R v Hawe [2025] EWCA Crim 1101: Remand Custody, Community Orders and the Prohibition on Double Punishment

I. Introduction

The decision in R v Hawe [2025] EWCA Crim 1101 is an important sentencing judgment of the Court of Appeal (Criminal Division) concerning the interaction between:

• substantial time spent in custody on remand, and
• the imposition of a community order, with its mix of punitive and rehabilitative requirements.

The Court re‑states and develops the principle drawn from R v Lynch [2007] EWCA Crim 2624: it is wrong in principle to impose a sentence which exposes a defendant to the risk of further punishment where the punishment already experienced in custody exceeds the just and proportionate sentence for the offence.

Hawe takes that principle a step further in the context of community orders. It makes clear that:

• time spent on remand does not automatically “count” towards a community order; but
• where remand has already fully discharged the punitive element of any appropriate sentence, the court should not impose further punitive – and in some cases even rehabilitative – community requirements that carry the risk of additional punishment for breach.

The case also addresses a technical but practically important issue: what to do where, at the sentencing hearing, a judge has revoked an earlier community order and “rolled” its requirements into a new community order for later offences, and an appeal court then concludes that the later offences have already been fully punished by remand.

II. Factual and Procedural Background

A. The offences

The applicant, aged 27–28 at the relevant times, began a relationship with Jessica Taylor in August 2023. In late October 2023, Ms Taylor indicated that she wished to end the relationship. Over the following days, while apparently under the influence of alcohol, the applicant engaged in escalating abusive and controlling behaviour:

• He sent Ms Taylor a series of messages, some apologetic and conciliatory, others abusive and controlling, including grossly offensive sexualised insults.
• He telephoned her home, where a friend answered. He was verbally abusive to the friend and made a threat to kill, forming the basis of the threat to kill charge. (The friend did not, however, give a statement.)
• In the early hours of 1 November 2023, he sent threatening voice notes.
• He then attended Ms Taylor’s address around 3.30 am, agitated and angry. Concerned for the safety of her child and sister‑in‑law, Ms Taylor suggested he leave with her in a car.
• During the journey he became increasingly abusive, threatened to burn down two restaurants owned by her family (the basis of the threats to damage/destroy property), pulled the handbrake while the car was moving, and created a risk of an accident.
• After the car was stopped he took Ms Taylor’s phone (discovering she had blocked him), grabbed her collar, threw the phone at her, and slammed her against the car door – conduct underlying the assault by beating and common assault offences.

The victim personal statement recorded the significant fear and distress caused to Ms Taylor.

B. The charges and plea

On 3 November 2023, in the magistrates’ court, the applicant pleaded guilty to seven offences:

• one count of making a threat to kill,
• three counts of sending a threatening message,
• one count of threatening to damage or destroy property,
• one count of assault by beating, and
• one count of common assault.

He was committed to the Crown Court for sentence under section 4 of the Sentencing Act 2020.

C. Antecedents

The applicant had three previous convictions for nine offences, beginning in September 2021, including:

• criminal damage,
• threatening words and behaviour likely to cause harassment,
• aggravated criminal damage, and
• racially aggravated intentional harassment/harm.

Of particular importance in the chronology:

• October 2023 community order: While on bail for the present offences, the applicant received a community order (with rehabilitation activity days and 120 hours’ unpaid work) for racially aggravated offences.
• December 2023 custodial sentences: On 1 December 2023 he was sentenced to 12 weeks’ imprisonment for battery and 8 weeks (consecutive) for sending a threatening message, together with a restraining order, in relation to a different domestic victim.

The pre-sentence report before the Crown Court highlighted an escalating pattern of domestic abuse, linked with alcohol and drug use.

D. The original sentence

On 11 September 2024, at St Albans Crown Court, Ms Recorder Nicola Williams imposed:

• an 18‑month community order with the following requirements:
  • alcohol abstinence and monitoring for 100 days,
  • a 6‑month alcohol treatment requirement,
  • a Building Better Relationships (BBR) programme,
  • a rehabilitation activity requirement (RAR) of up to 20 days, and
  • 120 hours of unpaid work;
• a restraining order for 5 years.

At that hearing, there was also a subsisting October 2023 community order. The Recorder revoked that order and, in effect, transferred its 120 hours of unpaid work (and associated rehabilitation) into the new 18‑month community order for the present offences. This was, in the Court of Appeal’s words, a “pragmatic route”.

Defence counsel had in fact invited the Recorder to impose immediate custody, on the basis that the applicant had already been remanded in custody for the equivalent of 14 months’ imprisonment awaiting sentence. The applicant had been in custody solely for these matters since 2 February 2024, after his earlier sentence expired and when bail was revoked because of a lack of a suitable bail address. In practice, around seven months of actual remand translates into an “effective” 14‑month custodial term, given release at half‑time.

E. The appeal

The applicant applied (out of time) for leave to appeal. The Court of Appeal:

• granted a 9‑day extension of time, describing it as “wholly explicable”, and
• granted leave and proceeded to consider the substantive appeal.

The core ground was that the 18‑month community order was manifestly excessive or wrong in principle because the Recorder had not properly taken into account the substantial period of time spent on remand.

III. Summary of the Court of Appeal’s Decision

The Court (Judge St John-Stevens delivering the judgment, with Lord Justice Dingemans presiding) decided as follows:

1. Time on remand and community orders:
   • Time spent on remand does not automatically “count” towards a community order.
   • However, community orders contain both punitive and rehabilitative elements and restrict an offender’s liberty.
   • Where an offender has already served on remand a period of custody that fully accounts for the just and proportionate punitive sentence for the offences, it is wrong in principle to impose further punitive – and in some cases even rehabilitative – conditions in a community order which would expose the offender to risk of further punishment for breach.
2. Notional sentence exercise: Standing back and applying the sentencing guidelines and the applicant’s pattern of serious, escalating domestic abuse, the Court accepted that a “significant” custodial term would have been appropriate, but not one exceeding the effective 14 months already served on remand. Thus, the punitive element of the sentence had already been fully satisfied.
3. Original 18‑month community order wrong in principle: Because the applicant had already effectively served more than the appropriate custodial term, the 18‑month community order exposed him to a risk of further punishment in the event of breach, contrary to the principle in Lynch. In consequence, the order could not stand.
4. Interaction with the October 2023 community order: The Recorder had revoked an existing October 2023 community order (for separate racially aggravated offending) and “folded” its 120 hours of unpaid work into the new community order. If the Court of Appeal simply quashed the entire community order now, the applicant would, by accident, escape any sanction for the October 2023 offences, having completed none of that unpaid work. The Court regarded that as unacceptable.
5. Re‑structuring the sentence: The Court therefore:
   • revoked the 18‑month community order, and
   • substituted a 15‑month community order with:
     • up to 15 days’ RAR, and
     • 120 hours of unpaid work,
     explicitly stating that this reflects the community order imposed in October 2023.
   In other words, the community order now operates only as the sentence for the October 2023 racially aggravated offences, not for the present domestic abuse offences, which are treated as fully punished by time on remand.
6. No power to substitute imprisonment: The Court emphasised that it would be precluded from substituting a term of imprisonment in place of the community order. It could not lawfully increase the severity of the sentence imposed below.
7. Restraining order unaffected: The Court did not disturb the 5‑year restraining order, which remains in place to protect the victim.

Lord Justice Dingemans put the effect succinctly in open court: “So effectively we have transferred over the October matter … But discharged it and resentenced it there, to make it clear.”

IV. Precedents and Legal Framework

A. Time on remand and sentencing

In England and Wales, the statutory framework treats time spent on remand differently depending on the type of sentence:

• Custodial sentences: Under section 240ZA of the Criminal Justice Act 2003, time spent on remand for the same offence must normally be credited against any custodial sentence. The sentencing judge should state the amount of time to be credited.
• Community orders: There is no equivalent statutory mechanism expressly deducting remand from a community order. Nevertheless, time spent on remand is a relevant factor in assessing total punishment and the proportionality of the sentence as a whole.

The Court of Appeal has long stressed that sentencing is a holistic exercise, aimed at ensuring that the totality of the sentence is just and proportionate. Even where the sentence is not custodial, a substantial period of pre‑sentence custody cannot be ignored.

B. Community orders under the Sentencing Act 2020

Community orders, now governed by Part 11 of the Sentencing Act 2020, are flexible disposals that can combine different requirements. They serve a mixture of:

• punitive aims – e.g. unpaid work, curfew, exclusion, alcohol abstinence with electronic monitoring; and
• rehabilitative aims – e.g. treatment for alcohol or drug dependency, accredited programmes such as Building Better Relationships, rehabilitation activity requirements (RAR) designed to address offending behaviour.

Breach of a community order can lead to further sanctions, including:

• amendment to make the order more onerous,
• revocation and re‑sentencing for the original offence, and
• imposition of custody where justified.

Thus, even apparently “rehabilitative” requirements expose the offender to the risk of punitive consequences if not complied with.

C. The authority of Lynch [2007] EWCA Crim 2624

The applicant relied on the Court of Appeal’s decision in R v Lynch [2007] EWCA Crim 2624. The judgment in Hawe summarises the core principle derived from Lynch:

It is wrong to impose a sentence which exposes the appellant to the risk of further punishment when the punishment they had already experienced exceeded the punishment that the judge would have imposed.

Lynch is often cited where:

• a defendant has spent substantial time on remand, and
• the court is considering a non‑custodial disposal (such as a community order) which, if breached, could result in further punishment.

The key idea is fairness and proportionality: the criminal justice system must avoid “double punishment” where a defendant has already suffered more deprivation of liberty than the notional sentence demands.

In Hawe, the Court of Appeal explicitly applied and developed this principle in the particular context of:

• an 18‑month community order imposed after lengthy remand, and
• a background of an existing (earlier) community order that had been revoked and folded into the new order.

V. The Court’s Legal Reasoning

A. Does time on remand “count” towards a community order?

At paragraph 14 the Court articulated the key starting propositions:

1. “as a matter of principle” time spent on remand does not automatically count towards a community order;
2. a community order has “components of punishment and rehabilitation, both of which place restrictions on [an] offender’s time, movement, and hence their liberty”;
3. where an offender has already served a period of custody which fulfils the punitive requirement of the sentence, “it would be wrong to impose further punitive, or indeed in some instances rehabilitative conditions in a community order”, because any breach of those conditions could lead to further punishment.

This is a careful balancing act:

• The Court rejects any simplistic notion that remand must always be treated as cancelling out a community order. There may be cases where some rehabilitative intervention remains appropriate.
• But it also rejects the idea that, because a community order is non‑custodial, significant prior remand is of lesser importance. On the contrary, because breach of community requirements can lead to custody, the order indirectly imports a further potential deprivation of liberty.

The Court’s use of the phrase “in some instances” is important. It recognises that there may be cases where purely rehabilitative conditions could justifiably be imposed despite substantial time on remand, but only if this can be done consistently with the Lynch principle. Hawe does not draw a bright line; rather, it insists that judges undertake a careful assessment of whether additional requirements would, in substance, amount to impermissible further punishment.

B. The “notional sentence” exercise

The Court then undertook what might be called a notional custodial sentence exercise. This is central to applying the Lynch/Hawe principle.

The Court asked:

whether a notional appropriate punishment for these offences that the judge could have imposed could have exceeded the effective period of custody the applicant had already served.

To answer that, it:

• assessed the seriousness of the offending: a pattern of threats, violence and controlling behaviour designed to intimidate and control Ms Taylor;
• viewed the offences in light of the applicant’s previous convictions, showing an escalating pattern of domestic abuse, aggravated by alcohol and drugs;
• took account of previous breaches of court orders, demonstrating poor compliance with community‑based sentences; and
• considered both the multiple-offence sentencing guidelines and the fact that the applicant could, in principle, have been sentenced for all matters together in 2024.

On that basis, the Court concluded (para 14):

In our judgment a significant period of custody would have been correct in principle, but not one that would exceed the effective period of custody already served by this applicant.

In other words, had the Court been sentencing from scratch, it would have imposed a custodial sentence shorter than or equal to the 14‑month “effective” period already spent on remand. That meant:

• the punitive objective of sentencing for the present offences had already been fully discharged in reality; and
• any additional sentence carrying a risk of further punishment (including breach‑contingent custody) would be disproportionate and contrary to Lynch.

C. Why the 18‑month community order was wrong in principle

Having undertaken the notional sentence exercise, the Court concluded:

• The 18‑month community order imposed by the Recorder exposed the applicant to the risk of further punishment for the present offences if he breached its requirements.
• Given that the “just and proportionate” punishment had already been served on remand, this risk of additional punishment offended the principle in Lynch.

In the Court’s words:

We accept, therefore, that the applicant would be exposed to the possibility of further punishment if there was a culpable breach of the community order imposed.

and:

We accept that the correct provisional position would be to extinguish the community order.

That is the key legal holding of the case: where time on remand has already fulfilled the just punitive sentence for the offence, it is generally wrong in principle to impose a community order carrying a risk of further punishment, because it leads to “double punishment”.

D. The complication: the October 2023 community order

The sentencing exercise was complicated by the existence of a prior community order imposed in October 2023 for separate racially aggravated offences. At the sentencing hearing in September 2024:

• The Recorder had before her this “subsisting community order”.
• She decided to revoke it and resentence, effectively:
  • revoking the October order, and
  • appending its 120 hours of unpaid work to the new 18‑month community order imposed for the present domestic offences.

The Court of Appeal recognised this as a “pragmatic route”. However, it gave rise to a problem on appeal:

• If the Court simply quashed the 18‑month community order in its entirety (the “provisional” course), it would also, inadvertently, wipe out the only remaining punishment for the October 2023 offences.
• The applicant had not completed the 120 hours of unpaid work for those offences; quashing the order would effectively reward him with impunity for that earlier racially aggravated offending.

Counsel for the applicant fairly conceded that this would be an unwarranted windfall.

E. The Court of Appeal’s solution: separating the two strands

To avoid both double punishment and inadvertent impunity, the Court adopted a nuanced approach (para 16):

It is clear in this qualified way the application before us succeeds on this basis: the sentence is revoked and in its place a community order of 15 months, with up to 15 days of rehabilitation activity requirements and 120 hours of unpaid work. For clarity, that reflects the sentence that was imposed on 2 October.

The effect is:

• The 18‑month community order as a sentence for the present domestic abuse offences is extinguished. Those offences are treated as fully punished by the time the applicant has already served on remand.
• A new, separate 15‑month community order is imposed, purely to replicate the sanctions originally imposed in October 2023 for the racially aggravated offences (up to 15 RAR days and 120 hours of unpaid work).

Lord Justice Dingemans’ clarification in court underscores this:

So effectively we have transferred over the October matter … But discharged it and resentenced it there, to make it clear.

In practical terms:

• The applicant must now complete 120 hours of unpaid work and up to 15 days of rehabilitation for the earlier offences only.
• He faces no additional community-based penalty for the present domestic offences beyond what he has already served in custody.

F. Limits on the Court of Appeal’s powers

The Court noted that it was “precluded from substituting a term of imprisonment”. This reflects the Criminal Appeal Act 1968, under which the Court cannot make a sentence more severe than that passed by the Crown Court.

Had the Court substituted a custodial term to reflect the punishment already served, that might arguably have been more severe or at least have created complications with time‑served calculations. Instead, the Court chose:

• to remove the community order insofar as it related to the present offences, and
• to recreate only the October 2023 community order.

This kept the appellate intervention strictly within the bounds of reducing, not increasing, the overall severity of the sentence.

G. The restraining order

The Court did not disturb the 5‑year restraining order protecting Ms Taylor. That is significant. The Lynch/Hawe principle concerns punishment for the index offence and the risk of additional punishment for breach of sentence conditions. A restraining order is primarily a protective measure for the victim; breach constitutes a new offence rather than a further penalty for the original offending.

By leaving the restraining order intact while removing the punitive community element, the Court implicitly recognises the distinct functions of:

• punitive sentences (custody or community orders), and
• protective orders (such as restraining orders) designed to safeguard victims.

VI. Impact and Significance

A. Sentencing after extensive remand: community orders are not exempt from fairness

Hawe is a clear reminder that significant time spent on remand is not relevant only to custodial sentences. Even where the court is considering a non‑custodial outcome, it must:

• assess the appropriate notional custodial term,
• compare it with the time already spent in custody, and
• ensure that any community order does not, in substance, amount to further punishment beyond that justified term.

The decision will be particularly relevant in cases where:

• the defendant has been denied bail (perhaps for lack of a suitable address) for a prolonged period;
• the sentencing court is, for good reasons, inclined towards a community‑based response; but
• the remand period approaches or exceeds the length of the custodial term that would otherwise have been imposed.

In such cases, Hawe makes it harder simply to “add on” a full set of community requirements, particularly onerous punitive requirements like long unpaid work or highly intrusive monitoring.

B. Reconciling punishment with rehabilitation

The judgment is nuanced about rehabilitation:

• It recognises the value of programmes such as Building Better Relationships and alcohol treatment in addressing domestic abuse and substance‑linked violence.
• But it emphasises that even rehabilitative conditions are backed by the threat of punitive consequences on breach.

This creates a tension for sentencing courts:

• On the one hand, there may be strong public‑protection and rehabilitative reasons to impose an intensive programme after domestic abuse.
• On the other hand, if the defendant has already spent what would otherwise have been the full custodial term on remand, adding such requirements may breach the prohibition on effective “double punishment”.

Hawe does not resolve that tension definitively; instead, it demands careful case‑by‑case analysis. It seems likely that where courts do impose rehabilitative requirements in such circumstances, they will need to:

• expressly recognise that the punitive element is fully satisfied by remand, and
• explain why the particular rehabilitative package is necessary and proportionate despite the risk of breach‑related sanctions.

C. Managing existing community orders when sentencing for new offences

The practical handling of the October 2023 community order is another important feature of the case. It illustrates for sentencers that:

• Revoking an existing community order and rolling its requirements into a new order may be convenient, but it can create difficulties if the later sentence is appealed and found to be flawed.
• To avoid accidental impunity for earlier offences, courts need to be explicit about:
  • which requirements relate to which offences, and
  • whether an earlier order is being left intact, varied, or replaced.

Hawe provides a model of how an appellate court can disentangle such orders: by reinstating the earlier community order in substance, and extinguishing only the part relating to the later offences that have already been fully punished by remand.

D. Guidance for practitioners

For defence practitioners, Hawe offers a clear line of argument where:

• the client has spent substantial time on remand, and
• the court is contemplating a community order with onerous or lengthy requirements.

Defence counsel can now point explicitly to:

• the need to identify a notional custodial sentence,
• the requirement not to expose the defendant to further punishment once that notional term is already served, and
• the Court’s acknowledgment that even rehabilitative requirements may be inappropriate in such circumstances.

For prosecutors and probation services, the case underscores the importance of:

• providing clear information about remand dates and previous sentences,
• ensuring pre-sentence reports acknowledge time spent in custody, and
• proposing community requirements that are proportionate, especially where remand has been lengthy.

E. Domestic abuse cases

It is noteworthy that the Court applied this principle in a domestic abuse context involving:

• a pattern of controlling and threatening behaviour,
• risk to a victim and child,
• previous domestic violence and breaches of orders.

The Court expressly recognised the seriousness of the offending and that “a significant period of custody” would otherwise have been justified. Nonetheless, fairness in the treatment of remand time prevailed.

The message is clear: the gravity of domestic abuse does not displace the requirement that total punishment must not exceed what is just and proportionate. Protective measures (like restraining orders) can and should remain in place, but punitive measures must respect the time already served.

VII. Explanation of Key Concepts

A. Time on remand

“Remand” refers to the period when a defendant is held in custody before trial or sentence. If they are later sentenced to imprisonment:

• that remand time is credited against the custodial term by law (usually on a day‑for‑day basis);
• because prisoners are commonly released at half‑time, a period of remand can be described as the “equivalent” of twice that time in nominal custodial sentence.

In Hawe, the applicant’s remand period since 2 February 2024 was said to be the “equivalent of 14 months” in custody.

B. Community order

A community order is a non‑custodial sentence requiring the offender to comply with one or more specified requirements for a set period (usually up to three years). Common requirements include:

• Unpaid work: performing unpaid community service for a specified number of hours.
• Rehabilitation Activity Requirement (RAR): attending up to a maximum number of “activity days” arranged by probation, such as programmes or mentoring.
• Treatment requirements: such as alcohol or drug treatment.
• Programme requirements: such as the Building Better Relationships (BBR) programme for domestic abuse.
• Alcohol abstinence and monitoring: abstaining from alcohol with electronic monitoring to verify compliance.

Breach of the order (without reasonable excuse) can result in more onerous requirements or custody.

C. “Notional sentence”

A “notional sentence” is the hypothetical sentence the court would impose:

• if the defendant were being sentenced at that moment,
• without considering time already spent on remand.

By comparing this notional sentence with the actual remand period, the court can decide:

• whether the remand already fully or partly satisfies the punishment required, and
• whether further custodial or community sanctions are appropriate.

D. “Manifestly excessive” and “wrong in principle”

When the Court of Appeal reviews a sentence, it may quash or vary it if it is:

• manifestly excessive: plainly too long, harsh or burdensome when measured against the relevant guidelines, facts and comparable cases; or
• wrong in principle: based on a misapplication of legal principles or an error of approach (for example, double‑counting aggravating factors or, as here, failing properly to account for time on remand).

In Hawe, the complaint was that the sentence was both: too onerous given the remand and inconsistent with the Lynch principle.

E. Revocation and re‑sentencing of community orders

Under sentencing legislation, a court dealing with a defendant who is already subject to a community order may:

• allow the order to continue unchanged;
• amend its terms; or
• revoke the order and resentence the defendant for the original offence (taking into account any compliance to date).

In Hawe, the Recorder revoked an October 2023 community order and resentenced by effectively incorporating its unpaid work into the new order. The Court of Appeal later had to disentangle this to ensure that:

• the applicant was not doubly punished for the present offences, but
• he did not escape all sanction for the earlier racially aggravated offences.

F. Representation order

At the end of the hearing, counsel raised the issue of a representation order. A representation order is the legal aid authorisation covering the costs of representation in the proceedings. The Court granted such an order, limited to junior counsel. This is a routine, administrative aspect of appellate practice but indicates that:

• the Court considered the issues raised to justify publicly funded representation, and
• the case carries sufficient importance to warrant full adversarial argument.

VIII. Conclusion

R v Hawe is an important modern application and extension of the principle in R v Lynch to the realm of community orders. The core message can be summarised as follows:

• Time spent on remand does not automatically reduce or cancel a community order, but it must be taken into account in the overall proportionality assessment.
• Where the period of remand equals or exceeds the just and proportionate punitive sentence for the offence, it is wrong in principle to impose a community order that would expose the offender to a further risk of punishment on breach.
• This is so even where the community order is partly or predominantly rehabilitative, because rehabilitative requirements are ultimately enforceable by punitive sanctions.
• However, courts must also guard against inadvertent impunity for earlier offences when revoking and re‑imposing community orders across multiple cases. Hawe demonstrates how the appellate court can “lift out” and preserve an earlier community order while quashing the later one.

In a broader sense, the case confirms that fundamental principles of fairness and proportionality – particularly the avoidance of double punishment – apply across the full spectrum of disposals, not only to prison sentences. It should prompt sentencers to:

• be meticulous in identifying the notional custodial term;
• be transparent about how remand has been accounted for; and
• ensure that any community-based sentence adds no more than is genuinely necessary and proportionate, especially where the defendant has already spent a long time in custody awaiting sentence.

Against the backdrop of serious and escalating domestic abuse, Hawe illustrates the Court of Appeal’s dual commitment to:

• protecting victims through restraining orders and recognition of the gravity of abuse; and
• upholding strict limits on the total punishment that the criminal justice system can impose for a given course of conduct, once time on remand is fully credited.

As such, Hawe will be a significant reference point for future sentencing decisions involving long remand periods, complex community order histories, and the ever‑delicate balance between punishment, rehabilitation and protection.