QUEEN'S BENCH DIVISION
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE SIMON
| The Queen on the Application of Jamie Hicks
|- and -
|The Crown Court at Snaresbrook
The Governor of HM Prison, The Mount
Miss G Ward (instructed by The Treasury Solicitor) for the Defendant
Mr J Jolliffe (instructed by The Treasury Solicitor) for the Interested Party
Hearing dates 9th November, 2012
Crown Copyright ©
Lord Justice Moses:
"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."
"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)…"
" 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."
"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.
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."
"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."
"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."