This guide is maintained as a current resource for July 2026 and covers only the laws of England and Wales. Information is for general guidance, not legal advice. Consult a qualified solicitor for advice specific to your situation.
Explore how custodial time is treated in criminal appeals in England and Wales. This guide explains how remand time and appeal custody count towards sentences, the role of loss of time orders under the Criminal Appeal Act 1968, and how courts credit time already served when appeals modify sentences.
When someone is convicted and sentenced in a criminal court, the period they have spent in custody - whether awaiting trial, sentencing, or while their appeal is pending - can significantly affect how much time they actually serve. In appeals in England and Wales, the way custody time is treated is a key legal and practical issue. This article explains the principles that apply, how courts account for custody during the appeal process, the concept of loss of time orders, and how remand time and appeal periods can impact the ultimate sentence.
Custody Time and Criminal Appeals
Custody time refers to periods spent in detention. This can include:
- Remand custody (before conviction or sentence),
- Custody during the appeal process, and
- Time served under sentence before appeal judgment.
Understanding how this time is counted or credited is important because it can affect when a person will be released and whether an appeal's outcome changes the calculation of time served.
In England and Wales, courts generally treat time spent in custody as part of the overall sentence, but there are exceptions and judicial discretion in specific circumstances.
Custody Time During Appeals: The General Rule
1. Time Serving as Part of the Sentence
In most cases, the period that an appellant spends in custody pending determination of their appeal is treated as part of the sentence they are required to serve. This means that time spent in prison while waiting for the appeal court to decide - whether after conviction or sentencing - is typically credited against the custodial sentence once the conviction or sentence is upheld.
This is consistent with how the courts interpret sentencing and appeal provisions: the Court of Appeal will normally calculate sentences from the date of original sentencing or conviction and count custody time already served towards this.
2. Judicial Discretion: Loss of Time Orders
Courts have discretionary power to order that some or all of the custody time spent pending appeal does not count towards the sentence. This power comes from section 29 of the Criminal Appeal Act 1968. Under this provision, either a single judge or the full Court of Appeal can make a loss of time order.
A loss of time order may be used where an appeal is clearly without merit, where the court considers the appeal was pursued without proper basis, or in other circumstances the court deems appropriate. The effect of such an order is that part or all of the appellant's custody time during the appeal will not be treated as time served for the purposes of the sentence.
In practice, this power acts as a deterrent against unmeritorious appeals. Courts have emphasised that while the default is to credit time spent in custody, they will not hesitate to disallow such credit when the appeal lacks substance or amounts to an abuse of process.
Remand Time Before Trial and Sentencing
3. Credit for Remand Custody
Before conviction or sentence, a defendant may be held on remand following a bail decision. Under section 240ZA of the Criminal Justice Act 2003, time spent on remand in custody for the same offence must generally be credited against the custodial sentence once imposed. This means that if a defendant has spent time in detention before sentencing, that period will reduce the overall period they must serve.
However, there are important nuances:
- Remand time only counts if the detention was remand by order of a court (not just police custody).
- For certain discretionary sentences like discretionary life sentences, judges must consider remand time but have some discretion in how they credit it.
4. Fresh Custody Time at Re‑sentencing or Appeal Outcomes
When an appeal leads to a modified sentence, the custody time already served may impact the new calculation of the sentence. For example, if a sentence is reduced on appeal, time served between the original sentencing and appeal judgment will typically be credited against the reduced term. Operational guidance from the courts confirms that any custodial time served up to the appeal decision is counted toward the new sentence.
This ensures that individuals are not penalised twice for time already spent in custody before or during appeal.
Practical Aspects for Appellants
5. Timing Matters
Custody time credit for remand and appeal custody is generally calculated from key dates:
- The date of remand in custody by order of the court,
- The date of sentencing, and
- The date of the appeal decision.
Accurate recording of these dates is crucial because they determine how much time counts toward the sentence. Delays, paperwork issues or mistakes in calculating custody periods can have significant effects.
6. What Appellants Should Know
- Automatic credit for remand custody: Time spent on remand for the offence for which the sentence is given is normally credited against the custodial term.
- Custody during appeal is counted unless ordered otherwise: The default is that time served during the appeal process is counted as part of the sentence.
- Loss of time orders are exceptional: Courts will apply their discretion where an appeal is without merit, potentially ordering that custody time during appeal does not count.
- Recalculation after successful appeal: If a sentence is varied on appeal, custody time already served (both remand and appeal custody) is usually applied to the new term.
Common Questions
Does all custody count toward the sentence?
Not always. Time on remand generally counts, but custody during appeal is only counted by default. A loss of time order can exclude it.
Can the court refuse to credit appeal custody?
Yes. If an appeal is found to be unmeritorious or pursued without good reason, the Court of Appeal can order that custody time during appeal does not count toward the sentence.
What if the appeal reduces the sentence?
Time served on remand and during the appeal will normally reduce the new sentence and can even result in immediate release if the time already served exceeds the recalculated term.
Key Takeaways
In England and Wales, time spent in custody - whether on remand before trial, after sentencing, or while awaiting appeal - is generally treated as part of the custodial sentence. Courts aim to ensure that individuals are not unjustly detained beyond their effective sentence. However, appeal courts have discretion to make loss of time orders that exclude time spent in custody during the appeal where the appeal is without merit. When appeals result in modified sentences, custody time already served is normally credited towards the revised term. These principles help balance fairness to appellants with the effective administration of justice.
