R v Shane Martin Norman and Others
| Jurisdiction | England & Wales |
| Judgment Date | 20 July 2006 |
| Neutral Citation | [2006] EWCA Crim 1792 |
| Docket Number | Case No: 2006/1032/A6 & ORS 2006/0740/A4 2006/0979/A6 2006/1204/A1 2006/1193/A0 |
| Court | Court of Appeal (Criminal Division) |
| Date | 20 July 2006 |
[2006] EWCA Crim 1792
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM (1)THE CROWN COURT AT MIDDLESBOROUGH
HIS HONOUR JUDGE TAYLOR
(2)THE CROWN COURT AT WOLVERHAMPTON
MR RECORDER BAKER, QC
(3)THE CROWN COURT AT MIDDLESEX GUILDHALL
HIS HON JUDGE SIMON SMITH
(4) THE INNER LONDON CROWN COURT
HIS HON JUDGE VAN DER WERFF
5) THE CROWN COURT AT BLACKFRIARS
HIS HONOUR JUDGE WALKER
(6)THE CROWN COURT AT SWANSEA
HIS HONOUR JUDGE GERALD PRICE
Lord Justice Latham
(Vice President of the Court of Appeal Criminal Division)
Mr Justice Forbes and
Mr Justice Irwin
Case No: 2006/1032/A6 & ORS
2006/1032/A6
2006/0740/A4
2006/0979/A6
2006/1204/A1
2006/1193/A0
Mr Richard Whittam (instructed by CPS York) for the Prosecution
A Braithwaite (instructed by Clark Willis Solicitors, 105, Bondgate, Darlington) for the appellant Shane Martin Norman
S Crawford (instructed by Challinors Ltd) for the appellant Jameed Hussain
J Shepherd (instructed by Powell Spencer & Partners) for the appellant Jason Egan
P Shaw (instructed by Harters, London) for the appellant Lee Alan Walton
N Marney (instructed by Rock Solicitors) for the appellant Ambrose Otsemobor Igbanoi
F Phillips (instructed by Graham Evans & Partners) for the appellant Rodney Phillip Cory
Lord JusticeLatham:
These appeals raise a variety of issues arising out of the provisions of section 240 of the Criminal Justice Act 2003 (the 2003 Act). This section imposes an obligation on judges when passing sentence to make a specific direction that the number of days that the offender has spent in custody on remand in connection with the offence or a related offence should count as part of the sentence being served. We will return to the detailed provisions later. The purpose of the Section was to bring clarity and transparency to the process of sentencing, and in particular to the effect of any particular sentence. It replaced, in relation to offences committed on or after the 4 th April 2005, the commencement date of the relevant provisions, section 67 of the Criminal Justice Act 1967 (the 1967 Act) under which period spent in custody on remand were taken into account administratively by the Prison Service when calculating the number of days that a particular prisoner had to serve. The application of this provision has undoubtedly caused difficulty, not least because of successive amendments to deal with changing sentencing regimes.
The principle behind both section 67 of the 1967 Act and section 240 of the 2003 Act, is that time spent on remand should count towards the serving of the sentence ultimately imposed. But, like many apparently clear principles it is not always easy to apply in practice. Although the six appeals raise a number of different issues, a clear theme emerges, which is that there are difficulties in ensuring that courts have accurate information about relevant periods of custody at the time of sentence, and what a court should do if it is subsequently discovered that incorrect information has been given. This problem was referred to by the court in R -v- Oosthuizen [2005] EWCA Crim 1978. The present cases provide an opportunity to look in more detail at the relevant statutory provisions.
Section 240 of the 2003 Act provides:
"(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 of 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 also been remanded in custody in connection with other offences; or
(b) has also been detained in connection with other matters.
(3) Subject to sub-section (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) Sub-section (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) A sentence 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 sub-section.
(5) Where the court gives a direction under sub-section (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 sub-section (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 sub-section (4), or
(b) that it is of the opinion mentioned in paragraph (b) of that subsection and what the circumstances are.
………..
(8) for the purposes of the references to sub-section (3), to the term of imprisonment to which the person has been sentenced (that is to say, the reference to his "sentence"), consecutive terms and terms which are wholly or partly concurrent are to be treated as a single term if –
(a) The sentences were passed on the same occasion, or
(b) Where they were passed on different occasions, the person has not been released under this Chapter at any time during the period beginning with the first and ending with the last of those occasions.
….
(10) This section applies to a determinate sentence of detention under section 91 of the Sentencing Act or section 228 of this Act as it applies to an equivalent sentence to imprisonment."
The rules referred to in sub-section (4) are contained in The Remand in Custody (Effect of Concurrent and Consecutive Sentences of Imprisonment) Rules 2005 (the 2005 Rules). These provide by Rule 2:
"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 day he was serving a sentence of imprisonment (and it was not a day one which he was on licence under Chapter 6 of Part 12 of the 2003 Act or Part 2 of the Criminal Justice Act 1991; or
(b) Where the term of imprisonment referred to in sub-section (1) of that section is ordered to be served consecutively on another term of imprisonment, if the length of that other term falls to be reduced by the same day by virtue of section 67 of the Criminal Justice Act 1967."
It should be noted that section 240 of the 2003 Act applies only where a sentencing judge imposes a determinate sentence in relation to an offence committed on or after the 4 th April 200The judge, as we have already said, is under a duty under section 240(3) to give a direction as to the number of days which the offender was remanded in custody which are to count as time served by him as part of the sentence. That must be stated in open court. And if the number of days to count towards the sentence is less than the number of days for which he was remanded in custody, the judge must explain which of the provisions of Section 240(4) is being applied, and if it is section 240(4)(b) what the circumstances are which justify the conclusion that it would be just not to give a direction.
In December 2004 the Sentencing Guidelines Council issued a guideline entitled "New Sentences: Criminal Justice Act", which in relation to Section 240 was summarised in the following terms:
"The court should seek to give credit for time spent on remand in all cases. It should make clear when announcing sentence, whether or not credit for time on remand has been given and should explain its reasons for not giving credit when it considers that this is either not justified, would not be practical, would not be in the best interest of the offender."
This obligation can only properly be met by the court if it is provided with reliable information. This task is undertaken by the Prison Service in accordance with Prison Service Order No 6650. The National Offender Management Information System will, it is hoped, ensure that the relevant information is available to the courts. And we understand that the Prison Service intend to have an Establishment Liaison Officer who will be a single point of contact for the courts and available at short notice by telephone. But it is likely that the problems will still arise.
If inaccurate information has been given, the only express power which a court has to correct any resulting mistake is under section 155 of the Powers of the Criminal Courts (Sentencing Act) 2000 (the 2000 Act) which provides:
"(1) Subject to the following provisions of this section, a sentence imposed, or other order made, by the Crown Court when dealing with an offender may be varied or rescinded by the Crown Court within the period of twenty-eight days beginning with the day on which the sentence or other order was imposed or made or, where sub-section (2) below applies, within the time allowed by that sub-section.
….
(4) The sentence or other order shall not be varied or rescinded under this section except by the court constituted as it was when the sentence or other order was imposed or made, or where...
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