England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		29th July 2002

Mr Justice OUSELEY:

1. This is an application for judicial review in respect of the calculation by the Secretary of State for the Home Department, the defendant, of the date of release from custody of Maria Lenehan, the claimant. On 2^nd July 1997, she was sentenced to a term of six years imprisonment following her plea of guilty to a single charge of arson. The issue as to her release date turns upon the application of section 67(1A) of the Criminal Justice Act 1967, which governs the allowance for time spent in custody on remand, to the unusual set of facts here. The Secretary of State contends that no allowance falls to be made in respect of part of the time which the claimant spent on remand in custody; the claimant contends that his calculation of her release date is in error, as a matter of law, in failing to allow for nearly nine months of the time which she spent in custody.
2. If the Secretary of State is right, the claimant contends in the alternative that she ought to able to renew her application to the Court of Appeal, Criminal Division, for leave to appeal against her sentence, on the grounds that the sentencing judge would or should have made a commensurate reduction in her sentence had he appreciated that part of the time which she spent on remand in custody would not count towards her sentence. The Secretary of State contends that no such allowance should be assumed to have been envisaged by the sentencing judge, in view of the fact that the six year sentence was passed under section 2(2)(b) of the Criminal Justice Act 1991, as a sentence longer than commensurate with the gravity of the offence, with the future protection of the public in mind.
3. It is agreed between the parties that if the claimant’s submissions as to the true application of section 67(1A) of the 1967 Act are correct, she should be released on 27^th July 2002 after allowance has been made for adjudications against her for disciplinary matters while in prison. Her non-parole release date would otherwise be 3^rd March 2003.

The Facts

4. On 11^th June 1998, the claimant was arrested after she had admitted to her consultant psychiatrist that she had started a fire in two recycling bins and had set fire to furniture in a neighbour’s yard. These were minor fires. During her interview with the police, she admitted to setting both fires. She was charged with arson in respect of the furniture fire alone. On 13^th June 1998, she was remanded into custody by the Nottingham Magistrates’ Court. This is the starting date for the contentious period in custody; it is the first court order committing her to custody. No point is made under section 67 (1A)(a) in relation to the couple of days which she had previously spent in police custody.
5. On the same day she also signed a receipt to show that she had received the form upon which she could indicate acceptance that she had committed an offence in respect of the recycling bin or skip fire and wished it to be taken into consideration when she was sentenced for the furniture fire. Although from her point of view she had done no more than sign a receipt form, Mr Bogan who appeared for her before us, submitted that it also showed how the prosecution viewed that offence and expected to proceed in respect of it.
6. On 13^th August 1998, she indicated that she would plead guilty to the arson charge in respect of the furniture and the Magistrates committed her for sentence to the Nottingham Crown Court. However, after many adjournments for psychiatric assessment, it became apparent that she had a defence to this arson charge. This was that she was the owner of the furniture which she had set alight. Accordingly, on 19^th February 1999, the case was remitted to the Nottingham Magistrates’ Court for her plea to be vacated and retaken.
7. On 8^th March 1999, her plea was vacated and a plea of not guilty was entered in respect of the furniture arson charge. She was however charged with arson in respect of the skip fire, which she had already admitted to her psychiatrist and later to the police in the same interview during which she had admitted to the furniture fire. She was again remanded in custody. This is the start of the period in respect of which the Secretary of State has allowed her time in custody to count against her sentence, because it marks the start of her period in custody for the offence in respect of which she was eventually sentenced to six years imprisonment. Accordingly, the contentious period runs from 13^th June 1998 to 7^th March 1999 inclusive, representing the period of remand in custody before she was actually charged with the skip fire offence.
8. On 12^th April 1999, she was committed for trial to Nottingham Crown Court on both the furniture arson and the skip fire charges; she later entered pleas of not guilty to both counts. But on re-arraignment on 21^st May 1999, she entered a plea of guilty to the skip fire charge and a not guilty verdict was entered to the furniture arson charge after the Crown offered no evidence on it.
9. She was sentenced to six years imprisonment on 2^nd July 1999. His Honour Judge Hopkin took into account her guilty plea entered at the earliest opportunity, stated that he would have imposed a three year sentence had the offence stood alone, but that in view of her previous conviction for arson and what had been said about her in the pre-sentence report, a longer than commensurate sentence of six years should be passed. Neither Counsel for the Crown (who was not Miss Grey) nor for Ms Lenehan (who was not Mr Bogan), made any reference to the potential significance of the period which she had spent on remand between 13^th June 1998 and 7^th March 1999. The Judge’s sentencing remarks contain no reference to it either.
10. On 20^th July 1999, grounds of appeal against sentence were sent to Nottingham Crown Court but these did not raise the question of the nine months spent in custody, even though by this time the claimant had been told in prison that this period would not count towards her sentence and she had already raised the matter with her then solicitors, who had said that they would look into it. In early September 1999 they drew the matter to the attention of Counsel, asking him to raise it as a ground of appeal, which on 24^th September 1999 he did .(Again this was not Mr Bogan). Unfortunately, leave had already been refused by the single judge.
11. The claimant received advice as to her entitlement to renew her application but by the end of October 1999, she had decided against that course lest it cause her to lose time already served, notwithstanding the advice of counsel and solicitors that they felt that they had a duty to continue with the appeal. It was not until January 2002, with different solicitors and counsel, that the claimant again pursued the point that she had always thought she had in relation to her release date. Although some earlier correspondence from the Prison Service had maintained its position as to her release date, there was a clear confirmation that the period at issue would not be taken into account, in letters dated 30^th January 2002 and 14^th February 2002, from the Prison Service. At various places in the claim form, these letters have been taken to constitute the decision under challenge.
12. The defendant took a delay point which related to the delay following a Release Date Notification Slip provided to the claimant on 15^th December 1999, which had told her in effect that the period at issue would not count.

The statutory provisions

13. Section 67 (1) and (1A) of the Criminal Justice Act 1967 as amended provides:

“(1) The length of any sentence of imprisonment imposed on an offender by a court shall be treated as reduced by any relevant period …

(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 which 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.”

14. Putting the relevant questions into the statutory language:

(1) Was the claimant in custody from 13^th June 1998 to 7^th March 1999 in connection with any proceedings relating to the skip fire?

Or (2) Were the furniture fire proceedings, proceedings from which the skip fire proceedings arose; that is, were the remand proceedings, proceedings from which the proceedings in respect of which the offence or sentence proceedings ultimately arose?

The claimant contends that either the first or the second question should be answered : yes.

The defendant contends that both should be answered : no.

15. We are not concerned in this case with the fact that section 67(1A) has been repealed prospectively by the Crime (Sentences) Act 1997 and replaced by section 87 of the Powers of Criminal Courts (Sentencing) Act 2000; this section is not yet in force. Its language is different. Section 87(1) (b), the provision equivalent to section 67 (1A)(b)(i) of the 1967 Act, applies where:

“the offender has been remanded in custody … 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.”

The claimant’s submissions

16. Mr Bogan started from the general proposition that the statutory provisions should be interpreted in favour of enabling periods in custody to count against terms of imprisonment, in the absence of clear wording to the contrary.
17. He submitted that the answer to the first question was “yes”, because the proceedings or process whereby criminal offences are tried could involve the trial of more than one charge. Here, there was but a single set of proceedings: the second or skip fire proceedings were added to the existing furniture fire proceedings to become one proceedings. The remand in custody which is in issue here was thus made in connection with the proceedings relating to the offence for which the claimant was sentenced; thus the skip fire offence related to the proceedings for the furniture fire in connection with which the remand was ordered. It did not matter if the relationship was established after the period in remand at issue had concluded. Any relationship in a single set of proceedings, such as by the inclusion of the offences in a single indictment, sufficed. Here a single set of proceedings was established at the Magistrate’s Court when, although there would have been two separate charges or informations perhaps linked by no more than the claimant’s name, they were disposed of together, even if only by a single bail decision. That procedural nexus was reinforced by the subsequent proceedings in the Crown Court and that unity could relate back to the time before the skip fire had been charged.
18. Mr Bogan’s alternative submission related to the second question : the remand in custody at issue was made in connection with proceedings from which the skip fire proceedings arose, that is the proceedings relating to the offence for which the six year sentence was passed. He submitted that it was analogous to a specimen charge. There was both a procedural link and an evidential link in that the basis for the prosecution case on both charges came from her admissions to her doctor and subsequently her admissions in the same interview to the police. It would have been perfectly possible for the police to have charged her with both offences at the same time; it might have been no more than happenstance that she was charged with the furniture fire offence rather than with the skip fire offence; it was always expected that the other offence would be taken into account and this procedural quirk should not deprive her of the entitlement to the inclusion of her time on remand in her sentence calculation, leaving it instead to the judgment or discretion of the sentencing judge.
19. Mr Bogan submitted that these circumstances were comparable with other circumstances in which he said there would be no doubt but that the time spent on remand would be counted: a remand for one charge which in fact resulted in a conviction on a lesser, alternative charge, such as a section 18 Offences Against the Person Act 1861 charge resulting in a section 20 conviction only; a charge of theft where at trial a count of handling is added to the same indictment and is the only offence of which the defendant is convicted (an illustration said to show how offences with very different ingredients could become related at trial by an amendment to the indictment); and convictions on a different set of specimen counts from those originally charged because eg some technical flaw had necessitated the substitution of a different set of charges.
20. He submitted that if the relevant nexus was between offences, the Prison Service could find itself engaged in a complex and difficult assessment of the offences and of the evidence, perhaps with only incomplete papers, in order to calculate sentence. This demonstrated that the relevant nexus was between the remand and the proceedings, which he contended it would be straightforward to determine. He suggested that if here the skip fire charge had simply been added to the indictment at trial and the claimant had been acquitted on the furniture fire count, there would have been no doubt in the minds of those passing or calculating sentence that the conviction arose from the same set of facts as the furniture charge and the period spent on remand would unquestionably have been counted. In effect says Mr Bogan, this is confirmed by the process of sentencing here where on the true facts, closely allied to those used in that illustration, all parties assumed that the period on remand would be allowed under section 67(1A)(b).
21. Mr Bogan referred us to R v Secretary of State for the Home Office ex parte Read (1987) 9 Cr. App. R.(S) 206. This case was of relevance to his argument not so much for the actual decision, because the precise issue which it addressed would not now arise in that way following R v Governor of Brockhill Prison ex parte Evans 1997 QB 443 D.Ct, but for the illustrations given as to the way in which the section was to be applied. Following Read’s conviction and imprisonment for robbery A, in respect of which he had been remanded in custody, he was charged and remanded on bail (though necessarily he remained in prison) in respect of robbery B which he had committed before robbery A. He was convicted and sentenced to a further period in prison concurrently. Read wanted his period on remand for robbery A to count against his sentence for robbery B. The decision that it could not do so would not now be relevant because following Evans, the two periods would be treated as one sentence. However McCullough J. with whom Woolf LJ agreed, held that the time spent on remand for robbery A did not come within section 67 (1A)(b) for the purpose of robbery B.
22. He broke down section 67 (1A)(b)(i) to three types of proceedings. He said at p.209:

“Section (1A) (b)(i) refers to periods in custody in connection with three types of proceedings. I will call them (a) (b) and (c). They are:

(a) proceedings relating to the sentence in question;

(b) proceedings relating to the offence for which that sentence was passed and

(c) proceedings from which either the proceedings in (a) or (b) arose.

An obvious example of a period of type (a) would be a period of remand in custody while reports were prepared after conviction but before sentence was passed.

An example of a period of type (b) would be a period of remand in custody during the course of the trial.

In my judgment periods of type (c) are periods spent in custody in circumstances such as the following. A man is charged with theft and remanded in custody. He is then committed for trial for theft, again in custody. An alternative count of handling is included in the indictment. He is acquitted of theft but convicted of handling and sent to prison. The period spent in custody before the count for handling was added would not be periods in custody which resulted from an order of the Court made in connection with proceedings relating to the offence of handling for which he was later sentenced, i.e. they would not be periods spent in custody by order of the Court in connection with proceedings from which the proceedings for handling arose.

Take also the man who has committed many offences of a similar type. Specimen charges are laid, say of offences A, B, C and D. He is then committed for trial for these offences. After committal counsel for the prosecution foresees that there might be a technical defence or a lacuna in the evidence in relation to A, B, C and D. He therefore includes counts E, F, G and H in the indictment, as he can if these appear from the evidence disclosed in the committal papers. The defendant is in the end acquitted of A, B, C and D but convicted of E, F, G or H. Any time spent in custody by order of the Court in connection with the proceedings in relation to A, B, C and D would count towards his sentence, these being periods of type (c).

23. It appears likely from the context that McCullough J. meant to say the precise opposite of what he is reported as saying in relation to a man remanded in custody for theft and sentenced on the alternative count of handling. At all events that situation was agreed by both parties here, and indeed by the Court to be a paradigm of the intended application of what McCullough J. called the third type of proceedings.

McCullough J. continued:

“The determination of a man’s LDR is something which should be beyond dispute. Parliament must have intended the provision whereby the determination is made to be easy to apply. This would not be so if the construction for which Mr Jones contends were correct. The Secretary of State would be in an impossible position. Imagine the inquiries he would have to make of the prosecution to discover whether they may have decided to institute one set of proceedings in consequence of something which happened in other proceedings, possibly a consideration known neither to the defendant nor his advisers. This would be unworkable. It is not something which Parliament could have intended.”

24. We acknowledge the sense of that comment, though as the number of cases on section 67(1A) shows, there will always be borderline cases where the question of the application of section 67(1A) permits no easy answer.

The defendant’s submissions

25. Miss Grey, for the Secretary of State, placed particular reliance on in Re An Application for Writ of Habeas Corpus on behalf of Adamson 2001 EWHC Admin 624. Adamson spent time remanded in custody for an offence of dishonestly obtaining a camera; after a brief period of bail, he was again remanded in custody for that offence and a different offence of dishonestly obtaining a watch on a date before the commission of the camera offence. He pleaded guilty to and was sent to prison only on account of the watch offence. He wanted section 67(1A) to apply to the first period in remand in custody for the camera offence. He said that although the offences were in respect of different items and were committed on different days, they were sufficiently linked because both involved the use of the same stolen credit card. The watch offence was either comprised in the camera offence or its proceedings arose out of the camera offence proceedings.
26. Newman J. with whom Brooke LJ agreed said:

“I am wholly unable to accept the submission which has been advanced. In my judgment it simply cannot arise on the facts of this case. The section is concerned with a connection of nexus in the proceedings, not in the much wider area of matters which can become related by investigations. Nor is he right when he submits that the facts in connection with the offence for which he was sentenced arose out of the facts in connection with the sentence for which he was initially placed in custody.”

27. Newman J. then pointed out that that was precisely the sort of situation which Counsel ought to draw to the sentencing judge’s attention by way of mitigating the sentence of imprisonment so that he might consider it and make such allowance for it as he might think appropriate. Mr Bogan sought to distinguish that case on the basis that this claimant had admitted to the two offences at the same time and that the prosecution had been handling the two offences simultaneously throughout; but he was prepared to submit that Adamson had been wrongly decided, although he hesitated to say that it was so obviously wrong that it should not be followed by another Divisional Court.
28. Miss Grey pointed out that there was no policy reason to give a strained interpretation to section 67(1A) in order that time spent on remand in custody should be allowed for: in so far as it was not covered by the section, allowance could be made where appropriate by the sentencing judge. The problem stemmed from a failure on the part of the advocates to consider whether time spent on remand would count and their consequent failure to address the sentencing judge upon that point. There were inevitably areas of uncertainty because the word “relating” involved questions of degree which could only be resolved on a case by case basis. In support of this general point she cited in re Smalley 1985 1AC 622 at 642-643.
29. She submitted in relation to the first question that at the time when the claimant was remanded in June 1998, there were no “proceedings” in existence in relation to the skip fire offence. The remand could not possibly relate to proceedings which had not commenced and when they did commence in March 1999, the subsequent remand was allowed for under section 67(1A). The fact that it had been anticipated by everyone from the outset that the skip fire would be dealt with by being taken into consideration did not create proceedings in respect of it. If the provisions of the first part of section 67 (1A)(b)(i) were given the meaning contended for by the claimant, the second part would have no purpose.
30. We were referred in this context to R v Towers 1988 Cr. AppR(S) 333 in relation to offences taken into consideration. Towers spent 13 days remanded in custody solely because of an offence which was simply taken into consideration. He submitted that that should count under section 67(1A) against his prison sentence for other earlier burglaries to which he pleaded guilty.
31. Turner J. giving the judgment of the Court, said at p.336:

“We now turn to the period spent on remand by order of the Court. The questions raised are:

(1) Was that order made in connection with any proceedings relating to the sentence imposed?

(2) Was it made in connection with any proceedings relating to the offence for which the sentence was passed?

(3) Was it made in connection with any proceedings from which proceedings relating to the sentence or the offence for which it was passed arose?

The answer in all three cases is, in our view, in the negative. As to (1), the order was made only in connection with proceedings which in no way related to the sentence(s) imposed on December 20 for burglaries, one of which had not even been committed when the order was made. As to (2), it follows from the earlier part of this judgment that the answer must be “No.” As to (3), the proceedings in the Crown Court for the two burglaries did not arise from the proceedings in connection with which the order of the magistrates was made. Those proceedings were entirely separate and independent proceedings. It is true that in the proceedings on November 20 when the sentences for the two burglaries were imposed the offences which had led to the magistrates’ order was taken into consideration, and thus that there was some tenuous connection between the two; but that is not enough.”

32. Miss Grey submitted that the indirect route provided by the second part of section 67 (1A)(b)(i) was of no application here either. The furniture fire charge did not create proceedings from which the proceedings relating to the skip fire offence or sentence arose. It was not the proceedings which were connected. There was a connection but it was solely in the area of investigation in that the evidence for them emerged together. The police proposal that the skip fire offence be taken into consideration did not create the connection envisaged by the third limb of section 67(1A)(b)(i). This case was closely analogous to Adamson which was correctly decided and could not be distinguished.
33. She accepted that where a remand for theft later resulted in a conviction for handling the same stolen goods, that period in remand would count because the two offences arose out of the same incident of criminal conduct. Likewise she accepted that a conviction for an offence under section 20 of the 1861 OAPA instead of an offence under section 18 would mean that time spent on remand for the latter would count against the time served in prison for the former. Neither of those examples would apply if there were two distinct offences such as a conviction for handling different stolen goods from those which were the subject matter of the theft charge or two different occasions of assault. Whether the specimen charges example was correct rather depended on the particular facts: it could depend on whether the other charges were disclosed by the committal papers or not which was the approach of the Court of Appeal in R v Adams and Davey 2001 EWCA Crim 1509 when considering whether an amendment to an indictment should be allowed.
34. Miss Grey also submitted that if the claimant’s arguments were right, there would have been no need for the decision of the Divisional Court in Evans to have been reasoned in the way in which it was. It would have been unnecessary to have considered treating different terms of imprisonment as a single term ; indeed those provisions would lose some of their purpose if the time spent in custody on remand counted by way of relation back in the way contended for by the claimant.

Conclusions

35. As I have said, the two relevant questions are:

(1) Was the claimant in custody from 13^th June 1998 to 7^th March 1999 inclusive in connection with any proceedings relating to the skip fire, which is what she was convicted of and sentenced for?

(2) Was the claimant in custody during that period for proceedings i.e. the furniture fire proceedings, from which the skip fire proceedings arose? Put another way, did the skip fire proceedings arise from the furniture fire proceedings?

36. In my judgment, the answer to both questions is clearly: no. I set out my reasons below.
37. Taking the first question first, she was in custody solely in connection with proceedings in connection with the furniture fire offence. There were no proceedings in existence during any part of that period in connection with the skip fire offence. The fact that the discovery of the offences had the same source and that evidence for both was provided by the same interview is not relevant. An investigatory or evidential nexus is not the relevant nexus as Adamson rightly makes clear. The proposal by the police that the skip fire be taken into account did not constitute proceedings in respect of it, nor would such proceedings have been constituted by the claimant’s acknowledgement at whatever date that she wanted those offences taken into consideration. Such a proposal or agreement does not fall within the scope of “proceedings” within section 67(1A). The very width of Mr Bogan’s submissions on relation to this part of the section, if correct, would have deprived the second part of the section of any practical application.
38. Turning to the second question, the skip fire proceedings did not arise from the furniture fire proceedings. The only connection between the offences is an evidential or investigatory connection, and that cannot mean that one set of proceedings arose out of the other. The only connection which might be seen as a procedural connection, in existence during the period in custody at issue, is that the police provided the claimant with a form upon which she could indicate acceptance of the commission of other offences which she wanted taken into consideration and she had acknowledged its receipt. However, neither of those actions can possibly constitute “proceedings” within the contemplation of section 67(1A): that word clearly conveys a form of formal court proceedings. The undoubted fact that at all times, it was generally assumed by both the police and the claimant that the other offence would be taken into consideration cannot turn the limited steps which had been taken into “proceedings”.
39. The purpose of the two parts of section 67(1A)(b)(i) is clear. The first part deals with remand periods for the offence in respect of which the term of imprisonment has been imposed; the second part deals with remand periods, not for the offence in respect of which the term of imprisonment was imposed, but for another offence the proceedings in respect of which gave rise to the later proceedings, leading to the term of imprisonment imposed. It obviously covers the lesser or alternative offence arising out of the same proceedings: the examples of the section 18 and 20 OAPA offences and of the theft charge which results in a handling conviction are in point. The example of the specimen charges which are substituted for other specimen charges may depend on its particular facts for a conclusion as to whether a connection between proceedings existed.
40. It is clear that the term “proceedings” in the section is intended to convey a formal court proceeding rather than merely something happening in the course of an investigation or prosecution of a criminal offence. Thus, “proceedings” will cover a charge, the laying of an information, committal for trial or sentence, the preferring of an indictment, and the individual counts on an indictment. It is important to remember that the section applies equally to proceedings in a Magistrates’ Court where charges are not joined in a single equivalent to an indictment even though they may be heard together.
41. However the key to the operation of the section here lies not so much in determining the meaning of “proceedings” as in determining the existence of a relationship of sufficient proximity between, for the first part of section 67 (1A)(b)(i), the remand offence and the sentence proceedings and for the second part, between the remand offence proceedings and the sentence offence proceedings. The case of In re Smalley shows that the concept of “relating to” is one of degree and not one which is black and white. The question of whether the degree of proximity is sufficient in a particular case, depends on the purpose of the statutory provision and the relevant facts. The existence of the judicial power, aside from the section, to take into account time spent on remand in custody means that a closer degree of connection can be required for the operation of the section than if that were not the case.
42. The difficulties in this case arise chiefly from the necessity on the part of the claimant’s submissions to give a strained interpretation to the section in order to ensure that any time spent on remand in custody is not, in Mr Bogan’s word, “wasted”, that is to say not allowed to count against a prison sentence. But the fallacy underlying that approach is to suppose that section 67(1A) provides the only means whereby allowance can be made for time spent on remand. The sentencing powers of the judge and the appellate powers of the Court of Appeal, Criminal Division, also form part of what might be called the mechanisms of distributive justice. Although the extent of any allowance, in any particular case falling outside section 67(1A) is a matter for the judgment of the courts, that feature cannot of itself favour a strained reading of section 67(1A). Section 67(1A) simply reflects the fact that Parliament has created a system in which the allowance for time spent in custody on remand is in part automatic and in part dependant on the judgment of the courts. There is no policy reason to enlarge one as opposed to the other.
43. Of greater importance is consistency in approach in order to achieve such certainty as the section permits. Accordingly, even if I had taken the view that the decision in Adamson was arguably wrong, which I do not, I would have adhered to it. The same applies to the illustrations given by McCullough J subject to reading his first illustration as falling within the section as I believe he meant to say, and subject to the reservation about the particular circumstances of specimen charges. Whilst I accept the virtue of a simple approach to a section which has to be applied by judges and by the Home Department without extensive research, the variety of circumstances which a sequence of remands for a variety of offences can give rise to, coupled with the many possibilities inherent in the trial process, means that no simple and definitive answer apt for all situations can be laid down. It is inevitable that there will still be a case by case approach.
44. Adams and Davey does show the range of situations which can arise as charges are reformulated to reflect further evidence and its appraisal by the prosecution. But that reinforces the need for case by case decisions in relation to the application of section 67(1A) and the difficulty of laying down guidance to fit all situations, a task which Parliament has not itself undertaken in the statutory language which it has employed.
45. The fact that after 8^th March 1999, the claimant was committed for trial on both charges, which were to form two counts on the same indictment, cannot alter the factual or legal basis upon which she was remanded in custody in June 1998. There is no scope for that subsequent unity of proceedings to relate back to a time when the skip fire proceedings had not been commenced and formed no part of the legal basis for her remand in custody. The decision of the Divisional Court in Evans proceeds on the basis that there is no such relation back, otherwise its approach to the single term of imprisonment arising from multiple sentences would have been very different.
46. The disadvantage of an approach which focuses on the final form of proceedings before the court of trial or sentence and which could retrospectively affect the application of the section can be seen when contemplating the consequences of the application of the Indictment Rules on joinder, misjoinder and severance of indictments. The application of those Rules, which have their own distinct purpose, cannot determine whether or not the provisions of section 67(1A) apply. All these considerations go to support the avoidance of a strained interpretation of section 67(1A).
47. Another problem with focusing on the precise form of proceedings and with the application of the illustration suggested by McCullough J in Read in relation to specimen charges which depended on whether the other charges arose from the committal papers is that there may not always be committal papers. Here, there would not have been committal papers in August 1998, when the furniture fire offence was committed for sentence to the Crown Court. Yet it cannot be right for the operation of the section to turn on whether the committal to the Crown Court was for trial or sentence.

Delay

48. I should add that Miss Grey raised the question of delay, referring to the period which had elapsed from the decision of the Home Department’s Sentence Calculation Unit dated 15^th December 1999 and conveyed to the claimant in a “Release Dates Notification Slip” until the lodging of the application for permission to apply for judicial review, which was said to be almost two years out of time. Miss Grey did not press this point. The Writ of Habeas Corpus would have been available to test the lawfulness of the claimant’s continued detention and it might have been thought that each day’s detention after the claimant should have been released could have been challenged as an unlawful act.
49. Accordingly, for those reasons , I conclude that this application for judicial review must fail.

The criminal appeal

50. Following the conclusion of the argument on section 67(1A) the Court reconstituted itself as the Court of Appeal, Criminal Division. The claimant sought and was granted an extension of time in which to renew her application for leave to appeal against sentence. She contended that when HHJ Hopkin sentenced her, he must be taken to have assumed that the whole of the time which she had spent on remand in custody would be taken into account in the calculation of her sentence. Had he thought otherwise he would surely have made some comment to that effect. We agree. No mention of the problem was made by either Counsel then appearing.
51. Miss Grey properly raises the point, by way of comment on the claim that a full allowance should be made by this Court for the whole time spent on remand in custody since June 1998, that as the six year sentence was passed under the provisions of the then section 2(2)(b) of the Criminal Justice Act 1991, as a longer than commensurate sentence in order to protect the public from serious harm from the offender, the sentencing judge must have been looking forward from the date of sentence to the release date. That release date would not have been affected, nor the risk of serious harm to the public, by the time which she had already spent on remand.
52. We do not consider that point to be sound. HHJ Hopkin would have anticipated a release date when setting the term at six years. He assumed, we consider, that the whole period spent in custody would be taken into account and reached his judgement as to the time needed for the protection of the public on that basis. We consider that the allowance would and should have been made by way of a broad assessment rather than a precise calculation of the way in which section 67(1A) would have operated. We consider that a reduction in her sentence from six to five years reflects properly the period of just under nine months which she spent in custody on the furniture fire offence which cannot be take into account under section 67(1A). Such an allowance ought in fairness to be made.
53. To that extent, I would allow this appeal.
54. Mr Justice Colman : I agree.
55. Lord Justice Kay : I also agree.