Factual and Procedural Background
These two unconnected appeals were heard together as they raise the same legal issue concerning entitlement to credit for time spent in custody awaiting sentence, which coincided with time spent in custody following recall on licence.
In the first case, the Appellant, aged 20 at conviction, had a prior conviction for aggravated burglary. He committed a serious burglary in 2010 and was sentenced to detention. After release on licence, he committed an attempted robbery jointly with a co-offender. The Appellant provided the co-offender with a weapon and transportation to commit the robbery. Following arrest, he was recalled to prison on licence. He pleaded guilty to attempted robbery and was sentenced to an extended term of 98 months.
In the second case, the Appellant had multiple prior convictions and was serving a sentence for domestic burglary when he committed a robbery on licence. He was recalled to prison and pleaded guilty to the robbery. Due to outstanding charges and co-accused trials, there was a delay in sentencing. Eventually, he was sentenced to four years' imprisonment.
Both appellants challenged the failure to credit time spent in custody on recall on licence towards their new sentences, raising issues about delay and the calculation of custody time.
Legal Issues Presented
- Whether appellants are entitled to credit for time spent in custody awaiting sentence that coincided with custody on recall on licence.
- Whether delay in sentencing justifies reduction in sentence or credit for time served.
- The proper application and interpretation of statutory provisions governing calculation of time served and the prohibition on double credit for overlapping custodial periods.
- The scope of judicial discretion to adjust sentences in light of delays and the effect of licence recall.
Arguments of the Parties
Appellants' Arguments
- The sentence was manifestly excessive and failed to give sufficient weight to mitigating factors such as the nature of the offence and guilty plea.
- The finding of dangerousness and extended sentence were unjustified, particularly given the lack of actual violence or serious harm caused by the Appellant.
- The Appellant had served significant time in custody for breach of licence prior to sentence, with delays in sentencing not attributable to him, and should receive credit for this time.
- The delay in sentencing caused undue prejudice, effectively resulting in a consecutive sentence contrary to statutory provisions.
Respondent's Arguments
- The appellants are not entitled to double credit for time spent in custody related to two different matters under section 240ZA of the Criminal Justice Act 2003.
- Judges no longer have power to order sentences to run consecutively to existing sentences where the offender is on licence; the prison service administratively calculates time served.
- Delay in sentencing, although regrettable, did not breach the high threshold for violation of the reasonable time requirement under Article 6 of the European Convention on Human Rights.
- Judicial discretion to reduce sentence for delay is limited and must be exceptional; no such exceptional circumstances arose here.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Costello [2011] 1 WLR 638 |
Judicial power limitations on ordering consecutive sentences for offences committed on licence; prohibition of inflating sentences to circumvent statutory provisions. |
The court accepted the statutory anomaly but confirmed judges cannot order consecutive sentences or inflate sentences for offences committed on licence. |
| Archer v Governor of HMP Low Newton [2014] EWHC 2407 (Admin) |
Interpretation of section 240ZA regarding automatic administrative calculation of remand time credit by the Prison Service. |
Confirmed that calculation of remand time is an administrative task, not a judicial discretion. |
| Dyer v Watson; K v HM Advocate [2004] 1 AC 379 |
High threshold for breach of reasonable time requirement under Article 6 ECHR. |
Emphasized that delay must cause real concern to amount to breach; courts should not intervene lightly. |
| Mills v HM Advocate [2004] 1 AC 441 |
Delay may justify sentence adjustment due to anxiety or life changes during the delay. |
Delay-related grounds can justify sentence reduction but require exceptional circumstances. |
| Attorney General's Reference No 79 of 2009 [2010] EWCA Crim 338 |
Effect of delay on sentencing; relevance to just sentencing despite delay. |
Delay relevant to what constitutes a just sentence, but applications for reduction are unusual. |
Court's Reasoning and Analysis
The court carefully analysed the statutory framework governing sentences and credit for time served, particularly sections 240ZA and 265 of the Criminal Justice Act 2003. It held that offenders recalled on licence cannot receive double credit for time spent in custody relating to both the original sentence and the new offence. The calculation of remand time credit is an administrative function of the Prison Service, not a judicial discretion.
The court acknowledged the appellants' complaints about delay in sentencing but found that the delays were not excessive or unreasonable enough to breach the high threshold required under Article 6 of the European Convention on Human Rights. It noted that the appellants were aware of the consequences of offending on licence and that their fate was not uncertain.
The court rejected the appellants' contention that the delay was entirely outside their control, particularly in the first case where the appellant's own conduct contributed to recall. It emphasised that the sentencing judge had properly applied sentencing guidelines and principles, including the dangerousness finding and the aggravating features of offending on licence.
Ultimately, the court concluded that there was no injustice warranting interference with the sentences imposed. It affirmed the statutory prohibition on double credit and the limited scope for judicial discretion to reduce sentences due to delay.
Holding and Implications
The court DISMISSED both appeals.
The direct effect of this decision is that appellants are not entitled to credit for time spent in custody on recall on licence that coincides with custody awaiting sentence for a new offence. The sentences imposed stand as lawful and appropriate. The court reaffirmed the statutory framework and the administrative role of the Prison Service in calculating remand credit, underscoring the limited judicial discretion in this area. No new precedent was established beyond the clear application of existing statutory provisions and case law.