Keogh, R v

MR JUSTICE LEVESON: On 10th July 2003, for the offence of burglary, this appellant was sentenced to a term of two and a half years' imprisonment by His Honour Judge Zucker QC at the Crown Court at Wood Green. Because the offence for which he was being sentenced was committed in breach of the terms of his licence, the learned judge activated what he understood and expressed to be "the remaining period of your remaining previous sentence", described as five and a half months. He also ordered that if the periods imposed for breach of licence were not accurate, the case should be brought back within 28 days for correction. No such application was made.

The appellant appealed to this court solely against the sentence of two and a half years' imprisonment. No criticism was made either of the decision that the entire period remaining outstanding on licence should be served, or of the calculation of that period of five and a half months. The court took the view that there was force in that appeal and reduced the term to 18 months' imprisonment, making no alteration to the sentence in respect of the breach of licence.

Thus, following the decision of this court the appellant believed that he would be released on 1st May 2004. It was then discovered that there had been two errors in relation to this calculation. The first, brought to the attention of the court by the appellant, is that because he had been recalled by the Secretary of State before his licence had been revoked, and he had been recalled prior to his arrest for the burglary, the period which he spent between 9th May 2003 and 10th July 2003, which was thought to be on remand and so deductible from the new total of 23 and a half months' sentence, was in fact being served as a recalled prisoner and so did not count. His release date was not, therefore, in fact 1st May 2004, but rather 2nd July 2004.

It is argued on his behalf that the failure to appreciate this fact has acted unfairly upon him because he is having to serve longer than was visualised when the learned judge passed sentence and, had he known that this period would not have counted, forceful submissions could have been made to the effect that the period to be served should be reduced in consequence.

Reliance in relation to that submission would have been placed upon the decision of this court in Sharkey [2000] 1 Cr App R 409, Stocker [2003] EWCA Crim 121 and Brown [2004] EWCA Crim 496.

Thus, the Criminal Cases Review Commission has referred the sentence to the court.

We accept the broad thrust of this submission, but we also have regard to a further error made by the authorities. Thus, the total sentence to which the appellant was subject to recall was not in fact five and a half months, as Judge Zucker understood, but rather just over ten months, assuming an error in the documentation provided by the Police National Computer in relation to the recording of a previous breach of licence. This assumption, it is accepted, is well-founded given the release date of the appellant pursuant to that sentence.

In any event, the period of five and a half months appears to be the difference between the date of return to custody and the licence expiry date, whereas the latter is the difference between the date of the return to custody and the sentence expiry date.

Had Judge Zucker known that fact, in the light of his expressed intention to impose the full outstanding period, and the fact that he imposed such a period on a co-accused, it is clear that he would have done so. Equally, had this court been aware of the error made in the Crown Court, the sentence could have been adjusted to reduce the term for the burglary but increase the licence, which would not have increased the overall custodial term.

Should the court ignore the error made in the calculation of the period outstanding on licence while allowing the appellant now to benefit from the error made in failing to have regard to the period served as a recalled prisoner?

The sentence can never be increased, but there is much to be said for the argument that if the true facts had all been known at the time of sentence, or even when the matter came before this court, his earliest release date would not yet in fact have arisen, so that there is no injustice in leaving the date as it presently stands. On the other hand, for a period following the appeal hearing the appellant has had the expectation that he would be released earlier than now transpires might be the case.

Whereas we do not consider that the appellant is entitled to receive a sentence less than he would otherwise have received and so be put in a position of a release date of 1st May, we take the view that justice would be served by making some allowance for this error, and the expectations that it generated, by reducing the period to be served on licence to 78 days, so as to permit his immediate release.

It remains only to observe that this case represents a cautionary tale for the authorities responsible for advising courts about the effect of previously imposed sentences. It is absolutely essential that the authorities and those advising the prosecution service represent accurately the position of each defendant appearing before a court in order that accurate decisions can be made in sentences passed.

MR MEREDITH: Thank you, my Lords.

LORD JUSTICE HOOPER: Thank you both very much for coming. You will explain to your client that we would have liked to have him here, but that we have a busy day and we are very grateful to him for having waived. You will explain to him now, I hope, what has happened.

MR MEREDITH: My Lord, of course.

LORD JUSTICE HOOPER: And that you accepted that that was the right thing.

MR MEREDITH: Indeed, thank you.