Factual and Procedural Background
This case concerns the appellant who was on conditional bail subject to a curfew pending trial for a conspiracy to supply class A drugs. While on bail, a European Arrest Warrant (EAW) was issued by Italy, leading to the revocation of his conditional bail and remand in custody pending extradition. The EAW was later withdrawn, and the appellant was sentenced for the offence in this jurisdiction. Although the judge indicated that qualifying bail periods would count against the sentence, the appellant discovered that no credit was given for the period on remand awaiting extradition. The appellant sought to have his sentence adjusted to reflect this period and also claimed credit for two days spent in police custody upon arrest. He applied for permission to appeal out of time, which was granted by the court for consideration of the substantive issues.
Legal Issues Presented
- Whether the court has the discretion to adjust a lawful sentence to take into account time spent on remand pursuant to a European Arrest Warrant unrelated to the offence for which the appellant was sentenced.
- Whether the appellant should be granted credit for two days spent in police custody prior to his first court appearance.
- Whether permission to appeal out of time should be granted to consider these issues.
Arguments of the Parties
Appellant's Arguments
- The appellant argued that he should receive credit for the time spent on remand under the EAW, as but for the EAW he would have remained on qualifying bail and received credit against his sentence.
- He contended that failure to recognize this period in the sentence calculation would result in a real injustice.
- The appellant also claimed credit for two days spent in police custody after arrest.
- Counsel conceded that statutory credit under section 240ZA(3) of the Criminal Justice Act 2003 (CJA 2003) only applies to remand related to the offence charged or a related offence, which was not the case here.
- Instead, counsel relied on a residual discretion of the court to adjust sentences to achieve justice in exceptional circumstances, arguing that this case warranted such an adjustment.
- It was noted that an application to revoke bail should have been made immediately upon arrest pursuant to the EAW but was not, potentially due to legal representatives’ oversight.
Crown's Arguments
- The Crown accepted the existence of a residual discretion to make allowances for remand time to correct injustice but emphasized that this discretion is not obligatory and should be exercised sparingly.
- They argued that time spent on remand for an unrelated matter does not automatically attract credit and that the period in question was relatively short compared to the total sentence.
- The Crown submitted that the two days spent in police custody were not eligible for credit under section 242(2)(a) CJA 2003 because the custody was not ordered by a court.
- Regarding the EAW remand period, the Crown noted that statutory credit only applies if remand relates to the same or related offence, which was not the case here.
- However, the Crown did not oppose the judge’s potential discretion to consider the remand period had an application been made at sentencing.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R (on the application of Desmond Shields-McKinley) v Secretary of State for Justice [2017] EWHC 658 (Admin) |
Clarification that judicial review is inappropriate to challenge prison governor decisions on credit calculation; proper route is appeal against sentence. |
The court followed this precedent to grant extension of time for appeal and emphasized the proper procedural route rather than judicial review for credit disputes. |
| Dyer v Watson; K v HM Advocate [2004] 1 AC 379 |
High threshold for breach of Article 6 ECHR right to trial within reasonable time; delay can be mitigating factor in sentencing. |
Referenced to explain the exceptional nature of adjusting sentences for delay or justice reasons. |
| Mills v HM Advocate [2004] 1 AC 441 |
Delay in proceedings may justify sentence adjustment due to defendant’s changed circumstances or anxiety. |
Used to illustrate the principle that delay can be a mitigating factor but is exceptional. |
| Attorney Generals Reference No 79 of 2009 [2010] EWCA Crim 338 |
Delay is relevant to what constitutes a just sentence, beyond formal Article 6 assessment. |
Supported the court’s view on the broader discretion to adjust sentences for justice. |
| R v Kerrigan [2014] EWCA Crim 2348 |
Affirmed the court’s discretion to reduce sentence to do justice on particular facts, including excessive delay. |
Provided a key principle supporting residual discretion to adjust sentences. |
| R v Marshall [2016] 1 Cr. App. R.(S) 45 |
Discretion to accord credit where failure to comply with bail conditions was due to administrative error. |
Illustrated application of discretion to grant credit in exceptional circumstances. |
| Al Daour [2011] EWCA Crim 2392 |
Discretion to adjust sentence to account for time spent in police detention where justice requires. |
Confirmed that police detention time is generally excluded but court may adjust in exceptional cases. |
Court's Reasoning and Analysis
The court acknowledged the statutory framework under the Criminal Justice Act 2003, which comprehensively governs credit for time spent on remand or qualifying bail. Parliament’s policy choices, such as partial credit for qualifying curfew and exclusion of unrelated remand periods, were emphasized as limiting the scope for judicial discretion.
The court recognized a residual discretion to adjust sentences to achieve justice, an exceptional jurisdiction primarily invoked in cases of undue delay or other exceptional circumstances. This discretion is not to be exercised lightly or routinely.
Applying these principles, the court found that the appellant’s situation was not exceptional. Parallel proceedings for unrelated offences and overlapping remand periods are common, and the statutory scheme anticipates such occurrences without granting automatic credit. The appellant had accrued potential credit for the extradition-related remand period in Italy, offsetting any disadvantage.
The court also found no error on the part of the sentencing judge, who was unaware at the time that the EAW had been withdrawn. The appellant’s legal representatives’ failure to revoke bail promptly was a matter of oversight but did not justify modifying a lawful sentence. The court emphasized the importance of finality in sentencing and rejected the notion that a better-informed mitigation argument would necessarily amount to an injustice warranting sentence adjustment.
Regarding the two days spent in police custody, the court noted statutory provisions exclude such time from credit unless ordered by a court, which was not the case here. The routine nature of police custody for investigation was insufficient to merit adjustment.
Finally, the court granted permission to appeal out of time, following the guidance from the precedent case of Shields-McKinley, which endorsed the appeal route over judicial review for such credit disputes.
Holding and Implications
The court granted the appellant an extension of time and permission to appeal but ultimately DISMISSED THE APPEAL.
The direct effect is that the appellant’s sentence remains unadjusted, with no credit given for the remand period pursuant to the EAW or for the initial two days in police custody. The court confirmed the limited scope of judicial discretion to modify lawful sentences beyond the statutory credit regime, emphasizing the importance of finality and the exceptional nature of such adjustments. No new precedent was established; the decision reinforces existing principles governing credit for remand and the procedural route for challenging sentence calculations.