiple offences (or where an offender is already serving a sentence), the court must ensure the overall term is just and proportionate. This may affect whether sentences are concurrent or consecutive, and by how much.
Consecutive vs concurrent
Consecutive means the new sentence is added on after the existing one; concurrent means it runs at the same time. Unrelated offending commonly justifies consecutive terms.
Guilty plea reduction
A percentage reduction reflecting the utilitarian value of an early guilty plea; here, 20% was applied due to lateness.

5) Conclusion

[2026] EWCA Crim 931 confirms that courts must not double count the “custodial supply” feature when applying the drug-supply guideline: if it has already driven harm categorisation, it cannot be used again to justify a higher starting point. At the same time, the judgment recognises a powerful, distinct aggravation where offending occurs within a court building, potentially warranting an uplift beyond the category range because it demonstrates profound contempt for the justice system. The Court’s substitution of a short but consecutive term underscores that proportionality and guideline discipline remain essential even in symbolically serious contexts.