England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/11/2013

The Lord Chief Justice of England and Wales:

1. These applications for leave to appeal against sentence raise issues as to how much of the period of time spent on remand or on bail under a qualifying curfew should have been taken into account as time served in relation to the sentence passed on each; one application raises issues of procedure.

Legislative background

2. Until the coming into force of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) on 3 December 2012, as is well known, a number of problems arose in relation to the provisions of s.240 of the Criminal Justice Act 2003 (CJA 2003) under which the court had to specify the amount of the time spent on remand that was to count as time served as part of the sentence. Insufficient dialogue had occurred prior to its enactment as to the practicality of the provision. It soon became clear that, at the time of sentence, mistakes were often made as to the period of time which had been spent on remand and the error was not discovered until after the 28/56 day period within which the sentencing court could correct the error under s.155 of the Powers of Criminal Courts (Sentencing) Act 2000, often referred to as the slip rule.
3. As the correction of errors by an appeal process was a disproportionate use of the scarce resources available to the judiciary, this Court devised a way of dealing with the problem. In Gordon [2007] EWCA Crim 165 (also reported [2007] 1 WLR 2117; [2007] 2 All ER 768; [2007] 2 Cr App R (S) 66; [2007] Crim LR 402), this Court, in a judgment delivered by the President of the Queen's Bench Division, Sir Igor Judge, made clear that a sentencing court, when it passed sentence and intended that the full period on remand should count, should use words to enable an error to be corrected by the clerk at the Crown Court; we return to this decision at paragraph 17 below. A suggested formulation was put forward. In Nnaji and Johnson [2009] EWCA Crim 468 this Court further refined that formulation; see also R v Boutell [2010] EWCA Crim 2054.
4. The position was made more complex when the provisions were amended by s.21(1) and (4) of the Criminal Justice and Immigration Act 2008 which inserted s.240A into the CJA 2003 to make provision for the counting of time spent on bail under a qualifying curfew.
5. It has always been the duty of defence advocates to ensure that proper information about their client relevant to sentence was before the sentencing court. This included information about the period of time spent on remand or under a qualifying curfew. If it was concluded an error had been made by the sentencing court, it was the duty of defence advocates to apply to this court within the strict time limits applicable. It was against this background that in R v Irving and Squires [2010] EWCA Crim 189, the then Vice-President (Hughes LJ) made clear at paragraph 13 that steps should be taken to deal with the ever increasing number of cases where errors had been made. Solicitors and counsel must specifically ask the defendant whether he had been the subject of tagging. Furthermore:

"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."

6. As this court had urged on many occasions, Parliament decided in LASPO that in general the calculation of time on remand should be carried out administratively. On 3 December 2012 the relevant provisions of LASPO came into effect. S.240 of the 2003 Act was repealed and s.240ZA was inserted into the CJA 2003. With effect from the same date s.240A was amended; it did not make the calculation of days under a qualifying curfew automatic; it remained necessary for the court to make a direction. The effect of the provision was clearly explained by Sweeney J in R v Hoggard [2013] EWCA Crim 1024 at paragraph 23. None of these appeals is affected by the new provisions and it is unnecessary to refer to them further.

Leacock

7. We turn first to consider the position of a prisoner where a mistake had been made in his favour in relation to the time spent on remand in circumstances where the mistake had arisen from the failure to leave out of account time spent serving an earlier sentence of imprisonment which was concurrent with the period of the remand.

(i) The facts

8. On 29 June 2012, Leacock pleaded guilty at the Crown Court at Guildford to conspiracy to commit fraud. On 6 September 2012, in the plea in mitigation, his advocate asked the judge to give him credit for 120 of 184 days spent on remand whilst he had been serving another sentence; he suggested this be done by reducing the sentence to be imposed by 3 months. His advocate clearly had in mind the provisions of s.240(4)(a) that make it impermissible to give credit for that time; we set out this provision at paragraph 14 below. The judge invited the Crown and counsel for Leacock and his co-accused to agree the time spent on remand.
9. The following day, it is reasonably clear from the judge's decision that he reduced the sentence by two months to take account of the period on remand whilst serving the other sentence. The judge also said:

"It is my intention that all defendants should receive credit for time served and such periods as have already been calculated and stated in this court or whatever period subsequently appears to be the right calculation of the period served on remand prior to sentence."

10. Leacock was sentenced to 29 months imprisonment. The period of remand to be taken into account was stated in court as 184 days; the Order of the Court so provided. No-one realised that this was an error. From the discussion the previous day, it was clear that the period of 184 days should have been reduced by the time spent serving the other sentence.
11. On 17 September 2012, it was realised by the prison authorities a mistake had been made; the amount of time in fact spent on remand, leaving out of account the time spent serving the other sentence, had been 115 days. That was calculated on the basis that Leacock had been a serving prisoner until 14 May 2012 and the remand period was only from 15 May 2012 until the date of sentence. The cases on s.240 make clear that the period spent serving the other sentence should not count.
12. The Order of the Court was then amended by the clerk at the Crown Court to provide that 115 days should count against sentence; there was no hearing. Leacock's date of release was corrected accordingly.
13. On 10 June 2013 Leacock sought leave to appeal on the basis that, following the decision in R (Hicks) v The Crown Court at Snaresbrook [2012] EWHC 3348 (Admin), [2012] EWCA Crim 2515, there was no power to do this. We grant leave.

(ii) The operation of s.240 of the Criminal Justice Act 2003

14. Before turning to the decision in Hicks, it is necessary to set out in a little more detail the operation of s.240. The section provided:

"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.

15. S.241 provided:

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."

16. 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 (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 )…"

17. As we have set out, these provisions have caused serious difficulties because of the difficulty in calculating the time spent on remand. Three decisions of this Court are of particular importance:

i) In R v Norman [2006] EWCA Crim 1792, [2007] 1 Cr App R (S) 82, this Court made clear that the ability of the court to correct matters administratively was very limited. It suggested at paragraph 50 the following:

"….

(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 s.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.

iii) The procedure under s.240 of the 2003 Act is mandatory in regard to determinate sentences of imprisonment or detention imposed for offences committed on or after April 4, 2005, unless the sentencing judge exercises his discretion under subs.(4) in which case, pursuant to subs.(6) the judge must identify which of the provisions of subs.(4) apply, and in the event of the court exercising its power under subs.(4)(b) the circumstances which have led the judge to make the order that he has.

iv) Care must be taken to apply the 2005 Rules, whenever a defendant falls to be sentenced for offences committed both before and after April 4, 2005.

v) …. If the court wishes to disapply the period in question, it must give reasons for so doing.

ii) In Gordon, this Court considered the general objectives at paragraph 31:

"31 The imperative is that no prisoner should be detained for a day longer than the period justified by the sentence of the court. S.240 of the 2003 Act is clearly directed to achieve that, save in cases specifically identified for express reasons, credit should be given to the prisoner for time spent in custody on remand, unless such credit would contravene some other statutory provision, or result in double crediting. That is why the Sentencing Guidelines Council in New Sentences: Criminal Justice Act 2003, para 1.137 explained that "The court should seek to give credit for time spent on remand … in all cases … [it] should explain its reasons for not giving credit".

It then pointed out three problems:

"32 From the present group of cases, and indeed a number of other cases, we can identify three main problem areas. First, the court may give a direction that time spent in custody should be credited, but, acting on inaccurate information, may specify too long, or too short a period. Second, the court may conclude that although such a direction should be given, it lacks information, or sufficient information and accordingly, having indicated its intention to make the direction, may leave the order incomplete, pending the arrival of acceptable accurate information. Third, the court may simply say nothing on the subject, without being reminded of the obligation either to direct that credit should be given, or alternatively, provide an explanation why in the particular case it would be inappropriate to give such credit."

It then made clear at paragraph 47 what a sentencing court should do:

"47 We have re-examined the decision in R v Norman in the light of the Annesley principle and in particular the observations of Latham LJ at para 50(ii) of the judgment. 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 relisted 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."

iii) Despite this clear guidance, problems still continued. Therefore in Nnaji and Johnson, the court said at paragraph 9:

"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 s.155 of the Powers of Criminal Courts (Sentencing) Act. As we have endeavoured to set out, needless expenditure is incurred for no apparent gain. There are two solutions to the problem:

i) Reconsideration ought to be given by Parliament to s.240 of the Criminal Justice Act 2003 …..

ii) Pending reconsideration of the provisions of s.240, we would hope that each judge when imposing a custodial sentence would use the formula suggested by Sir Igor Judge (as he then was) in Gordon along the following lines:

"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."

18. There can be no doubt but that courts had been following this guidance until the reform of the law in December 2012; numerous sentences were corrected administratively. However, it appears that it was not until the decision in Hicks that any point was raised in relation to the correction of time spent on remand where the error had arisen from a mistake in calculating the time the prisoner had spent serving a sentence for another offence when at the same time he was on remand.

(iii) The decision in Hicks

19. In Hicks, the error made was such an error. As we have set out at paragraph 9 above, the judge set out the number of days to be counted and added that if that proved to be wrong, then the period was to be "such periods as have already been calculated and stated in this court or whatever period subsequently appears to be the right calculation of the period served on remand prior to sentence". The time to be credited was reduced by the clerk of the court when it was discovered that for part of the period when he had been on remand he was a serving prisoner.
20. It was argued on behalf of Hicks in an application to the Administrative Court that the court had no power to alter the sentence in this way. The court agreed. It then reconstituted itself as a two judge court of this Court, treated the application as an appeal, quashed the amended order and restored the original sentence.
21. It did so on the basis that the judge had made an Order under s.240(3); the power spelt out in Gordon only applied to amending an order under s.240(3), but the amended order of the court was an order under s.240(4), as it was s.240(4), and not s.240(3), that applied to cases where the remand in custody had been concurrent with a sentence of imprisonment. There was no power to amend an order under s.240(3) so that it became an order under s.240(4).

(iv) The argument before us

22. Leacock relied on the decision in Hicks. It was submitted on behalf of the Crown that the decision could be distinguished on the basis that the judge had clearly used the form of words suggested in the decisions to which we have referred and those words covered the error. In any event, the court had not applied the provisions correctly. The effect of s.240(4)(a) was clear; the court had no power to count the time spent serving another sentence as time on remand. The original order made in respect of Leacock was in error as the court had no power to count the time Leacock had spent as a serving prisoner as time on remand which could be credited against the sentence to be served, but neither that order nor the amended order was unlawful. The court in Hicks had fallen into error in stating that there was a separate order under s.240(4); the effect of s.240(4) was simply to provide for circumstances in which an order under s.240(3) could not be made.

(v) Our conclusion

23. It is clear, in our view, from the terms of s.240(4) and the earlier decisions of this court before Hicks that if a prisoner is serving a sentence for another offence at the time on which he is remanded for the offence for which he is to be sentenced, the application of the Remand in Custody Rules is mandatory; the court has neither the power nor the discretion under s.240(3) to allow that period to count as time on remand.
24. The effect of s.240(6) is that where a court gives a direction for less than the number of days for which the prisoner was remanded in custody or gives no direction under s.240(3) (with the result that no days count), it must make clear that it has complied with the mandatory provisions of s.240(4)(a) as to the time being served with respect to another sentence of imprisonment and give its reasons for not making a direction under s240(3). The intention of Parliament was clear - a court could not count the time spent serving another sentence, but had to give reasons as to why otherwise the full period of time on remand did not count. In effect there was to be no diminution in the punishment for the earlier offence, but time awaiting trial should normally count in full.
25. Thus understood, it is clear that there is no separate order under s.240(4); the only order a court can make is an order under s.240(3). S.240(4)(a) merely restricts the discretion of the court; s.240(4)(b) makes it clear that if an order is not made under s.240(3) reasons must be given. The only Order is an order under s.240(3).
26. As in R v C [2011] EWCA Crim 1872, [2012] 1 Cr App R (S) 89, the issues in this case relate to the practical operation of complex sentencing provisions. As the court there made clear, the court is able to reconsider decisions made when it is clear that the decision made on an earlier occasion was made without the benefit of all the material matters being drawn to the attention of the court (see paragraphs 24-5 and 43(iv)). On this appeal we have had the full benefit of the research made by counsel and the office of this court; we have also had the benefit of much fuller argument. The operation of these provisions as intended by Parliament is clear. We therefore conclude that in the case of Leacock, there was power to correct the error in the Order made under s.240(3) as the formulation used by the judge was that which followed the suggestions of this court and the Order drawn by the Clerk was also an Order under s.240(3) as that was the only subsection under which an Order could be made.
27. The appeal is therefore dismissed. We would anticipate that there will be few other cases in which a point arises in relation to time on remand by a prisoner serving a sentence for another offence, as the amending provisions made by LASPO have now taken effect.

Blacker, Trevis and Nutting

28. We turn next to consider the three applications where the issue arises in relation to the minimum term imposed in relation to indeterminate sentences where the decision was made some considerable time ago – Blacker, Trevis and Nutting.

(i) The legislative provisions

29. In fixing the minimum term for a mandatory sentence of life imprisonment for murder the judge was required by s.269(3) of the 2003 Act to take into account the effect of a direction which would have been given under s.240 in respect of time spent on remand. In fixing the minimum term for a sentence of Imprisonment for Public Protection, the judge was also required by s.82A(3)(b), Powers of Criminal Courts (Sentencing) Act 2002 to take into account the effect of a direction that would have been given under s.240 in respect of time spent on remand.

(ii) Blacker

30. On 23 January 2006 Blacker was convicted of murder at the Crown Court at Manchester before the Recorder of Manchester. He was sentenced to life imprisonment with a minimum term of 11 years.
31. He had spent a total of 234 days in custody on remand. In his sentencing remarks the Recorder made no reference to the time spent on remand.
32. On 29 November 2012 new solicitors instructed on behalf of Blacker applied on his behalf to appeal out of time against sentence on the basis that the judge had not taken time on remand into account.
33. Blacker was represented by very experienced counsel in 2006 and sentenced by a most experienced judge. It is inconceivable that either would have overlooked this point, or if they had, no one would have thought of it immediately afterwards. We see no basis on which we should now grant an extension of time. The application is refused.

(iii) Trevis

34. On 4 July 2003 Trevis was convicted at the Crown Court at Birmingham before Beatson J and a jury of the murder of an 84 year old woman. Under the then law she was sentenced by the judge to a sentence of life imprisonment and a recommendation was made to the Secretary of State that the minimum term be one of 16 years.
35. No minimum term was fixed by the Secretary of State pending a change in the law to provide that the decision be one that was made by a judge. When the new provisions came into effect, the minimum term was referred under the provisions of the CJA 2003 to the High Court; on 11 August 2005, Beatson J fixed the minimum term as 16 years: (R v Trevis [2005] EWHC 1840 (QB)).
36. Trevis had been in custody from 19 October 2002 (at first after her arrest and then on remand) until her conviction. The period of time was 256 days. The High Court made no reference to any deduction of this period.
37. In August 2011, new solicitors were instructed on her behalf. In the course of 2012 enquires were made; informal advice was given in June 2012 and advice given by counsel and the grounds of appeal prepared just before Christmas 2012.
38. On 12 February 2013 the new solicitors applied on her behalf to appeal out of time against sentence on the basis that the judge had not taken time on remand into account.
39. The application was made over 7½ years after the term was fixed. By 2012, it was impossible to determine whether the judge failed to take that period of time into account in fixing the minimum term; the term set was a term which could well have reflected that period. We see no basis on which an extension of time should now be granted. The application is refused.

(iv) Nutting

40. On 16 April 2010 Nutting pleaded guilty to wounding with intent at the Crown Court at Birmingham; sentence was adjourned to obtain a report. On 21 June 2010 he was sentenced by Mr Recorder Desmond to imprisonment for public protection with a minimum term of 27 months.
41. He had been on remand since his arrest on 2 January 2010; thus the total time he had spent on remand was 168 days. However,

i) On 5 December 2008 Nutting had been sentenced to 20 months custody for burglary. He was released from custody for that offence on 18 July 2009, the sentence expiry date was 5 August 2010.

ii) On 23 October 2009 Nutting was sentenced to four months custody for assault occasioning actual bodily harm; he was released from custody on 24 December 2009. The expiry date of that sentence was 24 February 2010.

iii) It does not appear that he was recalled to prison for breach of his licence on either occasion. On the second occasion he committed the offence of wounding within one week of his release.

42. The Recorder asked the court clerk how long he had been in custody. He was told that Nutting had been in custody for 23 days. His counsel said nothing. The Recorder therefore directed that 23 days be deducted from the minimum term; he did not add anything to permit the time to be varied in accordance with the decision of this court in R v Gordon [2007] EWCA Crim 165. Nutting is recorded as saying "Six months that is." Nothing was said by his counsel or anyone else to correct the position.
43. Over two years later, on 5 February 2013, Nutting, through counsel who had not appeared in the Crown Court, applied for leave to appeal out of time. The minimum term set by the Recorder had expired on 29 August 2012; if the period of time to count of 168 days had been credited, the minimum term would have expired on 6 April 2012.
44. In our judgment this is the type of case to which the decision of this court in Irving and Spears should for the future apply. Over two years elapsed before an application was made to this court. We would emphasise again that it is the duty of the advocate to check carefully at the time the position; this court will not correct errors unless an application is promptly made. However on this occasion, exceptionally, we will grant leave and allow the application and direct that 168 days be counted. For the future, it must be expected that an application of this type will not succeed.

Morin

45. We turn last to the application where counsel representing the applicant failed to make enquiries at the time with the result that time under a qualifying curfew was not taken into account by the judge.
46. On 29 October 2012 Morin was convicted at the Central Criminal Court before Mr Recorder Sells QC and a jury of two counts of fraud by abuse of position contrary to ss.1 and 4 of the Fraud Act 2006; prior to conviction she had been on unconditional bail. Sentence was adjourned following conviction; the appellant was granted conditional bail with an electronically monitored curfew for a daily total of 9 hours; she was held overnight whilst her passport was located and surrendered. She was released on conditional bail on 30 October 2012.
47. On 12 December 2012 she was sentenced to three years imprisonment concurrent on each count. The judge was not asked to take into account the time spent in custody or the 43 days spent on bail with the qualifying curfew; the explanation of her counsel is that his note of the terms of bail did not record the requirement of a curfew. He was therefore not alert to the need to ask for this to be taken into account on the day of sentence
48. Morin approached her solicitors about this in late February 2013; inquiries were then made which revealed that she had spent time on qualifying curfew. An application was made on 5 April 2013 to this court for leave to appeal out of time.
49. As we have stated in respect of the appeal in Nutting, it is the duty of the advocate to make proper enquires. The advocate did not do so. This had been a case where the issue should have been raised at the sentencing hearing; there is no proper reason why it was not as the advocate has accepted. He has appeared here today without fee. For the future, the court will apply the time limits strictly. On this occasion, exceptionally, we are, however, prepared to grant leave, allow the appeal and direct that 21 days be counted.