R v Gavin Stephen Gordon; R v Taylor; R v D; R v Pusey; R v Shaukat; R v McManus
| Jurisdiction | England & Wales |
| Judge | President of the Queen's Bench Division |
| Judgment Date | 09 February 2007 |
| Neutral Citation | [2007] EWCA Crim 165 |
| Docket Number | Case No: 200602373/A8 (2) 200605525/A5 (3) 200604421/A6 (4) 200605634/A5 (5) 200605238/A6 (6) |
| Court | Court of Appeal (Criminal Division) |
| Date | 09 February 2007 |
[2007] EWCA Crim 165
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT NORTHAMPTON (1)
RECORDER MAINDS
ON APPEAL FROM THE CROWN COURT AT SNARESBROOK(2)
HIS HONOUR JUDGE PARDOE QC
ON APPEAL FROM THE CROWN COURT AT MANCHESTER(3)
HIS HONOUR JUDGE ADRIAN SMITH
ON APPEAL FROM THE CROWN COURT AT INNER London (4)
HIS HONOUR JUDGE CAMPBELL
ON APPEAL FROM THE CROWN COURT AT SOUTHAMPTON(5)
HIS HONOUR JUDGE BOGGIS QC
ON APPEAL FROM THE CROWN COURT AT STAFFORD (6)
RECORDER P.S. SANGHERA
The President of the Queen's Bench Division
Mr Justice Treacy and
The Hon. Sir Michael Wright
Case No:
200603240/A2 (1)
200602373/A8 (2)
200605525/A5 (3)
200604421/A6 (4)
200605634/A5 (5)
200605238/A6 (6)
Miss V. Ramsden for the appellant Gordon (1)
Miss M. Savvides for the Prosecution in Gordon (1)
Miss B. Campbell for the appellant D (2)
Taylor—non-counsel application (3)
Pusey—non-counsel application (4)
Shaukat—non-counsel application (5)
Mr Mark Ellison and Mr Adrian Darbishire (instructed by the Attorney General to assist the Court)
President of the Queen's Bench Division
This group of appeals and applications for leave to appeal raised common questions about the operation of and interaction between s 67 of the Criminal Justice Act 1967 (“the 1967 Act”) and s 240 of the Criminal Justice Act 2003 (“the 2003 Act”) and the impact on the sentencing process of time spent by defendants in custody on remand. Taken as a whole this group of cases also required further analysis of the statutory provisions governing remand time, recall on licence, return to prison by order of the court and imprisonment or detention for public protection. We have also reflected on the jurisdiction of the Crown Court to correct its own errors, and the effect of s 11(3) of the Criminal Appeal Act 1968 (now s 155 of the Powers of Criminal Courts (Sentencing) Act 2000 (the 2000 Act)) in the context of the decision of this Court in Norman [2006] EWCA Crim 1792.
We were greatly indebted to Mr Mark Ellison and Mr Adrian Darbishire instructed by the Attorney General for meticulous written and oral submissions which helped us find our way through a complex body of legislation. The judgment on the broad principles is heavily dependent on these submissions, and effectively quotes substantial portions of the written submissions. It would be something of a comfort if their impressive work could guarantee that our analysis was free from error or oversight. In this area of legislation however, experience has shown that hidden traps abound, and we, not they, are responsible for any failures to recognise and avoid the traps.
Time spent on remand
S 67 of the Criminal Justice Act 1967 provides:
“67(1) The length of any sentence of imprisonment imposed on an offender by a Court shall be treated as reduced by any relevant period, but where he was previously subject to a probation order, a community service order, an order for conditional discharge or a suspended sentence in respect of that offence, any such period falling before the order was made or suspended sentence passed shall be disregarded for the purposes of this section;
(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 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; or
(ii) by reason of his having been so committed and having been concurrently detained otherwise by an order of a Court.”
The effect of schedule 6 paragraph 1 of the Crime (Sentences) Act 1997 and Article 2 of para 2 of the Crime (Sentences) Act 1997 (Commencement No. 4) Order 2005/932 was to repeal s 67 of the 1967 Act, subject to the following savings provision:
“…
(3) The commencement of the provisions …is of no effect in a case in which a court has imposed a sentence of imprisonment in respect of an offence committed before 4 April 2005 (whether or not it is also imposed a sentence of imprisonment in respect of any offence committed after that date)”.
The result is that s 67 of the 1967 Act continues to apply to sentences of imprisonment imposed in relation to offences committed before 4th April 2005. The date of the offence is critical. If it was committed before 4th April 2005 no order in relation to time spent on remand in custody is required. The period will automatically be deducted from the sentence. So far, so good.
The regime for offences committed on or after 4th April 2005 is governed by s 240 onwards of the 2003 Act. This provides:
“240(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,
(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….
(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…
242(2) References in sections 240 and 241 to an offender being remanded in custody are references to his being –
a) remanded in or committed in custody by order of a court,
b) remanded in or committed to local authority accommodation…
c) remanded, admitted or removed to hospital under section 35, 36, 38 or 48 of the Mental Health Act 1983.”
One immediate but relatively unimportant distinction between this provision and s 67 of the 1967 Act is that police detention does not fall within the ambit of a remand in custody under s 242(2) of the 2003 Act. Accordingly, in relation to sentences subject to s 240, it is no longer treated as a “relevant period” for the purpose of calculating time served on remand. Such days in police detention are not deductible. Section 240 expressly underlines that any deduction for time served is related to the number of days for which the offender was remanded for the offence which resulted in the sentence of imprisonment, or for an offence related to it, in the sense that it was “founded on the same facts or evidence”. We simply note that such a link is not always present.
The most important distinction however is that for sentences to which s 240 applies, the deduction for time spent on remand no longer follows automatically. The court is required positively to order that the days during which the offender was remanded in custody in connection with the offence or a related offence shall count as part of the sentence. Without a specific order no deduction can be made. In short, despite the provision which requires the court to make the order, the deduction will not be made and the time served will not count towards the sentence unless the court expressly orders it.
The obligation to direct that time remanded in custody should count as time served is subject to the further provisions in s 240 itself:
“(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 the 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.”
These provisions enable the court to disapply s 240(1) if, but only if, the situation either falls within rules made by the Secretary of State or the court considers that it would be “just” that credit should not be given. An example of such a case is found in R v Pusey below. However in such cases it remains essential that the decision should be announced, and the reasons for it explained in open court. Given this limited range of exceptions to what would otherwise be an apparent entitlement to credit, it might be reasonable to assume that unless the court directs that the credit arrangements should be disapplied, they would follow automatically. As Norman demonstrates, that is not how the statutory regime operates. For time served to be counted, an express direction is required. Its omission, if made in error or by oversight, must be addressed within 28 days. Otherwise the jurisdiction of the Crown Court ceases, and the omission must be dealt with through the appeal process.
It is convenient to notice that provision is made for offences which...
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