Morris Clarification: Correcting Drug-Quantity Miscalculations in Class-A Sentencing and the Operation of s.385 Sentencing Act 2020

Introduction

The Court of Appeal (Criminal Division) in R v Morris ([2025] EWCA Crim 431) has delivered a decision that addresses two entwined issues: (i) how an appellate court should correct a sentence imposed on the basis of a mistaken calculation of drug quantity, and (ii) what happens when the 56-day window for the sentencing court to rectify its own error under section 385 Sentencing Act 2020 passes unmet.

Leo Morris, aged 19, had pleaded guilty to two counts of being concerned in the supply of crack cocaine and heroin. The Crown originally told the sentencing judge that the quantity involved was one kilo. Months later the prosecution discovered that figure was inaccurate. By then, however, the sentencing court could no longer re-convene within the statutory time limit. The only available mechanism was an appeal—lodged 40 days out of time yet accepted by the Registrar and, ultimately, heard by the full court.

The Court’s judgment not only re-sentenced the appellant but also laid down practical guidance on:

• the correct categorisation of harm where the overall evidence differs from the figure advanced to the judge,
• the weight to be attached to unchallenged expert evidence of drug messaging,
• the limits and flexibility of s.385, and
• the appellate court’s role when a prosecutorial error has inflated, or deflated, the sentencing starting point.

Summary of the Judgment

• The court quashed the original 30-month detention order.
• It accepted that the correct total quantity of class-A drugs was approximately 750 g, not 1 kg.
• Harm was therefore placed in Category 3 (upper end) of the Drugs Guideline, with lesser role culpability.
• Applying aggravating factors (offending on bail, two drug types, two-month span) and mitigation (youth, mental health), the court set a notional sentence of three years, then applied full credit for the guilty plea to reach a final figure of 27 months, concurrent on both counts.
• The prior suspended sentence order remained unactivated.

Analysis

Precedents Cited & Legislative Framework

Although the judgment is relatively self-contained, it sits against a recognisable tapestry of authorities:

• Section 385 Sentencing Act 2020 – codifies the power of a sentencing court to vary or rescind its own sentence within 56 days of it being made. The court noted that the failure to assemble the original judge made recourse to the Court of Appeal necessary.
• CrimPR 28.4 – procedural rules supporting s.385 applications.
• R v Caley [2012] EWCA Crim 2821 – confirms the Court of Appeal’s power to correct sentencing errors and stresses the importance of accurate guideline categorisation.
• R v Parrott [2004] EWCA Crim 2816 – deals with errors in harm assessment where the totality of evidence was overlooked.
• Attorney-General’s Reference (No 4 of 2002) [2003] 1 WLR 2752 – re-affirms that sentences based on material misunderstanding of fact are “unduly lenient or manifestly excessive”.

The court drew explicitly on the Sentencing Council’s “Drug Offences Definitive Guideline”, particularly the two-stage matrix of harm (quantity/purity) and culpability (role).

Legal Reasoning

1. Error Identification. The initial sentencing had proceeded on the premise of 1 kg of Class-A drugs; the prosecution later accepted an arithmetic slip had occurred when converting “wraps” into weight. The court held that the error was one of fact, not discretion, and therefore readily correctable on appeal (cf. R v Poulton [2010] EWCA Crim 100).

2. Evidence Re-Examined. Importantly, once the 1 kg figure was jettisoned, the appellate court was not confined to the sub-100 g figure urged by the defence. It looked at the unchallenged expert report (Mr Tilley) mapping drug-dealing messages. Those messages evidenced 750 g of Cocaine/Heroin trafficked during four snapshots of the indictment period.

3. Categorisation under the Guideline. 750 g sits inside the Category 3 bracket (which starts at 50 g and runs up to 1 kg). The court described this as “towards the top end” of Category 3 but explicitly resisted the temptation to treat it as Category 2.

4. Role Assessment. Echoing the sentencing judge, the Court of Appeal found the defendant carried a lesser role (primarily “bagging up”). Although some indicia of significant role existed, these were insufficiently weighty once the revised quantity was adopted.

5. Aggravating & Mitigating Factors. Aggravation included offending while on bail, dealing in two different Class-A substances, and persistence over two months. Mitigation centred on the defendant’s very young age (just 18–19), some mental-health fragility and his early guilty plea. Balancing these, the court used the top-end Category 3 starting point of 3 years, lifted to 4 years for aggravation, then reduced back to 3 years for mitigation, and finally discounted by ~10% (first-appearance plea) to reach 27 months.

6. Operation of s.385. The judgment emphasises that once the 56-day period lapses because a sentencing court cannot be “re-constituted”, the appellate pathway remains open. The Registrar can (and should) extend time where the interests of justice demand correction, especially where the mistake is acknowledged by the Crown itself.

Impact of the Decision

• Practical: Prosecutors are encouraged to act promptly when discovering factual sentencing errors and to use s.385 wherever possible. However, Morris assures practitioners that a missed 56-day window is not fatal; the Court of Appeal will step in.
• Guideline Interpretation: The court clarified that the whole undisputed evidence of quantity can be adopted on appeal, even if the sentencing hearing focused on a smaller or larger figure. Defence teams should therefore challenge prosecution expert evidence at plea stage, lest it become determinative later.
• Youth & Mental Health: The judgment re-states that youth remains a powerful mitigator even in Class-A supply and can justify a 12-month downward variation from the aggravation-inflated notional figure.
• Suspended Sentence Interaction: Non-activation of a pre-existing SSO was left untouched, reinforcing that an erroneous primary sentence does not necessarily taint ancillary orders unless they directly hinge on the error.

Complex Concepts Simplified

• Section 385 Sentencing Act 2020 – formerly the “slip-rule”, it allows the judge who passed sentence (or another Crown Court judge acting in her place) to alter the sentence within 56 days to correct mistakes in fact or law, or reflect material new information. Beyond 56 days, only the Court of Appeal (or CCRC) can intervene.
• Drug Guideline Categories – Harm is split into four tiers: Category 1 (≥5 kg), 2 (1 kg–5 kg), 3 (50 g–1 kg) and 4 (<50 g) for powder cocaine/heroin. Culpability is assessed as Leading, Significant, or Lesser Role.
• Starting Point vs Range – The Sentencing Council provides a “starting point” (baseline for a first-time offender with a guilty plea at trial) and a “category range” inside which the court can move upward or downward for aggravation/mitigation.
• Qualifying Curfew Credit – Days spent on an electronically monitored bail curfew (tag) can count towards custodial time, usually at half the days accrued (here: 236 days curfew = 118 days credit).

Conclusion

R v Morris is a salutary reminder that accuracy in quantifying drug supply is paramount and that prosecutorial candour, even when belated, can avert disproportionate sentencing. The Court of Appeal utilised its corrective jurisdiction to recalibrate the harm category, harmonise aggravating and mitigating factors, and re-impose a sentence proportionate to the actual wrongdoing. Equally important, the decision maps the procedural route when section 385 cannot be engaged in time, ensuring that justice is not sacrificed to technicalities.

Going forward, Morris will likely be cited in:

• cases where factual mistakes in guideline metrics surface post-sentence,
• arguments over the evidential basis for harm assessment (text messages, expert conversion), and
• applications to extend time for an out-of-time appeal caused by an acknowledged prosecution error.

The judgment therefore strengthens both procedural fairness and substantive proportionality at the sentencing stage, underscoring the appellate court’s role as the guardian of accuracy.