Excessive Post‑Plea Delay During Licence Recall May Constitute “Exceptional Circumstances” to Moderate the Firearms Statutory Minimum (Fact-Sensitive)

Case: R v Jowitt Neutral citation: [2026] EWCA Crim 694
Court: England and Wales Court of Appeal (Criminal Division) (Stuart-Smith LJ, Andrew Baker J, Richardson KC (sitting))
Date: 20 May 2026
Procedure: Attorney General’s Reference (Unduly Lenient Sentence) under s.36 Criminal Justice Act 1988

1. Introduction

This Attorney General’s Reference challenged a sentence imposed for (i) possession of a prohibited firearm and (ii) possession of ammunition without a certificate. The offender pleaded guilty to possessing one of two loaded pistols (and later to the ammunition in that pistol), but was ultimately acquitted—after three trials—of more serious allegations of possession with intent to endanger life.

Two issues dominated the Reference:

  • Guideline categorisation: whether the sentencing judge should have treated harm as Category 1 rather than Category 2 under the Firearms guideline.
  • Statutory minimum: whether the judge was entitled to go below the five-year statutory minimum (under s.311 Sentencing Act) on the basis of “exceptional circumstances” arising from delay and the offender’s recall status (meaning remand time would not count).

2. Summary of the Judgment

The Court of Appeal dismissed the Reference, holding that the sentence was not unduly lenient.

  • Ground 1 (categorisation): The sentencing judge was entitled, on the accepted basis of plea and acquittals, to place the offence in Category B2 (medium culpability, Category 2 harm) rather than Category 1 harm.
  • Ground 2 (exceptional circumstances): Although delay and recall will not usually justify going below the statutory minimum, it was open on these facts to treat the circumstances as exceptional—particularly given the approach contemplated by an earlier trial judge when deciding not to sentence immediately after the guilty plea.

3. Factual and Procedural Context (Why the Case Became Unusual)

Police found two working pistols, both loaded and “made ready,” in and around a hired car near a nightclub: one in a bag on the front passenger seat, the other beneath the car, having been placed there by the offender as police arrived. The offender’s accepted case was that his possession was brief: he noticed one firearm late, panicked (being on licence), and hid it.

The procedural history was protracted: the offender pleaded guilty to the possession count and (later) to the ammunition count, but the prosecution pursued more serious allegations through multiple trials. The offender was on recall from a prior long sentence; critically, time spent remanded for the new offence did not count towards any eventual sentence for that offence.

4. Analysis

4.1 Sentencing Framework: Guideline and Statutory Minimum

The sentencing judge proceeded on common ground that:

  • the relevant firearm fell within the guideline’s most serious weapon type (“type 1” in the judge’s terminology); and
  • s.311 Sentencing Act required a sentence of at least five years unless “exceptional circumstances” relating to the offence or offender justified departure.

Under the Firearms guideline, the judge assessed:

  • Culpability: rejecting high culpability because he was not sure the offender intended criminal use or was reckless as to criminal use; but placing him at the bottom of medium culpability because the firearm was loaded.
  • Harm: rejecting Category 3 (minimal risk) due to the public setting, the proximity to a busy nightclub, and the firearms being loaded/cocked; but treating the offender’s case as Category 2 rather than Category 1.

4.2 Ground 1 — Harm Categorisation (Category 1 vs Category 2)

The Attorney General argued that loaded, ready-to-fire weapons near a crowded venue created a high risk requiring Category 1 harm. The offender relied on the accepted basis: short, panic-driven possession with no proven intention/recklessness as to criminal use, plus acquittal on intent-to-endanger-life counts.

The Court of Appeal treated the point as turning on the basis of plea, the acquittals, and the sentencing judge’s explicit finding that he could not be sure of intention or recklessness as to criminal use. Against that factual platform, and noting the careful explanation given, the court held there was no miscategorisation: Category 2 harm remained within the judge’s permissible evaluative range.

4.3 Ground 2 — “Exceptional Circumstances” and Delay While on Recall

(a) The general principle reaffirmed

The Court of Appeal accepted the Attorney General’s “basic submission” that delay (including delay caused by retrials) and the fact that a defendant is on recall (so remand time will not count) will not ordinarily amount to exceptional circumstances disapplying the statutory minimum. The statutory minimum remains the norm, and “exceptional” retains a high threshold.

(b) Why this case crossed the line (on its facts)

The court’s key move was to treat this case as factually distinctive because of what occurred at the end of the first trial:

  • An earlier judge had considered sentencing the offender immediately to the mandatory minimum (so the minimum would start to run), but chose not to—partly weighing the prejudice that delay could cause given recall and non-counting remand time.
  • That judge recorded an intention to treat delay as potentially going to “exceptional circumstances” if the case later warranted it.
  • That plan was “thwarted” through no party’s fault when different judges conducted later trials and sentencing.

The Court of Appeal held that, although this did not create a “legitimate expectation properly so called,” it was nonetheless a material feature supporting the sentencing judge’s conclusion that applying the five-year minimum without adjustment would be “arbitrary and disproportionate” on these facts. The judge was therefore entitled to moderate the statutory minimum, giving recognition to a period approximating the post-first-trial delay.

4.4 Precedents Cited

R v Kerrigan [2014] EWCA 348

The sentencing judge relied on R v Kerrigan [2014] EWCA 348 for the proposition that there is a residual discretion to do justice on the particular facts, including in cases of excessive delay. In this decision, the Court of Appeal did not expand Kerrigan into a broad “delay exception” to statutory minimums; rather, it treated Kerrigan as supportive of the conceptual possibility that delay, in an appropriate case, may contribute to the “exceptional circumstances” evaluation.

Importantly, the Court of Appeal emphasised that the outcome was entirely fact sensitive and did not undermine the “general and well-established principles” governing when the five-year minimum may be disapplied.

4.5 Legal Reasoning: What the Court of Appeal Was (and Was Not) Doing

  • Respecting the sentencing judge’s fact-finding perimeter: The court accepted that the sentencing exercise was anchored in the unchallenged basis of plea and the acquittals, and that the judge had declined to find more serious inferences to the criminal standard.
  • Applying the “unduly lenient” discipline: The question was not whether the Court of Appeal would have sentenced differently, but whether the sentence fell outside the range of permissible outcomes—particularly given the mandatory minimum and its exception.
  • Containing the exception: The court expressly limited the decision’s reach: it validated a conclusion that the circumstances were exceptional here, while reaffirming that delay/recall do not generally suffice.

4.6 Impact

The decision is likely to be cited in two narrow contexts:

  • Mandatory minimum firearms cases: as an example of a rare fact pattern where prolonged, non-fault delay interacting with recall and non-counting remand time may justify concluding that strict application of the minimum would be “arbitrary and disproportionate.”
  • Procedure-aware sentencing: where earlier judicial case-management decisions (including whether to sentence immediately after a plea when other counts remain) are relevant to later “exceptional circumstances” analysis, even absent any formal legitimate expectation.

At the same time, the court’s express caution means it should not be read as lowering the “exceptional circumstances” bar or creating a general “credit for recall time” principle.

5. Complex Concepts Simplified

  • Attorney General’s Reference (unduly lenient): a mechanism allowing the Attorney General to ask the Court of Appeal to increase a sentence that is said to be too low in law.
  • Statutory minimum (s.311 Sentencing Act): Parliament requires at least five years for certain firearm possession offences unless the court finds “exceptional circumstances.”
  • Exceptional circumstances: not “unusual” or “hard,” but truly out of the ordinary such that applying the minimum would be arbitrary and disproportionate.
  • Recall: return to prison during the licence period of an earlier sentence. Time spent in custody due to recall can mean later remand time does not count towards the new sentence, creating potential “dead time.”
  • Newton hearing: a procedure to resolve disputed facts at sentencing. Here, the prosecution did not seek to challenge the offender’s basis of plea via a Newton hearing, leaving the sentencing judge to proceed on the accepted factual basis.
  • Terminatory rulings: trial rulings that can bring a case (or part of it) to an end; they may be appealed, potentially causing delay.
  • Harm/culpability categories (guideline): structured factors used to locate the offence within a sentencing range; appellate courts usually intervene only if the categorisation is wrong in principle or plainly outside the judge’s evaluative discretion.

6. Conclusion

R v Jowitt confirms that, while the five-year minimum for prohibited firearm possession remains the starting norm, “exceptional circumstances” can—rarely—be found where prolonged post-plea delay, combined with recall consequences and the particular procedural path the case took, would make strict application of the minimum arbitrary and disproportionate. The Court of Appeal upheld both the guideline categorisation and the exceptional-circumstances conclusion, stressing that the decision is tightly confined to its facts and does not dilute the statutory minimum’s general force.