When an accused person is denied bail and they have to wait in custody until their matter is dealt with, this is often called pre-sentence custody. Accused persons can receive credit towards their sentence for the time they spent in custody. Usually (but not always), this is given on an enhanced basis meaning an accused person gets more credit towards their sentence than days they actually were in custody. Typically, it is 1.5 days of credit per 1 day spent in custody. So, if you were held in custody for 30 days before you were sentenced, you would have 45 days of pre-sentence custody put towards whatever sentence you received.

Sometimes, however, an accused person can receive a credit of more than 1.5 days per 1 day spent in custody. This is called Duncan credit, named after the case R. v Duncan. This can be achieved by bringing what is called a Duncan Application, which is an application outlining the conditions faced by an accused person in custody, and the impact this had on the accused person. This is then argued in front of the sentencing judge, and makes the pitch for why the conditions faced by an accused were “particularly harsh” and should result in an accused person receiving a credit of more than 1.5 days to 1. Harsh conditions may include things like 3 or more people to a cell, or lately, strict COVID precautions such as lockdowns where people in custody are unable to leave their cell for most of the day.

Many Duncan applications have been successfully argued lately due to the impact of COVID-19 on in-custody accused persons.

Another helpful case is R v Hearns. It established that COVID, and the impact it will have on accused persons serving time after being sentenced, can also be taken into consideration when sentencing someone convicted of a crime. While Hearns does not ‘give credit’ to an accused person the way Duncan does, it may result in a shorter sentence being imposed once the Judge considers the impact COVID-19 will have on a person in custody.