R v John: Discretion and Non-Automatic Credit for LASPO Section 91(3) Remand

Introduction

R v John ([2025] EWCA Crim 511) concerns the proper treatment of time spent on remand to local authority care under section 91(3) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). The appellant, Sean John (“John”), was convicted in May 2022 of multiple sexual offences against a child under 13 and sentenced to six and a half years’ detention. Following his sentence, it emerged that the trial judge had assumed—incorrectly—that the 214 days John spent on remand in local authority care would be automatically deducted from his custodial term. John applied for an appeal against sentence out of time. The Court of Appeal granted extensions of time and leave to appeal, then considered whether any downward adjustment should be made to reflect that period of remand.

Summary of the Judgment

The Court of Appeal (Criminal Division), led by Lord Justice Warby, held that:

Time spent on remand in local authority care under section 91(3) LASPO does not automatically count towards a custodial sentence.
Credit for such remand may only be given by an express judicial decision at sentencing, not by administrative deduction.
The trial judge had mistakenly assumed automatic credit; this was an error of law.
Leave to appeal against sentence was granted, but on the merits no downward adjustment was warranted because the conditions of remand did not equate to detention or a qualifying curfew.
The appeal was dismissed and the original sentence upheld.

Analysis

Precedents Cited

R v A [2019] EWCA Crim 106 – the Court clarified how section 91(3) remand credit should be treated by analogy with qualifying curfew credit under section 240A of the Criminal Justice Act 2003, emphasising that any additional downward adjustment is discretionary and fact-sensitive.
R v D and H [2016] EWCA Crim 1807 – established that credit for qualifying curfew conditions (half a day per day) could guide sentencing adjustments for section 91(3) remand.
R v Anderson [2017] EWCA Crim 2604 – noted that where a judge expressly leads an offender to believe that remand time will count, there may be stronger grounds for credit, though this was not fully argued in the present case.

Legal Reasoning

The court began by distinguishing two forms of youth remand:

Section 91(4) LASPO: Remand to youth detention accommodation, which automatically counts as part of subsequent detention.
Section 91(3) LASPO: Remand to local authority care, which does not automatically count unless the judge makes an explicit decision at sentencing.

Having surveyed the statutory scheme and prior authorities, the Court found that the trial judge’s remark—“The time you have spent remanded in custody to the care of the local authority will count towards your sentence”—revealed a misconception that administrative credit would apply. The judge made no express calculation or declaration of credit as required by Criminal Justice Act 2003 section 240A(8) and Sentencing Act 2020 section 325. The Court therefore treated the assumption as an error of law, justifying appeal.

On the merits, the Court examined:

The nature and strictness of the section 91(3) conditions (no qualifying curfew; requirement to sleep at a specified address).
The pre-sentence report showing familial support, education, sporting and musical activities.
The judge’s original mitigation, which already reduced the sentence to less than half the adult range.

Concluding that the remand conditions imposed restrictions akin to ordinary conditional bail rather than detention, the Court held no further reduction was justified.

Impact

This judgment reinforces that only an express judicial order can convert section 91(3) remand into credit against sentence.
Sentencers must clearly state any days to be deducted and their basis, or risk appeal for error of law.
Appellate courts will scrutinise the factual intensity of remand conditions before granting discretionary credit.
Defence practitioners should raise remand credit points promptly and, if necessary, under the slip-rule or in an early appeal.

Complex Concepts Simplified

Remand in Local Authority Care (s 91(3) LASPO): A young defendant is placed under supervision (e.g., placed with a foster family or guardian) rather than detained in custody. It is not automatically deducted from a later sentence.
Qualifying Curfew Condition: A bail condition requiring the defendant to remain at a specified address for specified hours, automatically attracting half-day credit per day under CJA 2003 s 240A.
Slip Rule: A judge’s power to correct an obvious clerical or mathematical error in sentencing within a short period after judgment.
Administrative Deduction: Routine subtraction of pre-sentence custody days by the Prison Service—only applicable where statute so provides.

Conclusion

R v John clarifies that time spent on remand to local authority care under LASPO section 91(3) does not automatically reduce a custodial sentence. Sentencers must make an explicit credit decision, stating the amount and rationale. Absent such an order, any misconception constitutes an error of law, capable of appeal. Nonetheless, where remand conditions do not resemble detention or a qualifying curfew, courts will rarely grant full time-served credit. This decision underscores the importance of precise sentencing remarks and early identification of credit issues by defence counsel.