Unlawful Under-Minimum Foreign Travel Restriction Orders: Court of Appeal Must Quash (Not Increase) on a Defendant-Only Sentence Appeal

Case: Cassanova, R. v
Citation: [2026] EWCA Crim 734
Court: Court of Appeal (Criminal Division), England and Wales
Date: 19 May 2026
Judges: Lord Justice Popplewell, Mr Justice Goose, Mr Justice Saini

1. Introduction

This was a defendant’s appeal against sentence following a guilty plea to being concerned in the fraudulent evasion of a prohibition on the importation of a Class B drug (cannabis), contrary to section 170(2), (3) and (4) Customs and Excise Management Act 1979.

The key issues were:

• whether the custodial term (16 months after plea credit) was wrong in principle or manifestly excessive, given the guideline categorisation and mitigation; and
• whether an FTRO imposed as a consequential order was lawful and, if not, what remedy the Court of Appeal could provide on a defendant-only appeal.

2. Summary of the Judgment

• Sentence appeal dismissed: The Court upheld the Recorder’s approach to harm/culpability categorisation under the drug sentencing guideline and found the resulting term (24 months before plea credit; 16 months after) neither erroneous nor excessive.
• FTRO quashed: The FTRO was imposed for 12 months from release, but the statutory minimum is two years under section 33 Criminal Justice and Police Act 2001. The Court held it could not increase the order (even to make it lawful) because doing so would increase punishment contrary to section 11(3) Criminal Appeal Act 1968. It therefore quashed the FTRO.

3. Factual Background (Offence Overview)

• The appellant (aged 21) arrived at Heathrow from Thailand with two suitcases.
• Both suitcases contained vacuum-packed cannabis with a total net weight of 24 kilograms (stated street value up to £720,000).
• He gave “no comment” interview but pleaded guilty at the first opportunity.

4. Sentencing in the Crown Court

4.1 Guideline assessment

• Harm: The Recorder treated the case as between category 2 and category 3 harm (category 3 indicative weight 6kg; category 2 indicative weight 40kg), ultimately adopting category 3 but recognising the weight (24kg) required upward movement within range.
• Culpability: Features of significant role (awareness of scale; expectation of significant financial advantage) but also some lesser role features (no influence on others; some naivety). The Recorder adopted category 3 / significant role with downward adjustment for lesser role features.

4.2 Mitigation and outcome

• Mitigation included youth, previous good character, isolated offending, supportive references, and family support.
• Term before plea credit: 2 years’ imprisonment.
• One-third credit for guilty plea: reduced to 16 months’ imprisonment.
• Ancillary orders included forfeiture/destruction of drugs and an FTRO.

5. Grounds of Appeal

• Ground 1: The Recorder allegedly took an incorrect starting point (two years).
• Ground 2: Insufficient weight was allegedly given to mitigation; it was argued there was effectively no reduction for mitigation beyond adjustments for harm/role.

6. Analysis

6.1 Precedents cited

No previous authorities were cited in the transcript. The Court’s reasoning turned on the application of:

• the (Sentencing Council) Drugs Guideline framework for harm and culpability; and
• the statutory constraints in section 33 Criminal Justice and Police Act 2001 (minimum FTRO duration) and section 11(3) Criminal Appeal Act 1968 (limits on increasing severity on a defendant’s appeal).

6.2 Legal reasoning (custodial term)

• Guideline calibration was endorsed: The Court held the Recorder carefully evaluated the “mixed” features across harm and culpability and was entitled to adopt category 3 harm (a favourable choice for the appellant) while moving upward within the range to reflect 24kg.
• Mitigation was not ignored: The Court rejected the submission that mitigation received no effect. It treated the final pre-discount figure of two years as reflecting (i) upward movement for quantity, (ii) downward adjustment for lesser role features, and (iii) further allowance for personal mitigation.
• No error in principle / not excessive: Given the importation of a substantial quantity of cannabis, a 24-month term before plea credit (and 16 months after) was within the court’s proper sentencing discretion.

6.3 Legal reasoning (FTRO illegality and appellate remedy)

• Illegality identified: An FTRO for 12 months was below the statutory minimum of two years in section 33 Criminal Justice and Police Act 2001, so it was unlawful.
• Appellate constraint: The Court held it could not increase the order to two years because that would increase punishment and would breach section 11(3) Criminal Appeal Act 1968 on a defendant-only appeal.
• Outcome: The FTRO was quashed (and the remainder of the sentence appeal dismissed).

6.4 Impact

• Practical consequence for sentencing courts: FTROs must be checked for compliance with the statutory minimum. An under-minimum FTRO risks being lost entirely on appeal if only the defendant appeals.
• Strategic consequence for appeals: The decision illustrates that appellate “correction” powers are not unlimited: where correction would worsen the defendant’s position, section 11(3) can require the Court to remove (quash) an unlawful punitive order rather than increase it.
• Broader doctrinal point: The case reinforces the separation between (i) identifying illegality and (ii) selecting a lawful appellate remedy within jurisdictional limits—especially where only one side appeals.

7. Complex Concepts Simplified

• “Harm category” (drug guideline): A guideline assessment driven largely by drug type and quantity. Indicative weights help place a case into a band, but courts can move within the range if the facts sit between categories.
• “Culpability / role”: The guideline distinguishes levels of involvement (e.g., leading, significant, lesser). A “significant role” can include awareness of the operation and expectation of substantial reward, even where the offender is not an organiser.
• “Ancillary order”: An additional order attached to sentence (here, an FTRO) which can carry punitive and preventive effects.
• “Statutory minimum”: Parliament sometimes sets a floor below which a court cannot go. If the court does, the order is unlawful.
• Section 11(3) Criminal Appeal Act 1968 (in simple terms): On an appeal by the defendant, the appellate court generally cannot make the result worse for the defendant by increasing punishment.

8. Conclusion

[2026] EWCA Crim 734 confirms two main points. First, appellate courts will be slow to interfere with a sentencing judge’s guideline evaluation where the judge has transparently balanced harm, role, quantity, and mitigation within the permitted range. Second—and most distinctively—the Court of Appeal will not increase an unlawfully lenient FTRO to the statutory minimum on a defendant-only appeal, because that would contravene section 11(3) Criminal Appeal Act 1968; instead, it must quash the unlawful order.