Factual and Procedural Background
The Appellant was convicted on 16 September 2021 at the Crown Court of an offence of conspiracy to kidnap. On 9 February 2024 the sentencing Judge imposed an extended sentence of 13 years (10 years custody plus a 3-year extension period). Leave to appeal against sentence was refused by a Single Judge. The Appellant renewed his application for leave to appeal to the Full Court and sought extensions of time (41 days for the renewal application and 430 days for the application for leave to appeal).
The offending occurred in February 2019. The conspirators impersonated police officers, abducted and assaulted the Complainant, searched his phone and made threats and demands for substantial sums of money. The Complainant’s children were present during the initial abduction. The Appellant was linked to the offence by his presence, conduct during the abduction and use of a vehicle fitted with blue lights to resemble a police vehicle.
The Appellant has an extensive criminal record, including multiple prior sentences for robbery and offences involving imitation firearms and a later sentence for possessing a firearm with intent. A Pre-Sentence Report assessed the Appellant as posing a high risk of serious harm; it noted escalation in offending and offending while subject to supervision and licence conditions. Several co-defendants were tried and sentenced or acquitted at various stages.
The Appellant was represented before this Court by Attorney Martin-Sperry, appearing pro bono. He sought an adjournment to obtain access to the case documents on the Digital Case System (DCS) and pressed multiple grounds in support of the renewal/application for leave to appeal.
Legal Issues Presented
- Whether the Full Court should grant an adjournment to permit counsel access to case materials on the DCS.
- Whether the Appellant's sentence was manifestly excessive because the time spent on remand was not credited, in alleged contravention of section 240ZA of the Criminal Justice Act 2003.
- Whether the sentencing Judge failed to apply a COVID-era reduction applicable to other defendants, producing unfair disparity in sentencing.
- Whether there was unjustified disparity between the Appellant's extended sentence and the sentences imposed on co-defendants.
Arguments of the Parties
Appellant's Arguments
- The Judge had granted full credit for time on remand but the Prison Service failed to deduct three years spent on remand, rendering the sentence manifestly excessive; section 240ZA CJA requires remand time relating to the offence to be credited.
- The Appellant should have benefited from a "COVID" effect sentence reduction (the Manning line), and failure to apply it created unfair disparity with co-defendants who allegedly received such reductions.
- There was unjustified disparity because the Appellant alone received an extended sentence without adequate distinction or articulated rationale differentiating him from co-defendants.
- The Appellant was unfairly disadvantaged by being sentenced later than some co-defendants, affecting the operation of remand credit.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Manning [2020] EWCA Crim 592 |
Invocation of COVID-era sentence reduction as a potential mitigating factor. |
The Court considered the Appellant's reliance on the Manning line but found no transcriptary or factual basis that the sentencing Judge applied any COVID reduction to co-defendants; additionally, the Appellant's relevant custody for this sentence began after pandemic conditions had ended. |
| Phillips [2015] EWCA Crim 427, [2015] 2 Cr App R (2) 19 |
Construction of s.240ZA(4) and (5) CJA and the limited residual discretion to disapply their effect to correct injustice. |
The Court applied Phillips to confirm that the statutory effect of subsections (4) and (5) can be disapplied only by a careful exercise of residual discretion in exceptional cases; it found no indication the sentencing Judge had exercised that discretion here. |
| Kerrigan [2014] EWCA Crim 2348, [2015] 1 Cr App (S) 29 |
Recognition of a narrow residual discretion to correct injustice where statutory remand-credit provisions would otherwise operate harshly. |
The Court relied on Kerrigan to explain the limited scope of the discretion and confirmed it had not been engaged by the sentencing Judge in this case. |
| Costello [2010] EWCA Crim 371 |
Principle that concurrent sentences may operate such that sentences run alongside each other. |
The Court noted that once the sentence for the index offence was imposed it ran concurrently with the existing Plymouth sentence, so the Appellant benefited from statutory provisions by having sentences run in tandem. |
| Fairclough [2021] EWCA Crim 1214 |
Guidance that there is no rule requiring all sentences to be reduced for COVID-era detention and reductions become less likely for longer sentences. |
The Court cited Fairclough to reject the automatic application of COVID reductions and to support the conclusion that no such general reduction was required here. |
Court's Reasoning and Analysis
The Court first refused the adjournment request. Although counsel lacked access to the DCS, the Court had access to the relevant materials and concluded the Appellant's grounds lacked merit; an adjournment would not be productive.
On remand credit, the Court analysed s.240ZA CJA as it stood at sentencing. Subsection (3) provided for remand days to count as time served, but subsections (4) and (5) exclude days when the offender was detained in connection with another matter and prevent double-counting. The Court applied Phillips and Kerrigan to explain the narrow, residual discretion to disapply subsections (4) and (5) only to correct a specific injustice after careful assessment. The sentencing Judge's generic remark that remand time would count did not evidence exercise of that discretion. The factual history indicated the Appellant had been recalled and detained in connection with other matters such that the statutory exclusions applied; the resulting situation was largely of the Appellant's own making.
The Court observed that, once sentenced for the index offence, that sentence ran concurrently with the earlier Plymouth sentence (Costello), so the Appellant obtained the statutory benefit of concurrent operation. The Court was unsympathetic to the contention that later sentencing caused injustice absent an application to the sentencing Judge to disapply the statutory effect under the residual discretion.
Regarding the COVID-related argument, the Court examined the transcript of the sentencing remarks for the relevant co-defendant and found no reference to COVID or prison conditions; the reduction in that co-defendant's case was expressly linked to progress made on remand and plea credit. Even if a reduction for COVID conditions had been applied to a co-defendant, the Appellant's custody relevant to this sentence commenced after pandemic conditions, and Fairclough established there is no rule mandating COVID reductions and they are less likely for longer sentences.
On alleged disparity, the Court emphasised the Appellant's more serious record (including firearms and further serious offending shortly after release on licence) and the PSR risk assessment supporting a finding of dangerousness. The sentencing Judge was entitled to distinguish the Appellant from co-defendants and to impose an extended sentence to protect the public. The Judge was not obliged to elaborate on self-evident differences between offenders.
Having considered the grounds and the materials, the Court concluded none established an arguable case that the sentence was manifestly excessive.
Holding and Implications
APPLICATION FOR LEAVE TO APPEAL REFUSED.
Specifically, the Court refused the adjournment request and refused the application for leave to appeal against sentence. Because the proposed grounds were not arguable, the applications for extensions of time (41 days and 430 days) were unnecessary and therefore did not arise. The decision has the direct effect of leaving the sentencing decision and sentence in place; the opinion does not establish any new principle of law beyond application of established authorities.