Mandatory Section 325 Sentencing Act 2020 Credit Declarations for Qualifying Curfew on Activation of Suspended Sentences (and Neutralising “Double Recovery” on Appeal)

1. Introduction

In [2026] EWCA Crim 660, the Court of Appeal (Criminal Division) addressed a procedural—but practically important—sentencing issue: how time spent on an electronically monitored qualifying curfew while on bail must be credited against a custodial sentence when a suspended sentence is later activated.

The appellant had been sentenced in 2025 for breaching a restraining order (with no separate penalty for a related drug offence). Those new offences also triggered breach proceedings under section 20 Sentencing Act 2020, leading the Crown Court to activate part of an earlier suspended sentence imposed in 2024.

The key issue on appeal was that the sentencing judge attempted to reflect qualifying-curfew time by reducing the activated custodial term, but did not make the statutory declaration (in days, and in open court) required by section 325 Sentencing Act 2020. By the time the issue arose, the section 385 Sentencing Act 2020 “slip rule” time limit had passed, leaving appeal as the only route to correction.

2. Summary of the Judgment

The Court of Appeal:

  • Granted an extension of time to appeal (97 days).
  • Held that section 325(2) Sentencing Act 2020 imposes a mandatory duty to specify the qualifying-curfew credit period when activating a suspended sentence.
  • Calculated the appellant’s qualifying-curfew time as 122 days, producing a credit period of 61 days after applying the statutory halving rule.
  • Avoided “double recovery” by increasing the activated terms to what the judge had intended before incorrectly reducing them to account for curfew time: the activated sentences were increased from 7 + 7 months to 8 + 8 months consecutive, resulting in a total sentence of 20 months (16 months activated + 4 months for the new offence), while certifying 61 days qualifying-curfew credit.
  • Confirmed that, separately, remand time should count in the usual way under section 240ZA Criminal Justice Act 2003.

3. Analysis

3.1 Precedents Cited

No prior case-law authorities were cited in the judgment. The decision is driven by the statutory code and the Court of Appeal’s sentencing powers. Its precedential force lies in clarifying how the court should apply and “repair” the statutory scheme in practice.

3.2 Legal Reasoning

(a) Why section 325 applied on activation of the suspended sentence

The Court treated the activation of the suspended sentence as the point at which the “determinate sentence” is imposed for these purposes, relying on section 325(6) Sentencing Act 2020. Activation occurred under paragraph 13(1)(b) of Schedule 16 Sentencing Act 2020 (activation with substitution of a lesser term), which the statute deems to be the imposition of a determinate sentence on the date of activation.

As the appellant had previously been on bail in connection with those proceedings subject to:

  • a qualifying curfew condition, and
  • an electronic monitoring condition,

the statutory trigger in section 325(1) was met and the sentencing court “must” specify the credit period (section 325(2)). The Court emphasised this is not discretionary.

(b) The required declaration is formal, arithmetical, and expressed in days

The judgment highlights practical pitfalls:

  • Qualifying-curfew credit is calculated by a prescribed multi-step method (section 325(3)), including halving and (if needed) rounding up.
  • The court must state in open court the underlying day-counts and any deductions under steps 2 and 3 (section 325(4)).
  • Discussion in “months” at first instance obscured the accuracy required.

On the evidence before it, the Court found 122 qualifying days and no notified deductions, producing a mandatory credit of 61 days.

(c) Correcting the omission without giving an unwarranted windfall (“double recovery”)

The sentencing judge had tried to reach a fair outcome by reducing each activated consecutive term (from an intended 8 months to 7 months) to reflect the curfew. If the Court of Appeal simply added the statutory credit declaration to the already-reduced terms, the appellant would receive:

  • a shorter activated custodial term and
  • a further reduction in time served through the statutory credit mechanism,

amounting to “double recovery”.

The Court therefore used its powers under section 11(3) Criminal Appeal Act 1968 to reconfigure the sentence so that:

  • the statutory scheme is complied with (a 61-day declaration is made), and
  • the overall position is neutral compared with what the Crown Court intended to achieve in practice.

This also addressed the statutory constraint that the appellant must not be “more severely dealt with on appeal” when “taking the case as a whole” (section 11(3)). The Court treated the combination of (i) increasing the nominal term and (ii) adding credit as producing no greater severity overall.

3.3 Impact

The decision is likely to be cited for the following practical propositions:

  • Mandatory compliance: where section 325 applies, sentencing courts must make the qualifying-curfew declaration; it cannot be left to prison calculation or “built in” informally by trimming the term.
  • Advocates’ duties: parties should assist the court with the statutory framework and accurate day calculations, including any deductions under section 325(3) steps 2 and 3.
  • Appellate “neutralisation”: where a judge wrongly attempted to account for curfew credit by reducing the term, the Court of Appeal may adjust the sentence structure to prevent double counting while still making the statutory declaration.
  • Release-date certainty: formal certification reduces disputes with prison authorities and ensures lawful calculation of release dates.

4. Complex Concepts Simplified

  • Qualifying curfew (bail + tag): a curfew condition (typically 9+ hours per day) with electronic monitoring while on bail. Under section 325, only half the qualifying days usually count as time served (subject to deductions and rounding).
  • Credit period / “time served”: a statutory reduction in the time that must actually be served in custody, produced by a formal court declaration.
  • Activation of a suspended sentence: when a suspended prison term is ordered to “take effect” after breach; for section 325 and section 240ZA purposes, the sentence is treated as imposed at activation.
  • Slip rule (section 385 Sentencing Act 2020): a limited time window (here, 56 days) for the sentencing court to correct certain errors; once expired, the remedy is typically appeal.
  • “Not more severe on appeal” (section 11(3) Criminal Appeal Act 1968): the Court of Appeal can alter a sentence, but must ensure that overall the appellant is not worse off when the entire outcome is considered.

5. Conclusion

[2026] EWCA Crim 660 reinforces that qualifying-curfew credit under section 325 Sentencing Act 2020 is a mandatory, formal, open-court declaration—particularly important when a suspended sentence is activated. Where a sentencing judge has tried to achieve fairness by reducing the term instead, the Court of Appeal may restructure the sentence to prevent double counting while still enforcing the statutory scheme, provided the appellant is not more severely dealt with overall under section 11(3) Criminal Appeal Act 1968.