England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		4 February 2010

1. THE VICE PRESIDENT: We have heard these two applications together. Each is an application for a considerable extension of time and for leave to appeal if that extension be granted. Each application arises out of omission at the time of sentence to consider the provisions of section 240A of the Criminal Justice Act 2003 which provides for credit to be given against sentence for periods of remand on bail when subject to curfew and tagging conditions.
2. Section 240A was inserted in the 2003 Act by section 21 of the Criminal Justice and Immigration Act 2008. It was introduced for good and intelligible reasons, that is to say to help free up spaces in this country's overcrowded prisons by encouraging the imposition in appropriate cases of curfew conditions with electronic tagging attached to bail when otherwise a remand in custody might have been ordered.
3. Sadly, like many other over-complicated provisions relating to the sentencing of offenders, the manner in which the legislation is framed has the unintended consequence of generating frequent uncertainty and sometimes confusion which can lead to purely technical errors being made by sentencing courts and after that to quite significant numbers of wholly unnecessary appeals to this court. All this costs the taxpayer money which ought to be spent on something more useful.
4. The rule under section 240A is, we hope and believe, now generally well-known. We do not think it is necessary to rehearse the provisions which achieve its effect. For reference they are set out with crystal clarity by Hooper LJ in Monaghan and others [2009] EWCA Crim 269 and it is to be observed that setting them out takes a number of pages and involves three Acts and a Statutory Instrument. The net effect is that the court is required to make when passing sentence a specific order as to the number of days for which credit is to be given. That number is one-half of the days on which the defendant was subject to a court order for bail containing a condition imposing a curfew for at least nine hours per day and requiring electronic tagging. The first day of such conditions is counted, however long the curfew lasted that day; the last day is not. If the process of halving the number produces a half, that half number is rounded up. The rule only applies to bail conditions imposed after the commencement of section 240A which was 3rd November 2008.
5. It was no doubt thought to be simple to have the necessary information always before the sentencing court. However, as this court observed in R v Nnaji and Johnson [2009] EWCA Crim 468, in relation to the similar provisions contained in section 240 in relation to credit for remand in custody, real life is not like that. There have been considerable efforts made by the Court Service to institute procedures which are designed to ensure that the right information is always before the court. Sadly, it sometimes is not. We confess that we are not particularly surprised, although efforts must be redoubled.
6. What this court said about section 240 in Nnaji applies in very similar manner to section 240A:

"We appreciate that every effort has been made to try and reduce errors in making the correct calculation at the time of the sentence, but experience has shown that there are greater practical difficulties in eliminating errors than seems to have been appreciated when the legislation was enacted and brought into force. It may seem straightforward to ascertain the number of days, but experience shows that it is frequently not so. Defendants often offend more than once and may be on remand in relation to one set of proceedings but not another. Others, like Johnson in this case, move in and out of remand. In the case of yet more, the position is confused by absconding and its consequences. The addition of a curfew calculation will plainly add to the danger of administrative uncertainty as to how many days are to be counted. As these cases show, any error may often not be picked up until well after the elapse of even the 56 days now allowed under section 155 of the Powers of Criminal Courts (Sentencing) Act. As we have endeavoured to set out, needless expenditure is incurred for no apparent gain."

We would add to that observation only this. This particular calculation is not presented to the sentencing court as the sole topic for its consideration. Far from it. It is very much a subsidiary consideration. The real issue on sentencing is: what is the appropriate punishment for the offence or offences committed by the particular person who committed it? Consideration of the number of days to be credited is but another in a long list of purely technical hurdles which any court now has to surmount before it can get on to that important question. Others include, but are by no means limited to, the following. Frequent wholesale changes in the sentencing regime resulting in a bewildering array of commencement dates for statutes which govern either the offence or the regime. There are frequently altered maximum penalties, often varying according to the date of commission of offences of identical statutory form. There are widely differing penalties according to the age of the defendant. There are ever more detailed conditions attaching to the imposition of different forms of penalty. Whilst efforts must be made to avoid the omissions which have occurred in these two cases and many others, the omissions are to us unsurprising in the face of the hurdles which are placed in the way of courts trying to sentence people properly.

7. Irvine committed three unpleasant bullying robberies at night in the streets in November 2008. After arrest he was granted bail by the magistrates on 1st December 2008. As it turns out that was without the tagging condition. After plea of guilty he was sentenced on 24th April 2009 to two years' detention in a young offender institution. No one appreciated at that hearing that he might have been subject to tagging. That did not occur to anyone until October. The result was an application lodged in this court for leave to appeal in November 2009 which sought no less than six months extension of time. By then the trail was cold. Enquiries of the courts and the tagging contractors yielded contradictory answers. The contractors appear to have had records indicating that he had been subject to tagging from 31st March 2009 to 23rd July 2009. The latter date cannot have been correct because it was three months after he was sent to prison. Eventually, it has now been determined that the true position is that there was a curfew from 1st December 2008 (initially without tagging), but from 31st March 2009 there was added tagging to the curfew because there had been a breach of bail.
8. To discover this simple fact has involved four different bodies, all paid for by the taxpayer: the solicitors who acted for the defendant, the Crown Prosecution Service, the contractors and this Court's office. There has been correspondence back and forth between virtually every possible combination of those four bodies. In the meantime, because there appeared to be a dispute, a representation order for the instruction of Mr Evans (counsel for the applicant) was necessary and, sensibly, the Crown Prosecution Service has instructed Mr Ellis to be here as well. Every single one of those steps has had to be paid for by the taxpayer. The net result after the expenditure of at least several hundred pounds, and probably a four figure sum, is that Irving is now known to have been on tagged bailed for 24 days, so that the maximum difference which that fact can make to his two year sentence is 12 days.
9. Squires committed an offence of wounding with intent to do grievous bodily harm on 30th September 2008. After arrest he was before the magistrates first on 4th October 2008. He arrived at the Crown Court on bail. In due course he was convicted after trial on 23rd March 2009 and remanded in custody pending sentence. On 7th May 2009 he was sentenced to five years' imprisonment. The sentencing court knew that he had been in custody since the end of the trial for a period of 51 days and it correctly made an order under section 240 directing that that period should count towards his sentence. What the sentencing court did not know was (a) that he had also been in custody right back at the beginning for about a fortnight from 4th to 21st October, nor (b) that thereafter his bail had had attached to it a curfew and tagging condition. Neither of those facts were appreciated until October and the result is an application to this court for an extension of time of five months or thereabouts. Fortunately the trail was not quite so cold in this case and the efforts of all involved has resolved the position but again not without enquiry at public expense. In his case it is now agreed that if the correct facts had been before the sentencing court there should have been credit for 75 days in custody rather than 51 plus half of 140 days tagged curfew, thus making 75 plus 70, equals 145 days in all. In this case it was possible to avoid the instruction of counsel and the case is listed, as this court will sometimes do, for consideration of the application on agreed facts and without attendance.
10. These are the two of numerous cases of this kind which occupy the time of this court quite unnecessarily. The principal expense is not judicial time; it is considerable administrative time. The staffing of this Court's office is limited and fixed. The court is overloaded and the result is that other meritorious cases are pushed back in the queue. That is especially so where, as often happens, the error is appreciated only when the prisoner's release on licence draws near and there is then a request for urgent attention to be given to the case.
11. Quite apart from the expense and time-wasting which this involves, these cases must also leave prisoners in a state of uncertainty about how long they must serve. Likewise, their families, wives and children in particular, who do not know when the defendant is coming home. That is unfair to them and, as it seems to us, it can only worsen the prospects of orderly transition from custody to licence which is something upon the success of which the public at large depends. None of it need happen.
12. The first remedy is out of our hands, but we echo what the court said in Nnaji. If section 240 and 240A provided that time, or half time as the case may be, should be credited against sentence unless the judge directed otherwise, rather than requiring attention by every sentencing judge in every case, most of the undesirable consequences which we have rehearsed would be avoided and they would be avoided without in any way detracting from the aims of the statute. Only Parliament can achieve this change and only of course if Parliament judges that it is the right thing to do. We would merely urge that consideration be given to making that change. If it is to be done it would be better if it be accomplished as soon as a convenient opportunity presents itself.
13. In the meantime there are four things which courts and practitioners can and, we are afraid, must do:

1. When passing sentence, every judge should employ the formula suggested by Sir Igor Judge, President (as he then was) in R v Gordon [2007] 2 CrAppR (S) 66, [2007] EWCA Crim 165. The formula is discussed in detail at paragraph 47 of that judgment, but for present purposes the simplified substance of it is as set out in Nnaji at paragraph 9(ii), which we here repeat:

""The defendant will receive full credit for the full period of time spent in custody on remand and half the time spent under curfew if the curfew qualified under the provisions of s.240. On the information before me the total period is … days but if this period is mistaken, this Court will order an amendment of the record for the correct period to be recorded."

If that formula is used, if error has been made, it can be corrected in the court office even after the expiry of the 56 days which are now allowed under the slip rule provisions of section 155 of the Powers of Criminal courts (Sentencing) Act 2000.

2. Every court which imposes a curfew and tagging condition must use the form provided for the purpose by the Court Service. There are two forms. One is for sending to the contractors -- that is not the one to which we are referring, although obviously it is important. The one to which we are referring is a single page headed "Record of Electronic Monitoring of Curfew Bail", which is a running log of orders for curfew and tagging and any changes which occur to them. The form is required to follow the defendant from court to court. Our understanding is that when this document is properly used difficulties in the calculation of periods of tagged curfew are very much reduced, if not eliminated. It is essential that the document travels with the defendant. The principal court which this will affect will be the Magistrates' Court where a great many curfew and tagging orders begin. It is essential that when a defendant is committed or sent to the Crown Court and he either is or has in the past been subject to curfew and tagging, this form properly completed goes with his papers to the Crown Court. If a prisoner on bail is not subject to curfew and tagging the magistrates should say so or send a copy of his bail conditions. If on receipt of the case involving a prisoner on bail there is no such form and the question of his status is not clear, then the Crown Court must ask the magistrates for clarification and get hold of the form if it exists.

3. Solicitors and, if they have not done it, counsel must ask the defendant whether he has been subject to curfew and tagging. If he says he has they must find out for which periods. They do not need to ask the contractors themselves; the question ought to be capable of being answered from the court record. The Crown Prosecution Service is in the same case. It ought to know about the terms of any bail conditions and it is its responsibility also to have a system for ensuring that this information is available.

4. This court should, we think, scrutinise with some particularity applications for long extensions of time when the sole complaint is an error of calculation relating either to section 240 or section 240A. We have it in mind that prisoners are usually provided with their earliest date of release, that is to say when they are eligible for release on licence, early and often very early in their sentence. Most prisoners, but not all, have a pretty good idea of when it ought to be. If a major error has been made they are likely to spot it. If the error is a matter of a very few days that might not be spotted but the consequences are much less serious. It ought not to be expected that this court will routinely grant long extensions of time to correct such errors when no one has applied his mind to the issue until long after the event. As always, if a defendant wishes to seek to appeal he must get his application lodged promptly. We sympathise with the position of counsel and solicitors but it will not be enough to obtain long extensions of time that counsel or solicitors accept that they also missed the point. We do not say that no extensions will be granted, but they should be scrutinised in future with care.

14. In Irving the total time at stake is 12 days in the context of a two year sentence. The trial judge did not make a formal deduction under section 240A although he did indicate that he was aware that the defendant had been subject to a curfew for some little time. He had no reason to distinguish between qualifying tagged curfew and unqualifying untagged curfew.
15. In future that kind of case is likely to encounter severe difficulties in obtaining a long extension of time for leave to appeal. We are conscious, however, that at the time that this happened to Irving the legislation was new, he would not have been expected to appreciate it and, as Mr Evans has been at commendable pains to explain, he did not appreciate the point either.
16. In the circumstances, we shall in this case, but not necessarily in future similar ones, grant leave, grant the extension of time and substitute for the sentence passed one giving credit for 12 additional days.
17. In Squires the time at stake is much longer. It amounts to nearly three months. We are troubled by the delay in spotting the error and again in such a case we would expect that there may well be an uphill task in future in obtaining an extension as long as five months. But again we are dealing with this case before the warning which we have now issued had been known. We are prepared to grant the extension. We vary the sentence passed to the extent of substituting for 51 days to count against sentence the period of 145 days. Otherwise in each case the sentences remain unaltered.