Prenga, R. v

A sentencing court retains an exceptional residual discretion to reduce an otherwise lawful sentence where this is required to achieve overall justice. The statutory scheme in the Criminal Justice Act 2003 ordinarily determines credit for time on remand and qualifying bail, so departure from it will be rare.

Time spent in custody on unrelated proceedings does not ordinarily justify an adjustment merely because those proceedings later end without a sentence. The court must assess whether the circumstances disclose a conspicuous injustice. A missed forensic step, incomplete information at sentence, or a wish to advance further mitigation will not usually justify reopening a lawful sentence.

The appellant pleaded guilty to conspiracy to supply class A drugs and received a sentence of 109 months’ imprisonment at Kingston Crown Court. Before sentence, he had been on conditional bail subject to a qualifying curfew. He was then remanded in custody under an Italian European Arrest Warrant, which was later withdrawn.

The prison authorities did not credit the extradition-remand period against the English sentence because the Italian matters were unrelated. The appellant sought permission, out of time, to appeal his sentence. He contended that justice required a reduction for that period and for two days spent in police custody on arrest.

The central issue was whether the Court of Appeal should exercise a residual discretion to adjust an otherwise lawful sentence outside the statutory credit scheme.

1. Permission was granted out of time, but the appeal was dismissed. The proper route for an alleged failure at sentencing to account for a period of custody was an appeal against sentence, rather than judicial review of the prison governor’s calculation. The appellant had therefore used the appropriate procedure, and the court granted the necessary extension.

2. A sentencing court has a residual power to reduce an otherwise lawful sentence where exceptional circumstances require this to achieve justice. Delay contrary to article 6 of the ECHR is a paradigm example, but it does not exhaust the circumstances in which the broader question of a just sentence may arise. The jurisdiction is exceptional and its threshold is high.

3. The statutory credit regime in the Criminal Justice Act 2003 is intended to be comprehensive. It fixes entitlement to credit for qualifying bail and remand, including the policy choice that unrelated remand does not ordinarily reduce the sentence in the current proceedings. Accordingly, cases in which a residual adjustment is needed will be rare.

4. No exceptional injustice was established. The extradition custody concerned unrelated Italian matters and could have generated credit in those proceedings. The appellant had not established why his conditional bail was not revoked when the European Arrest Warrant was executed, and the court lacked the extradition material needed to determine that issue. The later withdrawal of the warrant did not make the lawful English sentence unjust.

5. Finality also weighed against adjustment. A defendant has an adequate opportunity to advance mitigation at sentence. A later assertion that better information or representation might have produced further mitigation does not ordinarily permit a second attempt to reduce the sentence. The two days in police custody did not warrant an exceptional adjustment.

• Court of Appeal (Criminal Division): Granted an extension of time and permission to appeal, but dismissed the appeal against sentence.
• Kingston Crown Court: Sentenced the appellant on 30 July 2015 to 109 months’ imprisonment for conspiracy to supply class A drugs, with credit for 46 qualifying tagged days.