Standard “Remand Counts” Remarks Do Not Disapply s 240ZA CJA 2003 Where Custody Also Relates to Recall/Other Matters

1) Introduction

In R v Worrell [2026] EWCA Crim 893, the Court of Appeal (Criminal Division) (Lord Justice Dingemans, Mr Justice Murray, Mrs Justice Heather Williams) refused an applicant’s renewed application for leave to appeal against an extended sentence of 13 years (custodial term 10 years plus extension period 3 years) for conspiracy to kidnap contrary to section 1(1) Criminal Law Act 1977.

The appeal attempted to reframe the sentence as manifestly excessive by arguing (i) custody on remand had not been properly credited, (ii) a “COVID reduction” created unfair disparity, and (iii) there was unjustified disparity because the applicant alone received an extended sentence. The Court rejected each contention and also refused an adjournment sought because counsel lacked access to the Digital Case System.

2) Summary of the Judgment

  • Adjournment refused: the Court had the relevant materials and found the grounds plainly unmeritorious.
  • Remand credit ground failed: under section 240ZA Criminal Justice Act 2003, days in custody do not count where the offender was also detained “in connection with any other matter” (including recall), unless a residual discretion is expressly exercised to correct injustice.
  • No implicit exercise of discretion: the sentencing judge’s standard remark that remand time “will count” was not an indication of disapplying section 240ZA(4)–(5).
  • COVID/disparity ground failed: there was no transcript support that a co-conspirator’s sentence was reduced for COVID conditions; and in any event COVID reductions are not automatic and were irrelevant to the applicant because his sentence began post-pandemic.
  • Extended sentence justified: given the applicant’s record (including firearms/weapon-related offending), the offence features, and the PSR risk assessment, the finding of dangerousness and imposition of an extended sentence were well within the judge’s discretion.

3) Analysis

3.1 Precedents Cited

(a) Phillips [2015] EWCA Crim 427, [2015] 2 Cr App R (2) 19

The Court treated Phillips [2015] EWCA Crim 427, [2015] 2 Cr App R (2) 19 as confirming the practical effect of section 240ZA(4)–(5): where remand time overlaps with custody “in connection with any other matter” (notably imprisonment following recall after offending on licence), that overlap is not creditable towards the new sentence. The case anchored the Court’s rejection of the applicant’s argument that remand “must” be deducted absent an express disapplication.

(b) Kerrigan [2014] EWCA Crim 2348, [2015] 1 Cr App (S) 29

The Court relied on Kerrigan [2014] EWCA Crim 2348, [2015] 1 Cr App (S) 29 for the existence and strict limits of a residual discretion to make allowance for time that does not count under the statute, but only to correct an injustice (for example, excessive delay). The Court emphasised Kerrigan’s warning that this discretion cannot be used to undermine Parliament’s clear scheme.

Applying Kerrigan, the Court held there was nothing in the sentencing remarks suggesting (i) an application had been made, (ii) the judge identified any “injustice” warranting correction, or (iii) the judge undertook the kind of fact-sensitive assessment required to disapply the statutory outcome.

(c) Costello [2010] EWCA Crim 371

The Court cited Costello [2010] EWCA Crim 371 to explain concurrency once the index sentence was imposed: after sentence in February 2024, the index sentence ran concurrently with the earlier “Plymouth” sentence. This undercut the applicant’s complaint that later sentencing inherently created unfairness; the judge could properly be alive to concurrency consequences when choosing when to sentence.

(d) Manning [2020] EWCA Crim 592 (line of authorities) and Fairclough [2021] EWCA Crim 1214

The applicant invoked the Manning [2020] EWCA Crim 592 line on sentencing mitigation for pandemic prison conditions. The Court’s response drew on Fairclough [2021] EWCA Crim 1214: there is no rule requiring universal reductions, and the longer the sentence, the less likely a COVID reduction will be appropriate.

3.2 Legal Reasoning

(a) Remand credit: the decisive operation of section 240ZA(4)–(5)

The appeal’s core misstep was treating section 240ZA(3) as a general entitlement to credit for remand time. The Court read section 240ZA(3) in its statutory context: it is expressly “subject to” subsections (4) to (6). Subsection (4) excludes any day on which the offender was also detained in connection with another matter; subsection (5) prevents double-counting.

On the facts as the Court could discern them, much of the applicant’s custody was referable to recall and/or other proceedings/sentences. That brought the case squarely within the statutory exclusion and left the applicant dependent on the residual Kerrigan discretion—which, the Court found, was neither invoked nor exercised.

(b) “Standard form” sentencing remarks do not equal an express disapplication

A key point of practical importance is the Court’s treatment of the sentencing judge’s closing comment that remand time “will count”. The Court characterised that statement as standard form, reflecting the usual position under section 240ZA(3), and not as a reasoned decision to override section 240ZA(4)–(5). Because the residual discretion is exceptional and fact-sensitive, it requires more than a generic remark: it requires an identifiable evaluation directed to “injustice”.

(c) Later sentencing date: no unfairness where concurrency and statutory rules explain the outcome

The applicant argued disadvantage from being sentenced later than co-conspirators, because sentence time “only ran” from imposition. The Court was unsympathetic: any disadvantage flowed largely from the applicant’s own post-licence offending and the statutory rule against dual credit. Further, the Court considered it likely the judge postponed sentence legitimately and with awareness of concurrency consequences; and if a genuine unfairness had arisen from delay, an application could have been made to seek the Kerrigan-type adjustment.

(d) COVID disparity: evidential and doctrinal failure

The “COVID reduction” argument collapsed for two reasons. First, on the transcript of the co-conspirator’s sentencing remarks, the Court found no reference to COVID or prison conditions; the reduction was grounded instead in offender-specific progress and remorse. Second, even if a COVID reduction had been given, the applicant’s relevant custody for this sentence began after pandemic conditions were no longer operative; and in any event Fairclough confirms reductions were never automatic.

(e) Extended sentence and disparity: dangerousness and offender history justified differentiation

The applicant’s complaint that he alone received an extended sentence was rejected as misconceived. The judge was required to address dangerousness for a relevant serious offence, and was entitled to rely on the offence’s features, the PSR’s high-risk assessment, and the applicant’s extensive record including firearms/weapon-related offending and repeat serious offending shortly after release on licence. By contrast, the co-conspirators were not similarly situated in criminal history or assessed risk. The Court held the distinction was self-evident and did not require elaborate explanation.

3.3 Impact

  • Clear appellate message on section 240ZA: defendants cannot assume remand time will be credited where it overlaps with recall/other detention; the statutory exclusions are central, and arguments must be framed through the narrow Kerrigan residual discretion.
  • Sentencing practice point: generic “remand counts” remarks will not be treated as an implicit, reasoned decision to disapply section 240ZA(4)–(5). If a party seeks an adjustment, it must be clearly raised with supporting facts and an “injustice” rationale.
  • COVID mitigation remains contextual: Manning-type submissions require evidential grounding and must contend with Fairclough’s caution, especially for longer sentences.
  • Disparity arguments must compare like with like: extended sentences based on dangerousness are particularly resistant to disparity challenges where criminal history and risk profiles differ substantially.

4) Complex Concepts Simplified

Extended sentence
A sentence combining (i) a custodial term and (ii) an additional licence “extension period”, imposed where the court finds dangerousness and considers extra supervision is necessary for public protection.
Dangerousness
A finding that the offender presents a significant risk of committing further specified offences and causing serious harm, justifying enhanced protective sentencing measures.
Remand credit (section 240ZA CJA 2003)
Time spent in custody before sentence can count towards the sentence, but not if on the same day the offender was also detained for another reason (e.g., recall to prison, another case), and not more than once.
Residual discretion (Kerrigan)
A narrow safety valve allowing a court, exceptionally, to adjust for custody time that does not statutorily count, but only to correct an identifiable injustice (such as excessive delay), not simply to neutralise the statute’s intended effect.
Concurrency (Costello)
Where two custodial sentences run at the same time. Concurrency can mitigate total time served, but it does not retroactively convert excluded remand time into credit if section 240ZA(4)–(5) applies.

5) Conclusion

[2026] EWCA Crim 893 reinforces that section 240ZA’s exclusions are not sidestepped by standard sentencing remarks, and that any adjustment for “lost” remand time depends on a tightly confined Kerrigan discretion grounded in demonstrable injustice. The decision also confirms the limited utility of COVID-based and disparity arguments absent transcript support and meaningful comparability—particularly where dangerousness and public protection drive the sentencing outcome.