Limitation on Credit for Post-Sentence Bail under Qualifying Curfew Conditions

Introduction

Layden v R [2025] EWCA Crim 659 is a decision of the England and Wales Court of Appeal (Criminal Division) delivered on 23 May 2025. The applicant, Stuart Layden, had been twice retried for the 2012 murder of Ian Church and ultimately convicted in 2016. After his conviction was quashed in October 2023 on procedural grounds, it was restored by the Supreme Court in April 2025. During the period between quashing and restoration, Layden spent 537 days on bail subject to an electronically monitored curfew. He applied to have half of those days deducted from the minimum term of his life sentence under the Sentencing Act 2020. This appeal raised two core issues: (1) whether section 43(1) of the Criminal Appeal Act 1968 precludes credit for bail time when bail is granted pending appeal, and (2) whether the Court of Appeal can take into account post-sentence events—here, the period on bail—when reviewing a sentence.

Summary of the Judgment

The Court of Appeal granted an extension of time for Layden to apply for leave to appeal against sentence but dismissed the substantive appeal. It held that:

• Section 43(1) of the Criminal Appeal Act 1968 is intended only to prevent prison authorities from counting time on bail in computing a sentence when an appellant returns to custody; it does not limit the appellate court’s sentencing jurisdiction.
• The general rule is that this court reviews the sentence imposed at trial and will not, absent exceptional circumstances or material known at the time of sentencing, revisit sentences on the basis of events occurring after the hearing.
• Although time on bail under qualifying curfew conditions would, if incurred before sentencing, attract half-day credit under sections 322–326 of the Sentencing Act 2020, the Court of Appeal will not deduct time spent on bail granted post-sentence—there is no specific statutory authority to do so and no exceptional injustice warranting departure from the general rule.

Analysis

Precedents Cited

• Llewellyn [2022] EWCA Crim 154 – held that failure to comply with section 8(1) Criminal Appeal Act 1968 deprived the Crown Court of retrial jurisdiction; overruled by the Supreme Court in R v Layden [2025] UKSC 12.
• Sessay [2024] EWCA Crim 483 – explained mandatory deductions from a life sentence minimum term for remand in custody and for bail under qualifying curfew conditions.
• Prenga [2017] EWCA Crim 2149 and Rice [2025] EWCA Crim 352 – confirmed appellate power to remedy a trial judge’s failure to apply statutory credit for bail conditions where appropriate before sentencing.
• Shaw [2010] EWCA Crim 982, Roberts [2006] EWCA Crim 2915, R v ZTR [2015] EWCA Crim 1427, and Watson [2021] EWCA Crim 1248 – held that the Court of Appeal’s function is to review the sentencing exercise and, ordinarily, will not intervene on the basis of post-sentence events such as new medical conditions.
• BHR [2023] EWCA Crim 1622 – reaffirmed that sentence reduction for assistance to authorities is available only if assistance or offer thereof was made before sentence (the “text procedure”), and that post-sentence assistance cannot normally justify appellate relief.
• Other cases on appellate sentencing review and fresh evidence (R v Rogers [2016], Caines [2006], Stevenson [2018], McMeekin [2018], Royle) and on exceptional mitigation discovered post-sentence (Charlton [2021], Bassaragh [2024], Channer [2021]).

Legal Reasoning

1. Purpose of section 43(1) Criminal Appeal Act 1968. The court concluded that this provision ensures that prison authorities do not count bail time when an appeal is revoked and the appellant returns to custody. It does not limit the Court of Appeal’s broader power under section 11(3) to review and vary sentences.

2. Appellate review function and general rule against post-sentence events. Section 11(3) empowers the Court of Appeal to quash and substitute sentences but, as established in Shaw and Roberts, the court acts as a review body. It generally will not re-open a sentencing exercise on the basis of events occurring after sentence unless:

• the event or evidence was known (or should have been known) at the time of sentencing;
• fresh evidence under section 23 is admitted showing a material error or new ground; or
• wholly exceptional circumstances exist so as to make continued enforcement unjust.

3. Statutory credit for bail under qualifying curfew conditions. Under sections 322–326 of the Sentencing Act 2020, had Layden been on curfew bail before sentencing, half the period (268.5 days) would have been deducted automatically from his minimum term. But no statute provides for retrospective credit after the sentence is passed.

4. No exceptional injustice found. Although Layden’s liberty was constrained for 18 months, the court did not consider the injustice so grave as to depart from the general rule. Moreover, his period on bail may aid his eventual parole prospects, and there was no evidence of substantial prejudice from remaining in custody.

Impact

This decision clarifies that:

• Time spent on bail under qualifying curfew conditions after sentence is not creditable against a mandatory life sentence minimum term unless Parliament expressly provides.
• The Criminal Appeal Act 1968’s appellate sentencing jurisdiction remains circumscribed; post-sentence events are generally irrelevant absent exceptional circumstances or statutory provision.
• Future appellants seeking credit for post-sentence restrictions must either secure relief via exceptional-case grounds or lobby Parliament for explicit statutory amendments.

Complex Concepts Simplified

• Mandatory life sentence and minimum term: For murder, the judge sets a “tariff” (minimum term). After serving it, the prisoner may be released on licence by the Parole Board.
• Qualifying curfew condition: A bail requirement to remain at a specified address with electronic monitoring, which counts for credit under the Sentencing Act 2020.
• Section 11(3) Criminal Appeal Act 1968: Grants the Court of Appeal wide powers to quash and replace sentences but stresses review of the original hearing.
• Section 43(1) Criminal Appeal Act 1968: Provides that time on bail pending appeal is disregarded when computing the sentence in the event of return to custody.
• “Text procedure” (assistance credits): A mechanism under the Criminal Justice Act 2003 for sentence reduction when an offender assists authorities, available only if assistance is offered before sentencing.

Conclusion

Layden v R [2025] EWCA Crim 659 reaffirms the Court of Appeal’s limited role in sentencing review and the general rule barring reliance on post-sentence events. Although statutory credit is mandatory for qualifying curfew bail before sentencing, no statute authorises retrospective credit after sentence. The court declined to create an exception here, finding no injustice so exceptional as to override established principle. This decision will guide future appeals on bail credits and underscore the need for explicit legislative provision if Parliament wishes to extend credit for post-sentence bail conditions.