R v Mark Leacock and Others
| Jurisdiction | England & Wales |
| Judge | The Lord Chief Justice of England and Wales |
| Judgment Date | 12 November 2013 |
| Neutral Citation | [2013] EWCA Crim 1994 |
| Docket Number | Case Nos: 2013/03024/A2, 2012/06483/A3, 2013/00843/A5, 2013/01160/A1, 2013/02109/A7 |
| Court | Court of Appeal (Criminal Division) |
| Date | 12 November 2013 |
[2013] EWCA Crim 1994
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Lord Chief Justice of England and Wales
Mr Justice Mackay
and
Mr Justice Sweeney
Case Nos: 2013/03024/A2, 2012/06483/A3, 2013/00843/A5, 2013/01160/A1, 2013/02109/A7
J Coningham (Leacock) H Gray (Blacker), A Rose (Trevis) F Williams (who did not appear below for Nutting), A McGee (Morin) for the Appellants
Ben Lloyd for the Respondent
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
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.
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.
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.
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."
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
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
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.
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."
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.
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.
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.
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
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...
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