This case concerns an invitation to the Court to exercise the power on the part of the Court to adjust a sentence which is otherwise lawful in order to ensure that it is overall proportionate and achieves “justice”

On the facts the appellant was on conditional bail, subject to a curfew, pending trial. In the normal course, if convicted, he would have been accorded credit against the sentence for time spent on such qualifying bail. Whilst on bail he was however the subject of a European Arrest Warrant (“EAW”) issued by Italy. This led to his conditional bail being revoked and the appellant was remanded in custody pending extradition. Later the EAW was withdrawn by Italy. He then fell to be sentenced for the offence he was charged with in this jurisdiction and this led to an extended sentence of imprisonment. The Judge indicated that the qualifying period whilst on bail would count against sentence. When, later, the applicant sought to clarify his release date with the Prison Governor it became clear that no credit would be given to him to take account of the period on remand awaiting extradition.

It is argued that he should be accorded some reduction in sentence to take account of the fact that but for the EAW he would have remained on qualifying bail and, in due course, received credit to be set against the final sentence. He says that he should now have his sentence adjusted to take account of days spent on remand. To fail to recognise this would lead to a real injustice.

A secondary issue arises in that the appellant also argues that he should be accorded 2 days credit for the time he spent in police custody when first arrested.

The appellant seeks permission to appeal out of time to argue the point that he should be entitled to an adjustment to his sentence for the period spent on remand awaiting extradition. The application for permission had been referred by the Single Judge to the Full Court for consideration. For reasons we set out below we grant permission to appeal.

It is necessary to set out the facts in some detail.

On the 20^th March 2014 the appellant was arrested in connection with an investigation into a conspiracy to supply class A drugs (cocaine). He was remanded in police custody until 22^nd March 2014 when he appeared, for the first time, at Wimbledon Magistrate’s Court. He was sent to the Crown Court in custody. On the 4^th April 2014 a preliminary hearing was held at Kingston Crown Court. The appellant was remanded back into custody.

On the 29^th August 2014 conditional bail was granted (with no opposition to the application by the Crown). The appellant was subject to a curfew which, ordinarily, would give rise to credit against any sentence ultimately passed.

Upon a date which is not set out in the record before this Court, Italy issued an EAW in relation to the applicant. This was communicated to the National Crime Agency (“NCA”).

The appellant was arrested on 27^th November 2014. He was remanded in custody at HMP Wandsworth in connection with the EAW. No application was made to revoke the conditional bail which, at least in theory, remained outstanding. The effect of this was that, because the remand in custody was pursuant the EAW, the appellant could not claim to offset this period of custody against any sentence that he was later given in relation to the criminal proceedings in this jurisdiction. Mr Prenga could, however, claim credit for time spent in custody in England & Wales against any sentence he might in due course be given in Italy.

The appellant was remanded in custody until 20^th April 2015 when he entered a plea of guilty. Sentencing was adjourned until 30 July 2015.

On 29^th June 2015 the EAW was withdrawn by Italy.

On 6^th July 2015 Westminster Magistrates’ Court discharged the extradition. We are told that the appellant did not attend this hearing, nor did any legal representative on his behalf. We do not have the documents relating to that hearing before us.

On the 30^th July 2015 the appellant was sentenced. Counsel for the Crown and the appellant have explained to us that, inexplicably, on this day neither they nor the Court was aware that the EAW had been discharged.

In his sentencing remarks the judge observed that the appellant controlled and organised a sophisticated network of vehicles and addresses across London to facilitate the large-scale supply of controlled drugs. He organised and supervised the delivery of drugs whilst employing sophisticated measures to distance himself from the activity. He was sentenced under category 1, significant role. The sentencing range was 9-12 years with a starting point of 10 years imprisonment. He had pleaded guilty on the 20^th April 2015, being the first day of the trial. This was very late. It was argued that he should be entitled to a 25% reduction in sentence. The judge disagreed granting a reduction of 17% which he regarded as “generous”. The sentence imposed was 132 months imprisonment. Allowing for the 17% credit due to the late plea and other aggravating and mitigating factors that sentence was adjusted to a sentence to 109 months.

The judge then said this: “I understand that there were some relevant tagged days, and the total tagged days was I’m told 91 days, therefore on my calculation there should be 46 days to count. If that’s wrong it can be adjusted administratively.” There is no dispute but that the 91 days referred to excludes the period on remand pursuant to the EAW between November 2014 and February 2015.

Events post-sentence

It appears that the appellant has queried with the prison Governor the correct release date. A letter was sent to him on 21^st December 2015 setting out the relevant dates. It is apparent that calculation that the Governor was working from to determine the release date did not take account of any time spent on remand pursuant the EAW.

On 25^th January 2016 solicitors for the appellant wrote to the Governor at HMP Highpoint where he was serving his sentence requesting confirmation that the remand time between 27^th November 2014 and 19^th February 2015 be deducted from his sentence and that her previous decision be re-considered. The letter stated, in relevant part:

There is no evidence of any reply to this letter. We are told however (by the Crown, and the appellant agrees) that the Prison Service persists in giving credit only for the periods (a) 22^nd March - 29^th August 2014 and (b) 20^th February 2015 - 30^th July 2015 ie not for the period spent on remand under the EAW.

On 13^th July 2017 the appellants solicitors wrote to the CACD office contending that had the lawyers been aware, as of the date of sentence (see paragraph [15] above) that the time in custody would not count towards sentence then counsel “... would have utilised this point in his mitigation, so that the trial judge could consider reducing the sentence he had in mind by a further approximately 6 months, taking into account the additional 3 months which the applicant served in connection with an unrelated matter, which had been withdrawn by the Italian authorities. ”

The appellant's arguments

The appellant, initially in person, has applied to this court for permission to appeal out of time on the basis that days spent in custody at the police station and days spent on remand under the EAW should be taken into consideration. In particular, he has argued:

That he was arrested on the 20^th March 2014 and held for 2 days in police custody and these two days should count towards sentence;

that he should have received credit for the time spent on remand under the EAW between 27^th November 2014 and the 19^th February 2015.

Pursuant to an order of the single judge counsel was instructed to represent the appellant in the present case. In short but helpful written submissions to this court Mr Graffius, counsel instructed and who appeared in the earlier proceedings, concedes that in relation to the time spent on remand pursuant to the EAW under section 240ZA(3) CJA 2003 credit can be given only in relation to the same offence or a related offence. It is also accepted that the matters behind the EAW are not the same as or related to the offence which is the subject of these proceedings.

Instead the thrust of his written and oral submission is based upon the existence of a residual discretion on the part of the court to adjust otherwise lawful sentences “to do justice on the particular facts” of a case. Mr Graffius’s submission was short and concise. On the facts it is just that the appellant be granted credit for the time spent on remand pursuant to the EAW. This is not a case where he was recalled on licence or claimed there had been excessive delay before sentence. He is no longer being pursued in Italy, yet he served time on remand in circumstances where but for the EAW he would have been on qualifying curfew. But, now, he gets no credit against sentence in Italy and no credit against sentence in this jurisdiction. With the benefit of hindsight an application to revoke the applicant’s conditional bail should have been made immediately upon his arrest pursuant to the EAW in November 2014. Had this occurred then, just as it was in February 2015, the Judge would have been likely to have granted the application and the appellant’s position would have been protected. If there is blame it lies at the door of the legal representatives who failed to identify this issue.

No criticism can be levelled at the Judge before whom no application was ever made.

The Crown’s arguments

The Crown accepts that in principle the court has a residual power to make allowances for time spent on remand if necessary to correct an injustice. It is said however, that this is a discretion which no court is obliged to exercise and the mere fact that a defendant is on remand on another unrelated matter for which a person may subsequently be acquitted does not attract an automatic discount. It is acknowledged that the existence of this discretion, or the possible application of that discretion to the facts of the present case, did not feature in the Crown’s oral opening of the facts or in the judges sentencing remarks. It is observed that the total amount of time in issue in the present case, being less than 3 months, does not necessarily give rise to a substantial risk of injustice in the context of a total sentence of 109 months.

The Crown contend that the two-day period spent in police custody was ineligible for police credit pursuant to section 242(2)(a) Criminal Justice Act 2003 (“CJA 2003”) which stipulates that remand in custody for the purpose of counting as time served (cf section 240ZA CJA 2003) refers to being remanded “by an order of the court”. The time spent in police custody was not by an order of the court and therefore credit was unavailable. The spending of time in police custody is routine and necessary to enable the police to conduct their usual enquiries. There is no injustice which needs to be remedied by this limited curtailment of liberty.

In relation to time spent on remand pursuant to the EAW under section 240ZA CJA 2003 periods of time spent on remand in custody can count towards the ultimate sentence provided they are spent in connection with the offence or related offence. It is not however suggested that the EWA was here related to the offences for which the applicant was sentenced in the present case or related case. Hence the time spent awaiting extradition is irrelevant. Mr Heptonstall who appeared on the appeal for the Crown, did not, however, argue that it would have been improper for the judge below, had an application been made to him, to have taken the period spent on remand awaiting extradition into account in some way.

Discussion and analysis: The application for permission to apply out of time

First, we consider whether it is appropriate to grant the extension of time in order to permit the argument to be considered. This matter comes before this court by way of an application to extend time for permission to appeal. It does not arise before the court by way of an application for judicial review of a decision of the prison Governor to refuse to accord credit to the applicant for time spent on remand pursuant to the EAW, when fixing the putative release date.

In R (on the application of Desmond Shields- McKinley) v Secretary of State for Justice [2017] EWHC 658 (Admin) (“Shields- McKinley”) Mr Justice Holroyde (as he then was) held that it was inappropriate for an applicant to seek judicial review of a decision of Her Majesty’s Prison Service (“HMPS”) in calculating a release date and in refusing to take into account periods for which the applicant claims credit. In that case the claimant was extradited from Germany to face charges in this jurisdiction. He was subsequently convicted and sentenced to an extended sentence of imprisonment. In fixing the date of release HMPS gave credit for the period of time spent on remand in England and Wales but not for the approximately 50 days spent whilst detained in Germany awaiting extradition. Pursuant to section 243(2) CJA 2003 there is a statutory requirement on a court to state in open court the number of days for which an extradited was detained abroad. The claimant had an entitlement to credit in relation to the days so specified. In the absence of such a statement a prison governor, when calculating the release date, has no definitive statement of the number of days for which credit is required to be given and there is scope for uncertainty and disagreement. On the facts of that case neither the prosecution nor defence had put in front of the Judge the number of days served in Germany. The Judge therefore, in error, failed to specify the number of days for which credit should be given. However, the applicant had not sought to remedy this defect by seeking the permission to apply out of time to the Court of Appeal he had, instead, sought judicial review of the decision of HMPS.

In these circumstances Holroyde J held that HMPS had acted lawfully, in relying upon the sentencing decision of the judge. To challenge the decision of the prison governor "...confuses an alleged calculation error by the prison governor for the failure by the Crown Court to specify the Germany days when pronouncing the sentence in open court. That failure by the Crown Court was regrettable but was not a "gross and obvious error” in the sentencing process because it does not appear that any submissions had been made inviting the recorder to specify the Germany days, and it appears that he therefore sentenced in ignorance of the fact that the claimant was entitled to credit for the period during which he had been detained during which he had been detained pending his extraction.” (ibid paragraph [80]). The Judge also held that since no days had been specified under section 243(2) CJA 2003 there was no error on the part of the prison governor and no lawful basis upon which he could have gone behind the order of the Crown Court. It would have been “ constitutionally improper for either the prison governor or a member of the Crown Court office staff to re-write the sentence which had been pronounced, however clear it may have seemed to be that the Recorder had fallen into error" (ibid paragraph [81]).

The judge was of the clear view that commencing judicial review of a supposedly erroneously administrative act was an inappropriate attempt to circumvent the proper system of appeal against sentence. In coming to this conclusion, the Judge had well in mind the submission that in denying relief an injustice might be perpetrated to the appellant (ibid paragraph [82]). The way which such an injustice should have been avoided was for the claimant to seek a remedy by way of the slip rule or by way of an application to the Court of Appeal Criminal Division for an extension of time to make an application for leave to appeal against sentence. As the judge observed (ibid paragraph [82]): “even at a late stage, he could have applied for a very long extension of time if he had good grounds for doing so even taking into account the delay in obtaining precise dates as to the period in custody in Germany that appeal process could have been initiated in good time for the date on which the claimant contends he should have been released. On an appeal to the CACD, the focus would have been on the omission of the court (contributed to by all the lawyers in the case) to specify the relevant number of days in accordance with section 243.”

In the present case the appellant has followed the route described by Mr Justice Holroyde in Shields-McKinley. The matter comes before this court long before the first possible date of release. The focus of attention now lies in determining to what extent if at all the sentence should be adjusted to take account of the time spent on remand under the EAW, if the appellant has “good grounds ”,

It is important to point out that the judge in that case did not say that every application that came before the CACD, where there was a dispute about the amount of time to be taken into account, would necessarily be granted leave.

In this case we recognise that the Single Judge referred the application and ordered representation. We bear in mind the guidance given by the High Court in Shields- Mckinley (ibid). In the circumstances of this case we are persuaded that we should grant the necessary extension of time and give permission to appeal.

The exercise of discretion: Where does justice lie?

We turn now to consider the merits of the application for permission. There are two main issues. First, as to the extent to which there is a discretion to take into account time spent on qualifying bail or on remand outside of the circumstances where credit is accorded as set out in the CJA 2003. Second, as to the application of such discretion as exists to the facts of this case.

We start by considering the nature and extent of the discretion to adjust otherwise lawful sentences where required to achieve justice. It is, in this regard, well established that a sentencing judge may reduce the sentence that would otherwise be imposed to achieve justice and to reflect exceptional factors. The paradigm illustration flows out of the requirement in Article 6 ECHR that proceedings must be concluded within a reasonable time. Where proceedings are unduly delayed that delay may count as a mitigating factor in appropriate circumstances. The threshold is necessarily a high one.

In Dyer v Watson; K v HM Advocate [2004] 1 AC 379 Lord Bingham of Cornhill observed that in any case in which it was contended that Article 6 was violated by virtue of delay the first step was to consider the period of time which had, in fact, elapsed. Unless that period gave grounds for real concern it was almost certainly unnecessary to go further “... since the convention is directed not to departures from the ideal but to infringements of basic human rights.” The threshold for proving a breach of the reasonable time requirement was a high one “not easily crossed” (cf ibid paragraphs [52] - [55]).

In Mills v HM Advocate [2004] 1 AC 441 Lord Hope (ibid paragraph [54]) recognised that delay could in an appropriate case justify an adjustment to sentence. One possible rationale for this is the anxiety experienced by a defendant, resulting from the abnormal prolongation of proceedings. Another possible explanation might be that a defendant’s life has changed during the period of delay such that the person who stands to be sentenced is, in terms of character, not the person who committed the offence.

In Attorney Generals Reference No 79 of 2009 [2010] EWCA Crim 338 it was held (per Lord Justice Hughes VP at paragraph [19]) that delay: “... is of relevance if not to a formal assessment of Article 6 then undoubtedly to the broader question of what a just sentence is when eventually and belatedly a conviction occurs.” The Judge, nonetheless, emphasised that applications for reductions in sentence would be “unusual”. The authorities relating to delay and Article 6 demonstrate that unnecessary delay can amount to mitigation resulting in reduction of sentence but, also, that questions of delay are instances of “... the broader question of what a just sentence is”. It follows delay, whilst perhaps being a paradigm example, is not exhaustive of the categories of case in which a sentence might be mitigated in order to ensure overall justice.

In R v Kerrigan [2014] EWCA Crim 2348 the Court of Appeal was required to consider broad questions of justice in the context of custodial sentences ordered to be run consecutively to existing sentences. In paragraph [40] of the judgment the Court set out seven principles which might apply where a court was imposing sentences for different offences and where they might apply concurrently or consecutively leading to potentially arbitrary results. For present purposes the seventh principle is relevant and was formulated in the following way: “a judge retains the discretion to do justice on the particular facts of a case, for example in the case of excessive delay, and may therefore reduce an otherwise appropriate sentence accordingly.”

Various illustrations have been placed before this court in which the court has, apparently, applied this over-arching test of justice. In R v Marshall [2016] 1 Cr. App. R.(S) 45 at paragraphs [38] - [40] the Court considered the situation where an offender was subject to conditions but had failed to comply with those conditions through no fault of his own. In that case monitoring equipment (which should have been operative as a condition of bail) had been removed due to an administrative error. In the circumstances the court decided to accord the credit that would have been available had the full conditions of bail been adhered to.

In Al Daour [2011] EWCA Crim 2392 the Court had to consider whether discretion should be exercised in relation to time spent in police detention. The court accepted that it was the intention of Parliament that such time would not ordinarily be included. However, it was said that this was no indication that the Court could not adjust a sentence to take account of time spent in police custody where it was necessary to do so in the interest of justice. This would be particularly the case where there had been an extended time spent in police detention. On the facts of that case the appellant had spent 12 days in police custody. The court declined to interfere.

We turn next to our conclusions in relation to the facts of the present case. In our judgment this is not a case where it is appropriate for the Court to modify the sentence to ensure justice.

First, the discretion to modify a sentence, which is otherwise lawful is, on the basis of case law, an exceptional jurisdiction. This is because the rules laid down in the CJA 2003 for the according of credit against sentence for periods spent on remand or on qualifying bail are intended to lay down a comprehensive scheme governing the issue. A defendant’s entitlement to “credit” is thus fixed by statute. Parliament has made policy choices in approving this regime, for instance as to the amount of credit for time spent on qualifying curfew (50% of the actual days). Parliament has also made clear that time spent on remand in cases unrelated to the case under consideration should not prima facie warrant any adjustment to the sentence. The cases where the statutory regime does not ensure justice should therefore be rare.

Second, the situation arising here is by no means exceptional. It is not uncommon for two parallel or overlapping sets of proceedings to be brought against an individual for two different offences. It is not unusual for a defendant to be on remand in relation to one, serious, charge in circumstance where (otherwise) he would have been on qualifying curfew in relation to some other, less serious, charge. Where the most serious charge is discontinued, credit is not normally given in relation to sentence on the second charge.

Third, the time spent on remand pending extradition between November 2014 and February 2015 was for matters which are unrelated to the present proceedings. During that period the appellant was generating some credit which he could claim to set-off against any sentence imposed in Italy. There is a lack of clarity about the reasons why the appellant did not seek to have his bail revoked at that point in time. The Crown say that the appellant was taking a vigorous and robust approach to oppose extradition. This Court is aware that a considerable amount of time can be spent in exhausting legal procedures in this jurisdiction in extradition cases. It is not impossible that the time spent on remand in this jurisdiction could ultimately be relevant to whether an extradition is ordered. Mr Graffius, for the appellant, argues that there was no stratagem to “game” the system in November 2014. He argues that, if anything, this was simply an error on the part of legal representatives in failing to be alert to the point. But we have to consider whether it is just to allow what might be a forensic choice or, otherwise a legal error, to amount to such conspicuous injustice that we should modify an otherwise lawful sentence where there is no error on the part of the Judge. We conclude that it is not. At the time there was no disadvantage to the appellant since he was building up credit to use in the extradition process or against a sentence in Italy. It was only when, seemingly unexpectedly, the EAW was withdrawn that any risk of injustice arose. It is said that the legal representatives were unaware at the time of sentence that the EAW had been withdrawn but we find this extremely hard to fathom. Even if the legal representatives were ignorant of the fact, the appellant himself must have been aware. We are, ultimately, placed in the real difficulty in relation to these arguments that we have not been shown any of the documents in the extradition proceedings or had privilege waived so that we can determine exactly what did or did not happen.

Fourth, standing back, all processes, including criminal sentencing processes, must have finality attached to them. We do not consider that every time a legal representative argues that had he/she been better informed different arguments would have been advanced during mitigation and the judge would have (arguably) passed a different sentence, an injustice is perpetrated. Defendants are given an ample chance to put forward their best cases by way of mitigation. The system does not, ordinarily, allow a second bite at the cherry. We do not therefore consider that the present case meets the test of exceptionality

Conclusion

For these reasons we allow an extension of time in which to seek permission, we grant permission, but we dismiss the appeal.