London, WC2A 2LL
Wednesday, 20 December 2017
B e f o r e :
MR JUSTICE PICKEN
HIS HONOUR JUDGE LUCRAFT QC
(Sitting as a Judge of the CACD)
|R E G I N A|
Mr G Bermingham appeared on behalf of the Crown
Crown Copyright ©
"On 30th May 2017, His Honour Judge P Thomas QC ordered that any time spent on remand in respect of this matter is to count towards the final sentence."
This Order is signed by an officer of the Court, although it has a number of oddities. First of all, the date which pre-dates the reference to 30th May 2017 to which we have just referred. The other oddity is that the matter was subsequently brought back before the judge in September 2017 apparently seeking a revision or correction to the sentence which was made. The judge on that occasion declined to amend the order and sentence on the basis that the application was necessarily being made too late, but the curiosity is why such an application would have been made at all if, in fact, the order which we have been shown for the first time today was an effective order.
"(4) The court may instead remand the child to youth detention accommodation in accordance with section 102 where—
(a) in the case of a child remanded under subsection (1), the first or second set of conditions for such a remand (see sections 98 and 99) is met in relation to the child, or
(b) in the case of a child remanded under subsection (2), the first or second set of conditions for such a remand in an extradition case (see sections 100 and 101) is met in relation to the child."
Section 91(4) is an alternative to subsection 91(3) which states:
"(3) Subject to subsection (4), the court must remand the child to local authority accommodation in accordance with section 92."
Importantly, a remand under section 91(3) does not come within the definition contained in section 242(2)(b) of the 2003 Act which very specifically refers to section 91(4) and makes no mention of section 91(3). The distinction between the two types of remand is, therefore, clear and it is an important distinction because of the fact that section 240ZA(1) of the 2003 Act provides as follows:
"(1) This section applies where—
(a) an offender is serving a term of imprisonment in respect of an offence, 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."
In other words, for present purposes, only if section 242 applies does section 240ZA apply and specifically subsection (3) which states:
"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 the offender as part of the sentence."
Accordingly, time spent on remand is automatically deducted if detention is imposed pursuant to section 91(4), i.e. remand into youth detention accommodation, but not otherwise and so not where the remand is into local authority care.
"15. In Bright  EWCA Crim 462, however, another constitution of this court, presided over by Sir Igor Judge, President of the Queen's Bench Division, took a rather different view of a similar submission. The appellant had been the managing director and chief executive officer of the Independent Insurance Group, which had collapsed in 2001 and gone into liquidation with an enormous deficiency of assets to liabilities. The appellant was convicted on two counts of conspiracy to defraud and sentenced to seven years' imprisonment. He appealed against sentence. It is unnecessary for the purposes of the present appeal to summarise most of the issues which arose in that case or the court's decision on them. However, one ground of appeal in that case, as in the present, was that, having told the appellant that he would be released after serving three and a half years' imprisonment, the judge had failed to give effect to his intention because he had overlooked the fact that the relevant sentencing regime was that applicable under the Criminal Justice Act 1991, rather than that established by the Criminal Justice Act 2003.
16. The President, giving the judgment of the court, said this in paragraph 41:
'... Mr Winter sought to argue that as the judge intended a 3½ year sentence actually to be served, the sentence should in any event be reduced to 5¼ years. The submission is based on a fallacy. The actual sentence was 7 years imprisonment. The release provisions did not and should not have affected the judge's sentencing decision. What he was required to do was to explain the effect of the sentence in the context of the applicable statutory provisions relating to release. He did not 'intend' that the appellant should be released after 3½ years: that would simply have been the consequence if the 2003 Act had applied to the sentence, and he was required to state that consequence in open court.'
17. In our view, the present case falls squarely within these principles, and if we have to chose between the earlier decisions of this court we unhesitatingly prefer the decision in Bright which deals with the matter as one of principle. It is true that in the present case the Recorder did not clarify his intentions in the way that the judge did in Bright on the very day of sentence and so make it clear what his actual intention was, but that does not, in our view, affect the fundamental principle that the judge's task is to determine the overall length of sentence, not how long the defendant will actually spend in custody.
18. Mr Middleton submitted that the essential ground of appeal in this case, as in all such cases, is that it would be unfair to the appellant to require him to serve a period in custody longer than the judge had told him he would have to serve. In our view, however, the judge is simply required to explain the effect of his sentence and it does not make the sentence unfair in any sense which gives rise to a ground of appeal if he simply makes an error in carrying out that function.
19. In the present case we are unable to accept that the Recorder did 'intend' in any conscious sense that the appellant should be released after three years or any other particular period; he simply passed what he considered to be the sentence appropriate to the offences of which the appellant had been convicted, namely, one of six years' imprisonment. He was required to explain the effect of his decision, but the fact that his explanation was inaccurate because he had the wrong statutory provisions in mind does not undermine his decision or provide grounds for saying that the sentence was wrong in principle or manifestly excessive; indeed this court has already held that it was not. In these circumstances, the appeal constituted by the reference is dismissed."
"If a young offender is remanded to detention pursuant to LASPO, time spent in custody or on electronic curfew will count. That is because it is a remand in custody for the purposes of the Criminal Justice Act. However, there is an anomaly in the statutory provisions, because if a young person is remanded into local authority accommodation with an electronic curfew provision, that does not amount to a remand in custody for the purposes of the 2003 Act. In those circumstances, counsel appearing for young persons remanded into local authority accommodation and subjected as a condition of bail to curfew should raise the issue with the sentencing judge, as indeed should those who have been the subject of an electronic curfew when remanded into what is equivalent to custody."
In terms of the credit which falls to be given in accordance with the mechanism set out in section 240A, the parties have been able to agree that the relevant credit amounts to 98 days. Accordingly, we allow the appeal. The sentence of three years' detention will stand, but we direct and make it clear to the relevant authorities that credit should be given in respect of a total of 112 days, made up as follows, namely 14 days for the time when the offender was remanded into youth detention accommodation and 98 days in respect of the period when he was subject to curfew requirements.
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