England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
and
IN THE COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/11/2012

Lord Justice Moses:

1. This is the judgment of the Court. The claimant seeks to challenge, by way of judicial review, what is described as an "Order for Imprisonment" made under the Criminal Justice Act 2003, dated 28 February 2011. The Order was issued by the Snaresbrook Crown Court and purported to amend an Order of that court dated 16 November 2010. The 16 November 2010 Order had directed that 162 days spent in custody on remand would count towards the sentence under s.240 of the Criminal Justice Act 2003. The 28 February 2011 amended Order directed that only 102 days spent in custody on remand would count towards the sentence. Two issues arise: first, whether this court has jurisdiction and second, whether it was lawful for the Order for Imprisonment to be amended without an oral hearing and without any judicial decision. It appears the Crown Court altered the Order following an amendment requested by the prison in which this claimant was detained. There was no pronouncement in open court, let alone any hearing.
2. On 9 August 2007 the claimant was remanded in custody in respect of an allegation of being in possession of drugs with intent to supply. On 19 December 2007 he was sentenced to three years' imprisonment. On 9 February 2009 he was released from custody having served 18 months' imprisonment. On 1 April 2010 he was arrested for an offence of causing grievous bodily harm with intent. He had committed what the judge later described as a "frenzied attack", carving an X on the back of the victim and stabbing him in at least three places and piercing his lung.
3. On 7 April 2010 he was recalled to custody and his licence was revoked pursuant to s.254 of the 2003 Act. The sentence for the drug offence expired on 11 August 2010. Accordingly, the claimant was remanded in custody in respect of the grievous bodily harm offence for 96 days between 12 August 2010 and 15 November 2010.
4. On 16 November 2010, following a trial, he was sentenced to five years' imprisonment. At that time, the court ordered that 162 days should be credited towards the sentence of 5 years' imprisonment in respect of the time served on remand (in fact the judge mis-heard the dock officer and thought the period was 182 days, but no point is taken on that error).
5. Had the original Order in respect of time spent on remand stood, the claimant would have been released on 4 or 5 December 2012 (there still appears to be some doubt about that). On 28 February 2011 the Crown Court purported to alter the sentence without any further hearing and to reduce the amount to be credited to 102 days. If the altered date of release stands, the claimant is due for release on 3 February 2013.
6. The Criminal Justice Act 2003 makes provision for the effect of remand in custody. Section 240 provides:-

"Crediting of periods of remand in custody: terms of imprisonment and detention

(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, and

(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.

(2) It is immaterial for that purpose whether the offender –

(a) has been remanded in custody in connection with other offences; or

(b) has also been detained in connection with other matters.

(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.

(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 a 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.

241 Effect of direction under section 240 on release on licence

(1) In determining for the purposes of this Chapter or Chapter 3 (prison sentences of less than twelve months) whether a person to whom a direction under section 240 relates –

(a) has served, or would (but for his release) have served, a particular proportion of his sentence, or

(b) has served a particular period,

the number of days specified in the direction are to be treated as having been served by him as part of that sentence or period."

7. The rules to which s.240(4) refer are the Remand in Custody (Effect of Concurrent and Consecutive Sentences of Imprisonment) Rules 2005. Rule 2 of those rules provides that:-

"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 date he was serving a sentence of imprisonment (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)…"

8. In the terms of Rule 2 of the 2005 Rules between 7 April 2010 and 11 August 2010, a period of 126 days, the claimant was in custody serving the sentence of imprisonment passed on 19 December 2007 in respect of possession of drugs with intent to supply. His licence had been revoked and therefore he was not on licence. Section 240(3) did not apply because the rules made by the Secretary of State provided that it should not apply in the case of a remand in custody partly concurrent with a sentence of imprisonment (see s.240(4)(a)(i)).
9. In those circumstances the claimant was only entitled to 102 days of remand in custody to be credited towards his sentence of five years' imprisonment. That period of 102 days was made up of the period between 1 and 7 April 2010, when he was remanded into custody for grievous bodily harm with intent before his licence was revoked on 7 April 2010 and 96 days, being the period following the expiry of the sentence for possessing drugs with intent to supply and until the date of sentencing. In short, the amended Order of 28 February 2011 was correct.
10. Whether the amended Order was in fact correct or not, the essence of the claimant's case is that the process by which the court purported to amend the Order for imprisonment was not correct, it was unlawful. First, Mr Rule, on behalf of the claimant, submitted, HHJ Khayat's direction that 162 days spent on remand should count as time served as part of the sentence was final and could not be altered outside the period of 56 days (following the substitution by the Criminal Justice and Immigration Act 2008 for the previous period of 28 days) specified in section 155 of the Powers of Criminal Courts (Sentencing) Act 2000.
11. It is not disputed that that period had long since lapsed before the purported amendment. In R v Shane Norman and Others [2007] 1 Cr App R (S) 82 [2006] EWCA Crim 1792, no direction was given under s.240 in respect of 136 days spent on remand. But the court record was amended to make such a direction. The Court of Appeal (Criminal Division) ruled that there was no power to make such an amendment administratively (see paragraphs 12 and 13). It rescinded the order. Section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 did not apply because more than 28 days had elapsed.
12. The consequences of the failure in Norman were to an extent mitigated in R v Gordon and Others [2007] 1 WLR 2117. The court said:-

"[47] The starting point is that any misstatement of the number of days' credit to which a defendant is entitled would almost invariably be the product of administrative error. We see no reason why the judge cannot use language making clear that he is directing that the defendant should receive credit for the full period of time spent in custody on remand, (or any particular part of that period), that on the basis of the information currently before him the relevant period is X days, but if this period proved to be based on an administrative error, on being informed, the court would order an amendment of the record for the correct period to be recorded. Approaching the problem in this way, the number of days to be credited may properly be regarded as a temporary rather than a final order, and therefore open to correction if and when any error emerges. If of course there were any continuing issue about the number of days, the case would have to be re-listed for a judicial decision in open court. Again, the corrected order should be listed and pronounced in open court. Arrangements like these would not fall foul of the 28-day rule."

13. The reference to the 28-day rule recalls earlier passages in the judgment in which the court endorsed the decision in Norman as to the inescapable application of the 28-day period then specified in s.155 (see paragraphs 33-43).
14. Accordingly, it is necessary to consider whether the words HHJ Khayat QC used made it sufficiently clear that his specification of the number of days was merely a figure, based on the information then before him, a figure which could be amended administratively should it prove to be incorrect.
15. The following exchange with defence counsel and the dock officer took place before the judge passed sentence in the terms which follow :

"Judge Khayat: Was he in for anything else?

Mr Higginson: Yes.

Judge Khayat: Well, how do we know that until it is checked? Was he released? Was he re-arrested, and so on?

The Dock Officer: Your Honour, we have got 162 days.

Judge: 182?

The Dock Officer: Yes

Mr Higginson: Thank you very much.

Judge Khayat: Stand up. I have already told you that you will serve half the five year sentence. That half will be reduced by 182 days that you have spent awaiting your sentence or, if it proves to be wrong, such other period as is properly to be found as days spent in custody in which case it could be sorted out administratively.

Mr Higginson: Thank you."

16. It is apparent that the judge mis-heard but it is not disputed that he should have said 162 days and that the sentence he then passed should be read as reducing the sentence by 162 and not 182 days.
17. The question is whether that exchange gave a sufficiently clear indication to the prisoner that the number of days credited might be reduced administratively, if the number given, 162 days, failed properly to reflect the number of days he was in prison, "for something else".
18. The first obstacle to such a reading lies in the terms of section 240(6). If, in the light of defence counsel's acceptance that his client was 'in for something else' the judge was purporting to give a direction in relation to a number of days less than that for that which the offender was remanded in custody, subsection (6) required him to say so and to announce that his decision was in accordance with the 2005 Rules. This requirement seeks to achieve the clarity and transparency to the process of sentencing, of which Latham LJ spoke in Norman [1].
19. Absent any such announcement, it is difficult to interpret the judge's remarks as anything other than an order that the full number of days during which the claimant was remanded in custody should count towards his sentence, subject to any error in the calculation as to the number of those days.
20. That is the type of error which the court described in Gordon [47]. In that paragraph Sir Igor Judge P envisaged the judge making a direction that the defendant should receive credit for the full period of time on remand, a subsection (3) direction or credit for any particular part of that period (the words the President puts in parenthesis), a subsection (4) direction. If the judge received incorrect information merely as to the number of days to be credited on the basis of one or other of those directions, then, provided he made it clear that the information was subject to correction, such a correction could be made administratively, with the added safeguards the President describes.
21. It does not seem to me that the President can have been contemplating a direction under subsection (3) that the defendant should receive credit for the full period of time spent on remand being corrected administratively to a direction under subsection (4) that he should only receive credit for a particular part of that period. The structure of section 240 and, in particular, subsection (4) read with subsection (6) distinguishes between two types of direction. It is for the judge to make clear whether he is making a direction under (3) or under (4). If he makes a direction under (4), he must make clear the basis on which he is doing so by a statement in open court under subsection (6). It is not possible to change one type of direction for another outside the 56 day period for which allowance is made in section 155 of the 2000 Act.
22. In the instant case, despite the fact that it was accepted that the claimant was in prison for something else, absent any further assistance (which he should have received from counsel), the judge chose to give a direction under subsection (3) and not to give a direction under subsection (4). His qualification was merely the type of qualification Gordon allows, should the number of days covered by the subsection (3) direction prove incorrect. It is clear that the judge was not making a direction that credit should be given in relation to a number of days less than that for which he was remanded in custody; if he had been, he would have said so and was bound to explain the basis on which he was making such a direction.
23. The amendment of the Order for Imprisonment, reducing the days to be credited in purported application of subsection (4) and the 2005 Rules was accordingly unlawful. There was no power to change a direction under subsection (3) to one under subsection (4). The court could not have done so outside the 56 day period, still less could the direction be altered administratively.
24. This conclusion means that it is unnecessary to dwell upon the submission advanced on behalf of the claimant that a discretion is conferred upon the judge under subsection (4)(a) and that it is open to the judge to direct that he should be given credit for some of the days on remand when those days were concurrent with a sentence of imprisonment. The 2005 Rules do not admit of any such discretion. Any days on remand which are concurrent with a previous sentence of imprisonment cannot count as time served under the new sentence. The only judgment to be exercised in respect of days on remand is that which may be made under section 240(4)(b).
25. What then is the remedy? This leads to consideration of the issue of jurisdiction. Section 29(3) of the Senior Courts Act 1981 provides:-

"In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make mandatory, prohibiting or quashing orders, as the High Court possesses in relation to the jurisdiction of an inferior court."

26. It is true that the rationale for s.29(3) was to prevent delay of the trial (see, e.g., in Re Smalley [1985] 1 AC 622 at 642F). This application cannot in any way be said to risk the progress of a trial. But as, Lord Slynn observed in In Re Ashton [1994] 1 AC 9 at 13C, the second factor underlying the section is the availability of remedies in criminal proceedings. Those remedies include appeal to the Court of Appeal (Criminal Division) where such arguments as abuse of process may be deployed.
27. It is plain that on appeal a sentence may be impugned on the basis that it was unlawful. It may be impugned on the basis that the sentencing judge had no jurisdiction to make the Order in question. An Order as to the number of days to be credited is an integral part of the sentence. In R v Norman the court said:-

"Bearing in mind that the period spent on remand could be a significant proportion of the sentence, we consider that a failure to identify, or identify correctly the period which should be treated as served pursuant to s.240 means that a sentence is wrong in principle. The defendant is entitled to have a direction; and an appeal is the only route avail0able if s.155 of the 2000 Act, or an administrative correction, is not available." [51]

28. Mr Rule contended that the amended Order for Imprisonment was not an Order of the court and was not part of the sentence. The only valid sentence was a sentence which gave credit for 162 days on remand. Accordingly, the defendant had nothing to appeal against and the Court of Appeal could not increase the sentence by upholding the arguments of the Crown Court and Interested Party since to reduce the period to be credited to 102 days would be to increase the sentence. On that basis the only remedy available was to seek to quash the amended order by judicial review.
29. It must be acknowledged that an order of the Crown Court made without jurisdiction may be amenable to judicial review. In R v Crown Court at Maidstone, ex-parte London Borough of Harrow [2000] QB 719 [2001] Cr App R 117, a judge purported to make a Supervision and Treatment Order under the provisions of the Criminal Procedure (Insanity) Act 1964 without empanelling a jury and thus without jurisdiction.
30. In our view it is far better to seek to draw clear lines of demarcation between those cases which ought to be the subject of appeal to the Court of Appeal and those which should be brought by way of judicial review. Arguments about jurisdiction are likely to be arid if it is possible, as it is in this case, to re-constitute the court as the Court of Appeal, Criminal Division, so long as the issues can be properly determined without unfairness to any of the parties. If it is known that all issues relating to the time to be credited under section 240 should be litigated in the Court of Appeal, there should be no need for these interesting debates as to jurisdiction in the future.
31. The issues in this case should be litigated in the Court of Appeal, Criminal Division. The order of 28 February 2011 purported to be a consequence of the judge's sentence. As a Court of Appeal we can consider whether the order, which amended the period to be credited from 162 to 102 days, came within the scope of the sentence passed by HHJ Khayat QC.
32. We shall re-constitute ourselves as a Court of Appeal, Criminal Division. We shall regard these proceedings as an appeal with leave and with time for appeal extended. For the reasons we have given, the appeal is allowed. Once the judge was aware that the defendant had been in prison in respect of the earlier sentence, and in the absence of the assistance he should have been given by counsel, he should have adjourned the sentence hearing so that he could be furnished with the correct information and give the direction he was required to give by way of statement in open court under section 240(4) and (6).
33. The order of 28 February 2011 that only 102 days should count towards the sentence of five years' imprisonment was unlawful and we shall substitute for the period of 102 days the period of 162 days pursuant to section 240(3) of the 2003 Act.