R v Adebayo Kekere-Ekun

Credit for custody abroad while awaiting extradition is governed by what is just in all the circumstances. Under the current regime in the Criminal Justice Act 2003, the court must justify refusing credit, rather than justify granting it.

For a mandatory life sentence, the minimum term must reflect the credit which would have been directed for a fixed-term sentence. Deliberate flight and evasion remain relevant, but do not automatically preclude credit. Their weight may be reduced where they have already been reflected in the minimum term and the offender co-operates with extradition after arrest.

The appellant pleaded guilty to murder in 2015. He had left the United Kingdom knowing that he was wanted by police and was arrested in Nigeria in 2015, some 14 years after the offence. He spent 39 days in Nigerian custody awaiting extradition.

The Crown Court at Luton imposed life imprisonment with a minimum term of 10 years. It credited his United Kingdom custody but did not address the Nigerian custody. The appellant later sought leave to appeal sentence. The Crown accepted that the issue had been overlooked.

The issue was whether all or part of the 39 days in Nigerian custody should count towards the minimum term.

1. Appeal allowed. The sentence was varied so that the 39 days spent in Nigerian custody awaiting extradition, as well as custody in the United Kingdom, counted towards the appellant’s minimum term.
2. For fixed-term prisoners, sections 240 and 243 of the Criminal Justice Act 2003 govern credit for time spent abroad awaiting extradition. Section 240(4) makes credit the statutory starting point: the court must be satisfied that it is just in all the circumstances not to give the appropriate direction.
3. Although those provisions do not expressly govern mandatory life sentences, section 269(3) requires the minimum term to take account of the direction that would have been made under section 240 if the sentence had been fixed. The same result followed under the applicable transitional provisions.
4. The court explained the contrast with R v Noye [2013] EWCA Crim 510, which concerned the former discretionary regime. Flight, evasion and resistance to extradition may be material to the justice assessment. They do not mean that foreign custody will necessarily be denied credit.
5. Here, the appellant had fled and evaded justice, but those matters had already been reflected in the original minimum-term calculation. Once arrested, he did not contest extradition and made early admissions. It was therefore in the interests of justice to credit the full 39 days. The term left to serve before eligibility for release was 9 years and 163 days.

• Court of Appeal (Criminal Division) — Allowed the appeal against sentence and directed that 39 days’ Nigerian custody awaiting extradition be credited: [2024] EWCA Crim 167.
• Crown Court at Luton — On 4 September 2015, imposed life imprisonment with a minimum term of 10 years, crediting United Kingdom custody but not the Nigerian custody.