200603240/A2 (1), 200602373/A8 (2),200605525/A5 (3)
200604421/A6 (4), 200605634/A5 (5), 200605238/A6 (6)
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT NORTHAMPTON (1)
ON APPEAL FROM THE CROWN COURT AT SNARESBROOK(2)
HIS HONOUR JUDGE PARDOE QC
ON APPEAL FROM THE CROWN COURT AT MANCHESTER(3)
HIS HONOUR JUDGE ADRIAN SMITH
ON APPEAL FROM THE CROWN COURT AT INNER London (4)
HIS HONOUR JUDGE CAMPBELL
ON APPEAL FROM THE CROWN COURT AT SOUTHAMPTON(5)
HIS HONOUR JUDGE BOGGIS QC
ON APPEAL FROM THE CROWN COURT AT STAFFORD (6)
RECORDER P.S. SANGHERA
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE TREACY
THE HON. SIR MICHAEL WRIGHT
Miss M. Savvides for the Prosecution in Gordon (1)
Miss B. Campbell for the appellant D (2)
Taylor - non-counsel application (3)
Pusey - non-counsel application (4)
Shaukat - non-counsel application (5)
Mr Mark Ellison and Mr Adrian Darbishire (instructed by the Attorney General to assist the Court)
Hearing dates : 18th December 2006
Crown Copyright ©
President of the Queen's Bench Division:
Time spent on remand
"67(1) The length of any sentence of imprisonment imposed on an offender by a Court shall be treated as reduced by any relevant period, but where he was previously subject to a probation order, a community service order, an order for conditional discharge or a suspended sentence in respect of that offence, any such period falling before the order was made or suspended sentence passed shall be disregarded for the purposes of this section;
(1A) In subsection (1) above "relevant period" means-
(a) any period during which the offender was in police detention in connection with the offence for the sentence was passed; or
(b) any period during which he was in custody-
(i) by reason only of having been committed to custody by an order of a Court made in connection with any proceedings relating to that sentence or the offence for which it was passed or any proceedings from which those proceedings arose; or
(ii) by reason of his having been so committed and having been concurrently detained otherwise by an order of a Court."
(3) The commencement of the provisions …is of no effect in a case in which a court has imposed a sentence of imprisonment in respect of an offence committed before 4 April 2005 (whether or not it is also imposed a sentence of imprisonment in respect of any offence committed after that date)".
"240(1) This section applies where-
(a) a court sentences an offender to imprisonment for a term in respect of an offence committed after the commencement of this section,
(b) the offender has been remanded in custody (within the meaning given by section 242) in connection with the offence or a related offence, that is to say, any other offence the charge for which was founded on the same facts or evidence….
(3) Subject to subsection (4) the court must direct that the number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by him as part of the sentence…
242(2) References in sections 240 and 241 to an offender being remanded in custody are references to his being –
a) remanded in or committed in custody by order of a court,
b) remanded in or committed to local authority accommodation…
c) remanded, admitted or removed to hospital under section 35, 36, 38 or 48 of the Mental Health Act 1983."
"(4) Subsection (3) does not apply if and to the extent that –
(a) rules made by the Secretary of State so provide in the case of –
(i) a remand in custody which is wholly or partly concurrent with the sentence of imprisonment, or
(ii) sentences of imprisonment for consecutive terms or for terms which are wholly or partly concurrent, or
(b) it is in the opinion of the court just in all the circumstances not to give a direction under that subsection.
(5) Where the court gives a direction under subsection (3), it shall state in open court –
(a) the number of days for which the offender was remanded in custody, and
(b) the number of days in relation to which the direction is given….
(6) Where the court does not give a direction under subsection (3), or gives such a direction in relation to a number of days less than that for which the offender was remanded in custody, it shall state in open court –
(a) that its decision is in accordance with rules made under paragraph (a) of subsection (4), or
(b) that it is of the opinion mentioned in paragraph (b) of that subsection and what the circumstances are."
"to have been committed over a period of two or more days,…it shall be taken for the purposes of subsection (1) to have been committed on the last of those days"
In other words, in these circumstances the 2003 Act rather than the 1967 Act applies, and an express order is required.
"2. Section 240(3) of the 2003 Act does not apply in relation to a day for which an offender was remanded in custody –
(b) where the term of imprisonment referred to in subsection (1) of that section is ordered to be served consecutively on another term of imprisonment, if the length of that other term falls to be reduced … by virtue of section 67 of the Criminal Justice Act 1967 "
"covers the situation where an offender is sentenced to consecutive sentences in relation to an "old" offence (committed before 4 April 2005) and a "new" offence (committed on or after 4 April 2005) and has served remand on a particular day in relation to both offences. As this day will automatically be counted towards sentence by the Prison Service in relation to the "old" offence it is not necessary for the court to consider a direction in respect of that day for the "new" offence"
"…time spent in custody under recall pursuant to section 39 is not (taken into account) since it is service of the original sentence ."
"Section 240 (3) of the 2003 Act does not apply in relation to a day for which an offender was remanded in custody –
(a) if on that day he was serving a sentence of imprisonment (and it was not a day on which he was on licence under chapter 6 of part 12 of the 2003 Act or part 2 of the Criminal Justice Act 1991);…." (see rule 2)
The effect is explained in HO Circular 37 of 2005, in a passage which culminates:
"….it is not appropriate for remand days to be counted towards any subsequent sentence imposed in respect of the second offence where a period in custody is being served further to recall from release on licence in respect of the first offence".
(See now Drewett  EWCA Crim 1140.)
Court order to return to prison
"116. – (1) This section applies to a person if –
(a) he has been serving a determinate sentence of imprisonment which he began serving on or after 1st October 1992;
(b) he is released under Part II of the Criminal Justice Act 1991 (early release of prisoners);
(c) Before the date on which he would (but for his release) have served his sentence in full, he commits an offence punishable with imprisonment ("the new offence");
(d) whether before or after that date, he is convicted of the new offence.
(2) Subject to subsection (3) below, the court by or before which a person to whom this section applies is convicted of the new offence may, whether or not it passes any other sentence on him, order him to be returned to prison for the whole or any part of the period which
(a) begins with the date of the order; and
(b) is equal in length to the period between the date on which the new offence was committed and the date mentioned in subsection (1)(c) above."
"29. The coming into force of paragraph 116 of Schedule 32 to the 2003 Act and the repeal of section 6(4)(d), 116 and 117 of the Sentencing Act is of no effect in relation to a person in a case in which the sentence of imprisonment referred in section 116(1)(a) of the Powers of Criminal Courts (Sentencing) Act 2000 –
(a) is imposed in respect of an offence committed before 4th April 2005; or
(b) is for a term of less than twelve months.
30. The coming into force of the repeal of section 84 of the Sentencing Act is of no effect in a case in which the sentence of imprisonment referred to in that section was imposed in respect of an offence committed before 4th April 2005."
The references to the Sentencing Act are to the 2000 Act.
"A defendant who appears before the Court who is the subject of a return or recall to prison in respect of an offence which is committed before 4th April 2005 will still be treated as if he had been dealt with under powers conferred by the 2000 Act (PCC(S)A) and thus must be treated as if section 116 of that Act had not been repealed and further on the basis that s 84(PCC(S)A) had also not been repealed."
"As the offence was committed whilst the appellant was in custody serving a sentence, we have no power because of the terms of section 116 of the 2000 Act (PCC(S)A) to order that the appellant should serve the outstanding part of his last sentence ." [Harris [EWCA] Crim 1186.]
Consecutive sentences for released prisoners
"84(1) A court sentencing a person to a term of imprisonment shall not order or direct that the term shall commence on the expiry of any other sentence of imprisonment from which he has been released under part II of the Criminal Justice Act 1991 (early release of prisoners)."
The prohibition is clear. A sentence cannot be imposed to begin on the expiry of another sentence from which the prisoner has been released, if that "other sentence" was imposed in respect of an offence committed before 4th April 2005. However s 84 does not prevent a court from ordering a period of return under s 116 and indeed to impose a consecutive sentence for the new offence. This also applies to an administrative recall under s 39 of the 1991 Act. (Howell).
" Restrictions on consecutive sentences for released prisoners
265(1) A court sentencing a person to a term of imprisonment may not order or direct that the term is to commence on the expiry of any other sentence of imprisonment from which he has been released early under this Chapter."
Discretionary life sentences
"The effect of any direction which it would have given under s 240 of the Criminal Justice Act 2003 … (crediting periods of remand in custody) if it had sentenced him to a term of imprisonment."
Accordingly the statutory link between s 82A(3)(b) of the 2000 Act with the 2003 Act means that when fixing the appropriate determinate sentence, the Court should apply the regime under s 240 to time spent on remand.
Errors and omissions
ii) If the information provided subsequently turns out to be incorrect, the sentencing court can only correct the mistake within 28 days (or the extended period in section 155(2) of the 2000 Act), unless the judge's order has identified the period in question, but the order as drafted has simply miscalculated the number of days. In that case, the court record can be amended.
vi) If the period for which the direction has been given is wrong, and both parties agree, but more than 28 days have elapsed since the sentence was imposed, the application for leave to appeal should so state, in which event, on receipt of confirmation of that agreement ... the matter will be remitted by the Registrar direct to the Court for it to correct the mistake. ...
vii) There may well be cases where the judge fails to give a direction. It should be the responsibility of counsel to bring the matter to the attention of the judge. But where that has not occurred, the same procedural mechanism, as set out in (vi) above should be used in order to correct such a mistake."
"There is however no power in the Crown Court to vary or rescind a sentence or any other order after the expiry of that period (28 days) ... The learned judge had 28 days to vary the sentence he had passed by adding to it a monetary penalty, namely the forfeiture ... of upwards of £4,000. Had he done so within the statutory time limit, the forfeiture could not have been questioned. As it is, in my opinion, it cannot be defended." (Per Lord Salmon at p. 162.)
"... The action of the trial judge in this case would, as I think, have been entirely proper had it been done timeously. But it was not, and he was therefore without jurisdiction to make the forfeiture order when he purported to make it." (Per Lord Edmund-Davies at p. 167.)
"It is clear from these authorities and statutory provisions that the Crown Court still enjoys the common law jurisdiction vested in its predecessors to put off passing the whole of a sentence, or indeed part of a sentence, if the circumstances make it necessary. While accepting the proposition that to take two bites at the sentencing cherry is bad practice, there may be circumstances in which it may be very desirable, when all the material necessary to complete all elements of a sentencing problem is not immediately available, to deal with the substantive sentence at once and postpone what may have to be done in addition, rather than postpone the whole of the sentence till all of the material is to hand. ... This court thinks it would have been unnecessarily cruel to keep the appellant in the dark as to whether, and if so how long, the custodial sentence he was to receive, simply because the material necessary for dealing with 'totting up' ... was not immediately available. Although in the result it took longer than 28 days to obtain the material, the judge was entitled to make the further disqualification order some 7 weeks after imposing an appropriate prison sentence."
We are grateful to Dr Thomas for reminding us of Annesley principle.
R v Gordon
R v Taylor
R v D
R v Pusey
R v Shaukat
R v McManus