Kerrigan & Anor, R. v

Time spent in custody after recall on licence cannot automatically be credited against a later sentence where it has already been served under the recalled sentence. Under Criminal Justice Act 2003, section 240ZA, a day may count as time served for one sentence only.

A sentencing judge cannot make the later sentence consecutive to a sentence from which the offender has been released on licence, or inflate it to secure additional punishment. The Prison Service calculates remand credit. A judge nevertheless retains a discretion to reduce an otherwise appropriate sentence where justice exceptionally requires it, including for excessive delay. Delay must be assessed in its full context and will rarely justify a reduction.

Two otherwise unconnected appeals against sentence were heard together because both appellants had committed further offences while released on licence. Each had been recalled to prison and sought a reduction in the sentence for the later offence to reflect time spent in custody before sentence.

Walker pleaded guilty to attempted robbery and received an extended sentence of 98 months. Kerrigan pleaded guilty to robbery and received four years’ imprisonment. Each contended that delay before sentence had meant that time on recall could not count towards the new sentence, producing unfairly additional punishment.

The common issue was whether the appellants were entitled to credit, or a sentencing reduction, for custody awaiting sentence which coincided with custody following recall on licence.

1. The appeals were dismissed. Neither sentence was excessive and neither appellant established an injustice requiring a reduction.
2. The court applied the statutory scheme explained in Costello [2011] 1 WLR 638. Where an offender has been released on licence, the sentencing judge cannot order the later sentence to run consecutively to the earlier sentence. Nor may the judge increase the later sentence to secure further punishment for offending on licence. Recall is for the Secretary of State, not the sentencing court.
3. Under section 240ZA of the Criminal Justice Act 2003, remand credit is calculated administratively by the Prison Service. A day in custody counts towards one sentence only. The appellants were detained under their recalled sentences for the relevant periods. They therefore had no entitlement to double credit against the later sentences.
4. A judge retains a general discretion to reduce an otherwise appropriate sentence where justice on the particular facts requires it. Excessive delay may be relevant even without a breach of Article 6 of the European Convention on Human Rights. However, the Article 6 reasonable-time threshold is high, and reductions for delay will be unusual.
5. The delays here were satisfactorily explained by the proper course of dealing together with outstanding matters and co-accused. They were not excessive. Walker’s position also resulted partly from his continued association and offending with his co-accused. Kerrigan’s outstanding counts might have been reviewed sooner, but the delay did not cause the requisite concern. Neither appellant had made exceptional progress in prison or acquired any legitimate expectation of a reduction.

• Court of Appeal (Criminal Division): Appeals against sentence dismissed in [2014] EWCA Crim 2348.
• Crown Court: Walker received an extended sentence of 98 months for attempted robbery. Kerrigan received four years’ imprisonment for robbery. The sentencing courts gave no reduction for time spent in custody after recall on licence.