R v Victoria Sked & Ors

A sentencing reduction for delay since apprehension depends on the particular facts. Ordinary investigative delay will not usually warrant a reduction. Where delay is unreasonable, the court should assess its detrimental effect, the offender’s responsibility for it, the timing of any guilty plea, rehabilitation, and any further offending. A reduction for serious offending will generally be modest, although substantial rehabilitation during a long delay may justify a greater reduction.

Time spent in custody following recall does not automatically count towards a sentence for a new offence where the offender was also detained in connection with another matter. The sentencing court nevertheless retains a measured discretion to reduce the new sentence where justice requires it. That discretion must not defeat Parliament’s policy against automatic credit.

Six offenders pleaded guilty to offences arising from a conspiracy to convey drugs and other prohibited articles into HM Prison Lindholme. The conspiracy was uncovered when Victoria Sked, a prison officer, was searched on entering the prison in August 2018. Sentences were imposed at Sheffield Crown Court on 6 December 2024, after substantial delay.

The Solicitor General sought leave to refer the sentences of Sked, Simmie McGinley, Robert Williams, Darren Morgan, Adam Kirk and Ayesha Martin as unduly lenient. Jack McGlen’s application for leave to appeal against his four-year sentence was referred by the Registrar. The central issues were the proper allowance for delay and, for McGinley and Williams, time spent in custody after recall to prison.

1. The Attorney General’s reference was allowed in part. The court increased McGinley’s sentence from 18 to 30 months, Williams’s from 22 to 40 months, and Morgan’s overall sentence from four years and 10 months to six years. It refused leave to refer the sentences of Sked, Kirk and Martin, and refused McGlen leave to appeal.

2. Delay since apprehension is a relevant sentencing consideration where it is unreasonable, not the offender’s fault, and has detrimentally affected the offender. The assessment is fact-specific. Normal delay inherent in investigation will rarely justify a reduction. Following R v Timpson [2023] EWCA Crim 453, a reduction approaching 25% will ordinarily be unlikely for serious offending, although substantial rehabilitation during delay may materially affect the proportional sentence.

3. Under section 240 ZA(4) of the Criminal Justice Act 2003, recalled custody does not automatically count towards a new sentence when the offender was also detained in connection with another matter. As explained in R v Kerrigan [2014] EWCA Crim 2348, the court retains a discretionary power to reduce a sentence where justice requires it. The exercise must be measured, with particular regard to why the recall occurred and whether the recalled custody was in substance attributable to the new offences. It must not undermine Parliament’s decision against automatic credit.

4. The court also gave guidance that the normal approach is to determine the sentence after trial while taking account of aggravation and mitigation, including delay where applicable, and then apply guilty-plea credit. It adopted the judge’s contrary sequencing only because the reference had been argued on that basis, and did not endorse it for future cases.

5. Sked, Kirk and Martin had significant mitigation and rehabilitation, together with delay for which they were not responsible; their sentences were not unduly lenient. McGinley’s and Williams’s reductions for recall and delay were excessive on their circumstances. Morgan had continued offending during the delay and had no basis for a significant delay reduction. McGlen’s increase from the guideline starting point was not arguably manifestly excessive.

• Court of Appeal (Criminal Division). Under section 36 of the Criminal Justice Act 1988, the court increased the sentences of McGinley, Williams and Morgan, refused the other applications to refer, and refused McGlen leave to appeal.

• Crown Court at Sheffield. Her Honour Judge Megan Rhys sentenced the offenders on 6 December 2024 for offences connected with the conveyance of prohibited articles into prison.