Phillips, R. v

A recalled offender has no entitlement to a sentence reduction merely because custody on remand for a new offence overlaps with custody on recall and therefore cannot count as time served under the Criminal Justice Act 2003. The sentencing court retains a residual discretion to reduce an otherwise appropriate sentence where the particular facts, such as excessive delay, create an injustice. That discretion is not a formula for neutralising the statutory scheme.

The Article 6 reasonable-time guarantee has a high threshold and protects against prolonged uncertainty, not loss of credit for overlapping custody. Different actual time in custody between recalled and non-recalled co-offenders does not itself create unjust disparity.

Three recalled prisoners appealed their sentences. Phillips received six months’ imprisonment for affray after the judge reduced an otherwise appropriate 12-month sentence to reflect delay in investigation and charge. He contended that the reduction should have ensured his release by the end of his recalled sentence.

O’Brien and Kalychurn each received eight years’ imprisonment for conspiracy to commit aggravated burglary. Their sentencing had been deferred for about seven months after their guilty pleas while proceedings against a co-accused concluded. They contended that the judge should have reduced their sentences because their overlapping recall custody could not be credited and because a non-recalled co-offender would serve less actual time.

The common issue was the proper scope of the sentencing court’s residual discretion where remand custody overlaps with recall custody.

1. Appeals dismissed. Leave to appeal was granted to Phillips, but his appeal and the appeals of O’Brien and Kalychurn failed.

2. Under section 240 ZA of the Criminal Justice Act 2003, custody on remand for the further offence ordinarily counts as time served, but not where it coincides with custody on recall. The statutory scheme permits no double counting. Section 265 also prevents a sentence for the further offence from being consecutive to the existing sentence. Those provisions do not create an entitlement to a discounted sentence designed to neutralise their combined practical effect.

3. Following R v Kerrigan & Walker [2014] EWCA Crim 2348, a sentencing judge retains a residual discretion to reduce an otherwise appropriate sentence where the facts require correction of an injustice, including in an appropriate case of excessive delay. It is a fact-sensitive discretion, not a built-in formula requiring full mitigation of unavailable statutory credit.

4. The Article 6 reasonable-time inquiry has a high threshold. Unless elapsed time itself gives real cause for concern, further inquiry will rarely be needed. Its purpose is to prevent prolonged uncertainty about an accused’s fate, rather than to provide indirect credit for overlapping recall custody. Delay may nevertheless bear on the just sentence even without an Article 6 breach.

5. In Phillips’s case, the judge had already made a substantial six-month reduction for delay. That assessment disclosed no error of principle. Time spent on recall for an unrelated allegation of which Phillips had been acquitted was irrelevant to sentence for the present offences.

6. In O’Brien’s and Kalychurn’s cases, the delay to sentence was neither excessive nor contrary to Article 6. Sentencing all defendants together after the related proceedings against a co-accused was legitimate. There was no unjust disparity with a co-offender who had not been recalled, since the appellants’ less favourable position flowed from committing the new offence while on licence.

• Court of Appeal (Criminal Division): In [2015] EWCA Crim 427, dismissed all three sentence appeals; Phillips was granted leave to appeal.
• Crown Court at Kingston: On 18 August 2014, Judge Jones imposed eight years’ imprisonment on O’Brien and Kalychurn for conspiracy to commit aggravated burglary.
• Crown Court at Leicester: On 5 December 2014, Judge Hammond imposed six months’ imprisonment on Phillips for affray, with a concurrent sentence for criminal damage.